GLASGOW, 6th March 2002. The Sheriff, having resumed consideration,

FINDS-IN-FACT:

(1) The pursuer (30) is a social work assistant employed by Glasgow City Council in the Children & Families Division. He also works part-time some nights in Bennett's Bar and Nightclub, Glasgow, known to be frequented by homosexuals. He is legally aided in this action.

(2) The defender (32) teaches drama as principal teacher for Performing Arts in a Roman Catholic secondary school in Glasgow. She is not legally aided.

(3) The pursuer and defender are the natural parents of A, born by Caesarean section. The pursuer signed the birth certificate as father of said child (production No 5/1).

(4) For 13 years, the pursuer has been in a homosexual relationship with his partner B, a social worker and presently a Social Work Research Fellow at Stirling University.

(5) For 9 years the defender has been in a lesbian relationship with C, formerly a manager in a computer shop.

(6) On 28 September 1993, in Glasgow, the defender married D, a homosexual who was an officer in the US Navy, based in Edzell, Scotland, and who was the partner of E, the brother of said C. The said C and E were the witnesses at said marriage ceremony. It was a marriage of convenience, the aim of which was to defeat the immigration laws in order that D might remain in the UK, to continue his homosexual relationship with E.

(7) Production No 5/6 is the marriage certificate. Said marriage certificate was sent to the Home Office, resulting in the issue of a temporary visa for D.

(8) When the relationship ended between E and D, the defender applied for and was granted a divorce at Glasgow Sheriff Court on 28 October 1998 (production No 6/5A). Said D returned to the USA.

(9) For some time the defender and C wished to have a child by artificial insemination by a donor.

(10) Some years ago, it was decided that C should become pregnant.

(11) They advertised in the Pink Paper, a magazine circulating within the UK homosexual community, considered the replies and found a male, who visited monthly for about 9 months.

(12) Attempts at AID were unsuccessful so far as C was concerned. The defender, for a few months, then tried to become pregnant with said male, by artificial means, again unsuccessfully. C tried to become pregnant unsuccessfully artificially with a few other males.

(13) An advert was also placed in the List, a Glasgow publication, for a male. The person replying was deemed to be unsuitable, as he wished physical contact.

(14) Through the pursuer's work at Bennett's Bar and the brother of C, the defender and C made contact with the pursuer. In about 1995/1996, there had been casual talk between the pursuer and the defender about parenthood.

(15) The defender and C enquired of the pursuer as to whether he wished to be involved in such an arrangement. The pursuer was reluctant, initially, to be involved.

(16) After some time, the pursuer agreed, having discussed it with his family and partner. He gave it thought and decided he wanted to become a father.

(17) The pursuer's partner warned him of difficulties which such an arrangement could produce.

(18) The pursuer was promised extensive contact in relation to the child after the birth of the child. It was understood that any child would be brought up by the defender and C.

(19) In the course of his work as assistant social worker, the pursuer regularly supervises contact between parents and children on behalf of the social work department. Since 1987, he has had experience in dealing with children of all ages and in particular, for 4 years has been involved in social work department work required for the children's panel. He has previously worked in the residential care area, involving young people aged 10-16 years of age. He often deals with vulnerable children and adults.

(20) The pursuer has had experience of looking after his own nephews and nieces from time to time.

(21) The pursuer was given an information sheet on do-it-yourself artificial insemination (production No 6/4), by the defender and C.

(22) The pursuer attended their house for about 3 months, produced semen, which he gave to the defender and C, who used it via a plastic syringe for AID.

(23) When the pursuer visited the house, he brought male homosexual pornographic material with him, which he left at the defender's house. He brought the magazine "Boyz" (production No 5/8) and the "Pink Paper" (production No 5/7). Boyz contains pornographic articles which use foul language, photographs of men advertising themselves for sex, other sexual images and homosexual erotica. It is freely available at Bennett's Club. Despite its contents, it is considered mainstream gay literature.

(24) The pursuer visited occasionally during the pregnancy. He was invited to the hospital and attended to see a scan of the growing child. He was not invited to other ante-natal appointments.

(25) During the course of the pregnancy the pursuer took the defender to introduce her to his mother and family. The defender took the pursuer to introduce him to her parents.

(26) The pursuer was invited and attended hospital when the defender was giving birth, although he waited in a waiting room. C was present at the birth, which was by Caesarean section.

(27) Many of the pursuer's relatives visited the defender in hospital, with gifts.

(28) When the defender returned home with A, the pursuer visited frequently and, indeed, daily for the first week. He had been granted a week's paternity leave by his employers, which he used to visit the defender and A, to assist the defender, since C was still working.

(29) The defender was overwhelmed by his feelings in becoming a father.

(30) The pursuer met the defender and C and chose a pram, which was paid for by the pursuer. The pursuer purchased toys and others items for A. He gave the defender baby-clothes which cost several hundred pounds, some of which were later returned unused by the defender to the pursuer.

(31) The pursuer attempted to provide aliment for said child and agreed to send £55 per two weeks. The defender provided the pursuer with details of a bank account for said child into which the pursuer paid £110 on 13 November 2000.

(32) After the raising of this action, the defender refused aliment for said child. The pursuer thereafter set up an account and has made deposits of aliment in it on behalf of the child. Further, he has taken out an endowment policy for £20,000 for said child, which matures when he is 18 years old, in order to fund further education for him. The payment for said policy is between £50 and £60 per month.

(33) Aliment for A was returned to the pursuer in an envelope placed between videos, which the defender was returning to the pursuer, via the pursuer's mother, who was unaware of the envelope.

(34) As at September 2001 when the pursuer was giving evidence, the amount in said account for aliment was between £1,250 and £1,270.

(35) When A was only a few weeks old, the defender occasionally allowed the pursuer to take A away from the house. She expressed breast milk for the pursuer to give to A. He was away from the house for one to two hours, on one occasion, at the pursuer's house. On other occasions she accompanied them. On another occasion the defender and C left A with the pursuer and his partner while they went elsewhere.

(36) When A was about 6 weeks old, the pursuer was allowed overnight contact with A in the defender's house. The defender and C were present in the house, but not in A's bedroom.

(37) On another occasion, the pursuer took A to his own Mum's house to meet his family.

(38) On one occasion he took A to his office to let his fellow employees see A.

(39) About a week after A's birth, the defender and C visited the house of the pursuer and B with A for a meal.

(40) The pursuer has a room set aside in his house for A which is decorated for a child, and contains toys, et cetera.

(41) The defender had maternity leave (3 months) from school. C finished her work about mid-October 2000. The defender and C had agreed for financial reasons that C, who was a manager in a PC company, and whose work was less well paid than the defender, would give up work and look after A. In the event, the defender did not return to her work until after Easter 2001, for health reasons.

(42) C has the day-to-day care of A until the defender returns from work to look after A in the evenings and weekends.

(43) A is a healthy, energetic and active little boy, whose development is age-appropriate.

(44) The defender and C resented the pursuer's presence with A and asked him to visit less frequently. The pursuer was seeing A every two days or so.

(45) The pursuer had been concerned as to his own status in respect of A, prior to A's birth. He suggested to the defender, when A was about 5 or 6 weeks old, some form of agreement. There was discussion about a minute of agreement, involving contact between the pursuer and A on a Sunday afternoon for 3 hours and Monday and Wednesday evenings. The defender was prepared to try those proposals at that time.

(46) Prior to the birth, the name C in respect of C, had been discussed between the pursuer and the defender, but after the birth, it was intimated to the pursuer that both the defender and C were to be called Mummy by A. The pursuer reluctantly went along with that so as not to jeopardise a difficult situation at the time.

(47) On 8 December 2000, the pursuer's 30th birthday, the defender and C sent the pursuer a T-shirt bearing a picture of A printed on the front with the words "Happy Birthday Daddy".

(48) The pursuer is a reasonably intelligent, kind, thoughtful person with a good capability in dealing with children. He can offer relaxed and happy contact with A, with long-term commitment. He exhibited an open and honest approach in respect of difficult issues in the unusual circumstances of the present and future situation of A. He has much to contribute, practically and emotionally, apart from financially, to A's future direction and guidance.

(49) When A was 5 or 6 weeks old, the pursuer asked the defender for parental rights and responsibilities to be regulated by agreement and produced a form in respect of section 4 of the Children (Scotland) Act 1995, which he requested the defender to sign.

(50) The defender and C discussed the matter, and after the defender took legal advice she refused to sign an agreement.

(51) Matters have deteriorated since then. As a result of the pursuer's request for parental rights and responsibilities, the defender, in about December 2000 reduced the pursuer's contact to 2 hours each Sunday within A's home, in her presence. His parents' contact with A was also ceased, the last visit being in January 2001, apart from one visit, during the court of court proceedings.

(52) The pursuer raised a court action for parental rights and responsibilities and contact in November 2000, when A was about 9 or 10 weeks old.

(53) Since then the pursuer has not been given any information of importance about A's health or development by the defender, nor has he been involved in discussions about the child's future.

(54) On 1 February 2001 a child welfare hearing was held in Glasgow Sheriff Court as a result of which, the hearing was continued, in order to monitor contact, and for parties to attempt to come to an agreement. At the continued child welfare hearing on 26 April 2001, the pursuer was granted contact with A for 2 hours on Sundays and, the Sheriff, having heard parties, ex proprio motu directed that C should not be present in the house at said contact. The defender was to be in another room.

(55) Such contact has taken place since then, although somewhat strained.

(56) A compilation video (production No 5/4) of contact visits between the pursuer and A was lodged and viewed in court.

(57) On 6 February 2001, the defender and C sent an e-mail (production No 5/2) to the pursuer setting out their proposals for contact, including residential contact, until A was about 9 years old. The proposals, set out in the e-mail were:-

(58) The second last paragraph of said e-mail reads:-

(59) The second last sentence of said e-mail reads:-

(60) The defender did not feel pressurised by the pursuer at that time.

(61) At present A is well looked after by the defender and C. His physical and emotional needs are satisfied at present.

(62) Professor Furnell, advocate and child psychologist, prepared a report on behalf of the defender, which is production No 6/3.

(63) Since the birth of A, the defender has experienced stress. She did not return to work until Easter 2001, being certified medically unfit.

(64) From February 2001 to December 2001 she had lost 11/2 - 2 stones in weight, had difficulty sleeping at night, and had been absent from work on several occasions.

(65) She visited her GP, sometimes with A, on eight  occasions in total between October 2000 and 6 December 2001. She has not been prescribed any medication for stress.

(66) A medical report, production No 6/6, dated 6 December 2001, was written by the defender's GP, who gave evidence on 11 December 2001.

(67) The relationship between the defender and C has been affected by the situation.

(68) The defender attributes her stress to the pursuer's contact with A and the legal proceedings.

(69) The pursuer has suffered stress, and has for periods been absent from work as a result. The pursuer's relationship with his partner has been affected by stress.

(70) The defender encouraged the pursuer to believe that she would grant him an active role in A's life, in order to obtain his co-operation in artificially creating a child with her.

(71) At that time, and for some time thereafter, she probably intended to carry out her undertaking regarding the pursuer having substantial contact with A.

(72) The defender and C have little sensitivity, regard, or recognition for the position, or the emotions, of the pursuer, as father of the defender's child.

(73) G have been asked to be A's godparents, although there is no intention that A is to be baptised or christened. The defender has appointed them in her Will to look after A in the event of her or C being unable to look after him. The pursuer was not at all involved in the decision.

(74) The defender has failed to inform her employers as to her circumstances, as she fears that she may lose her employment as a principal teacher in a Roman Catholic secondary school in Glasgow. She is worried that her employers would not be sympathetic to her position. She does not see it as any of their business.

(75) The defender, as at the date of proof, had not informed her own parents, with whom she is on good terms, and also visits, that she was ever married or divorced.

(76) The defender and C do not recognise the importance of the pursuer's relationship with A, apart from that of "sperm donor".

(77) The pursuer does not accept that C is a parent of A.

(78) The defender and C have attempted to extinguish any bond which may have been developing between the pursuer and A since A was about 6 weeks old, and reduced his significance to A to that of sperm donor. A bond still exists between the pursuer and A.

(79) The defender and C do not wish the pursuer to be in their house, nor do they wish to be in his company.

(80) As a result of a difficult atmosphere for contact at the defender's house, which became very apparent in the course of proof, the social work department were asked for proposals for supervision of contact at a neutral venue.

(81) In the course of legal submissions, the defender and C suggested a nearby contact centre, with no social work involvement, as a neutral venue where contact could take place, which was available on Saturdays from 11 am until 1 pm.

(82) In terms of rule 33.25 of the Act of Sederunt (Sheriff Court Ordinary Rules) 1993, a request was made to the social work department for a report on the issue of contact supervised by the social work department.

(83) The social work department supervised contact at the defender's home on 22 January 2002. There was further supervision at the Family Mediation Centre, 1 Melrose Street, Glasgow on Thursday, 7 and 14 February 2002 between 3 pm and 5 pm.

(84) The contents of the social work report, after the first supervised contact suggested that the defender and C were refusing to allow contact outwith A's home. A further report stated their position to be that one of them wished to be present when contact was taking place. The defender and C disputed the terms of the reports by the social worker.

(85) As a result, the defender and C were ordained to appear in court on 4 February 2002, when matters were clarified and appropriate dates arranged for contact at the Family Mediation Centre, under supervision of the social work department.

(86) Shortly after the hearing in court, the Family Mediation Centre, despite having agreed to the proposed dates, called to state that the dates were not possible.

(87) The social work department, at the court's request, contacted parties' agents, who agreed dates of 7 and 14 February 2002.

(88) The terms of the reports relating to 22 January, 7 and 14 February 2002 showed a good quality, enjoyable contact between A and the pursuer.

(89) It is in the best interests of said child that the pursuer is involved in important decisions regarding health, development and education in respect of his life.

(90) It is in the best interests of said child that the pursuer maintains contact with him. The Family Mediation Centre, 1 Melrose Street, is open between 11 am and 4 pm on Saturdays and can facilitate parents dropping off children, who are to be picked up by the non-residential parent and thereafter returned by the non-residential parent after contact, to the Centre, to be collected by the residential parent.

(91) Such an arrangement is appropriate for A and the pursuer, who can take A from the Centre for contact elsewhere.

FINDS-IN-FACT-AND-IN-LAW:

(1) The pursuer and said child have family ties and article 8 of the European Convention on Human Rights applies to said relationship.

(2) It is in the best interests of said child that the pursuer is involved in important decisions regarding his health, development, education, his future guidance and direction, and that he be granted parental rights and responsibilities in terms of the Children (Scotland) Act 1995, section 11(2)(b).

(3) It is in the best interests of said child that said child have contact with the pursuer.

(4) There is reasonable cause to believe that compulsory measures of supervision may be necessary in respect of said child, in respect of section 52 and section 53(2)(b) of the Children (Scotland) Act 1995.

FINDS-IN-LAW:

(1) The relationship between the defender and C does not constitute a "family unit" for the purposes of an award of parental rights and responsibilities to C in terms of section 11 of the Children (Scotland) Act 1995.

THEREFORE:

Sustains pleas-in-law 1 and 2 for the pursuer; Repels pleas-in-law 1 and 2 for the defender; Grants parental rights and responsibilities in respect of A, born to the pursuer; Grants contact to the pursuer with said child each Saturday between 11.30 am and 3.30 pm, the defender to take said child to the Family Mediation Centre, 1 Melrose Street, Glasgow, where he will be collected by the pursuer at 11.30 am and returned by the pursuer at 3.30 pm, to be collected by the defender at 3.30 pm, said contact not being restricted to the location of the Family Mediation Centre. Gives, as information, the contents of this judgment, to the Principal Reporter for Glasgow, Merchant Exchange, 10/20 Bell Street, Glasgow, for consideration as to whether compulsory measures of supervision may be necessary in respect of said child in terms of section 52 and section 53(2)(b) of the Children (Scotland) Act 1995. Reserves meantime the question of expenses and Appoints parties to be heard thereon on                                         at                .

NOTE:

In this case, the pursuer was represented by Mr D Kelly, advocate, while the defender was represented by Mrs Scott, advocate. Evidence and submissions occupied 9 days in court. The case was thereafter, continued for the purposes of a report from the Social Work Department regarding contact under supervision of the Social Work Department.

There was extensive canvassing of interesting and very modern concepts and issues of law by both parties. I am grateful to counsel for both parties for a thorough research into the relevant law, cited from European and worldwide cases, in addition to case law from the UK.

Inevitably, credibility and reliability were significant in the case, as was the general approach and behaviour of parties involved. For the reasons, outlined below, I generally preferred the evidence of the pursuer, whom I thought was truthful, to that of the defender and C, who in many respects were not credible.

The test described in Sanderson v McManus, 1997 SC HL 55 was applied ie. whether the granting of parental rights and responsibilities was to the child's benefit, examined from the point of view of the child.

In relation to the facts which I found established, a clear pattern emerged. It was obvious that the defender and C wished for some time to have a child. As a result of an advertisement, C made contact with a male. For about 9 months there were unsuccessful attempts by C to become pregnant, by artificial means. Thereafter, for about 4 months there were unsuccessful attempts by the defender to become pregnant by the same man, by artificial means. Other efforts were made to become pregnant, but no pregnancy ensued.

I accepted the pursuer that he had wished to become a father for many years, but because of his sexual orientation, that was never going to occur in his homosexual relationship with B. Fatherhood seemed a prospect highly unlikely ever to occur for the pursuer. He was straightforward and frank in his evidence. As a result of being approached by E, C's brother, who was in a homosexual relationship himself with D, the pursuer took time to consider whether to agree or not. I accepted that he spoke to his own mother, who gave evidence that she had agreed with him to go ahead, and also to his partner B who warned him of the pitfalls and difficulties which the situation might produce. C recalled that he did not make up his mind there and then, wanting to discuss it with his partner. The advice he received was not unqualified encouragement, but measured consideration. The pursuer gave the impression of being a thoughtful individual, who considered the long-term implications and issues of what he was about to embark upon. I was satisfied that the pursuer did not enter the arrangement lightly. Further, looking to the pursuer's history of employment with social services and his present position, he clearly enjoys working with children and families. He occupies a post of unqualified social work assistant, although on several occasions he is acting social worker, where he is entrusted with sensitive issues and difficult situations which he must cope with, many relating to very young children. In the course of his employment, he has duties involving the supervision of contact with children deemed to be at risk, and their parents.

He certainly did not agree to enter the arrangement either for money or for altruistic reasons. I accepted that he wanted to be a father to the child and was prepared to take his responsibilities.

I also accepted that the defender and C told him that he could have, as he put it, "heaps of contact", not only for himself but also his family and partner. Witness B, spoke to conversations with the defender and C, wherein it was said by either the defender or C that there was "an open door policy" regarding the pursuer's involvement. I accepted that evidence as true. I also accepted as true that the pursuer being in a homosexual relationship himself, was happy enough that the child was to be brought up by the defender and C, who were in a lesbian relationship. He had no objections to that arrangement.

I was in no doubt that substantial contact and involvement with A was promised by the defender and C to the pursuer, to encourage the pursuer to return to the house in order for the defender to become pregnant. At that stage, I accepted that the defender probably intended to fulfil her undertaking regarding substantial contact, although she may not have appreciated fully the implications and practicalities which would ensue. The defender must have known that the pursuer was interested in becoming a father given the nature of his job and his outlook.

Although it appears that such a case has not been reported in legal literature in Scotland before now, it seems that such practices are not unknown in the homosexual community. However, most are kept away from publicity.

After three months the defender became pregnant. The pursuer visited only occasionally in the pregnancy. However, he did attend an ultrasound scan appointment and was present in the sideroom at birth. I believed that he had not been informed of various other ante natal appointments.

The defender and the pursuer visited his mother and family, and the pursuer and defender, and C took him to visit her parents and family. The defender's family had a traditional attitude, but were apparently happy that he was committed to the pending child. During the course of the pregnancy the pursuer asked the defender about an agreement regarding parental rights and responsibilities, but was told that this was not possible before the child was born, this being a novel area of law. His mother and family visited the defender in hospital. Evidence was given by witness H, a teacher friend of the pursuer, that the defender stated she would never deny the pursuer's side of the family access to see A. I accepted that evidence as truthful. She spoke to a visit by the defender, C and A to the pursuer's mother's house, when there was a relaxed and friendly atmosphere.

The pursuer was named as father on the birth certificate and signed as father. He is therefore, liable for the support of the child. The pursuer's name has been given as one middle name of the child, while C's name is the other middle name. He was told that aliment was not needed, and at that time he therefore bought, in lieu, many clothes for the child.

I gained the impression that the pursuer was quite emotionally overwhelmed by his feelings of becoming a father and found it difficult to stay away from his son. The defender and C had utterly no understanding of this. He visited A frequently. As there was obviously no attraction to him in visiting to see the defender or C, it could not even be considered in this case that he had any ulterior motives. When they asked him not to visit so frequently, he did so, although still reasonably frequently. He appeared to be genuinely interested in A.

The defender allowed the pursuer to take A away for contact when A was only a few weeks old. On other occasions she accompanied the pursuer and A. On one occasion he stayed overnight at the house in the same room at A, while the defender and C were next door. They felt that he had no idea how difficult it was to look after A. The defender said this was an attempt to show the pursuer how wrong he was. I felt it was very easy for the defender and C to criticise the pursuer's first attempts at an overnight stay with A, especially given his age and the difficult environment for the pursuer. The defender said she was awake all night listening to the sounds of A, who was not sleeping. The defender frequently sought in evidence to belittle the pursuer's abilities. However, he did seem capable of learning and coping, according to Professor Furnell.

Some visits took place by the pursuer's family. The defender was on maternity leave from school, while C was still working. C gave up her job about the middle to end of October when A was about 5 or 6 weeks old and thereafter, stayed at home to look after A. The defender was absent from work after maternity leave until Easter 2001.

C's employment was not threatened by her relationship with the defender and she could have carried on. However, the decision was taken that the defender should continue in her full-time employment, while C looked after A, as the defender's salary was higher than C's.

I was satisfied with the pursuer's capabilities as a father and thought that he had positive aspects to offer A, who had been born in unusual circumstances. It appeared that the pursuer was perceptive and sensitive as to difficult issues which might be raised for A in his upbringing, and wished the opportunity to discuss and advise him on those issues. I thought it entirely appropriate that he should be involved in important decisions regarding A's life, such as health, development and education.

In the course of preparation for proof, the defender instructed Professor Furnell to prepare a report (production No 6/3). In order to do so he visited parties and also the defender's house, when the pursuer had contact with A. So far as the pursuer's contact with A was concerned, he reported that, although it took time for A to warm to the pursuer, he did so during the contact visit and it appeared that Professor Furnell had been reasonably impressed with his abilities in engaging and playing with A and making a relaxed, happy contact time. There was a video, production No 5/4, viewed in court involving contact between the pursuer and A. In evidence, it appeared that the pursuer did have positive attributes, which he could contribute to A's upbringing, to A's benefit.

The pursuer had wished to aliment A and it was agreed that he would aliment at £55 per two weeks. However, that did not progress because the defender had then said she did not wish aliment. Accordingly, the pursuer opened a bank account and deposited the aliment there. There is also an insurance policy. They met and a pram was purchased.

When A was about 5 or 6 weeks old, the pursuer broached the subject of a section 4 agreement (section 4 of the Children (Scotland) Act 1995), which was met by a refusal to sign, and the allegation that the pursuer was only "a sperm donor", to his upset.

It is interesting to note that these two events (C giving up work and the refusal to sign an agreement) occurred around the same time in October 2000. In the notes on evidence at page 36 lines 1-3 the pursuer said that when C finished work the defender told him that she did not need him now. It appeared that he was dismissed, and an attempt made to eliminate his presence from A's life by having little or no contact with A. The pursuer described a discussion with the defender and C, in which they threatened to take A away to another location, such as Stornoway or the Isle of Skye, to make contact almost impossible, and to sell the story to the highest bidding newspaper, in the event that the defender lost her job.

The defender said in evidence she explained to the pursuer that if she lost her job and faced financial ruin, she would have to sell the house, and would end up living on an island where nobody knew them.

I rejected the description of the pursuer's conduct given by the defender and C as "harassing, pressurising and bullying". I thought that was exaggeration. At worst he became over-emotional and wanted very frequent contact, but so far as the evidence went, on an order having been made by the court, he has obeyed it over many months.

The defender alleged that the pursuer was devious, manipulative and a liar. From the evidence and observations of the various parties involved in this action, including demeanour and attitude, I rejected that assertion and concluded that was indeed a description of the conduct which could appropriately be attributed to the defender and C.

From the time when A was about 5 or 6 weeks old, the defender and C developed a strategy to exclude the pursuer from A's life and minimise contact. Further, they have sought to make contact awkward and anxious for the pursuer. The pursuer was not shrewd enough to cope with the guile and deliberate awkwardness of the defender and C. There were spurious objections made about the pursuer, mainly to the effect that he was unreliable, and always changing arrangements. I had no doubt that the defender and C had impeded quality contact between A and the pursuer. He was well advised to raise the present action quickly in November 2000.

The defender's position appears to be that she is unwilling to allow contact if there is conflict, but I came to the view that she may be content if a difficult atmosphere is perpetuated with contact.

Apart from one contact visit during the course of the action, the pursuer's mother has had no contact with A since Christmas 2000.

I believed the pursuer that unless a court order was made regarding contact, he would not see A again, despite the defender's evidence that she proposed to grant contact for 2 hours per month. From the evidence I thought it was plain that unless parental rights and responsibilities were granted, the pursuer would be entirely excluded from A's life, apart from contact, granted by the court. The defender has had all power and control relating to A, and of her own volition reduced contact to 2 hours per week, in her own home, in difficult circumstances for the pursuer.

At the time of the proof, and after the Social Work Department Reports regarding supervised contact were available, the defender proposed contact of 2 hours per two weeks.

The defender and C see themselves as a "family unit" and wish recognition in law as such. I have dealt with the legal aspects of this below.

The defender and C met about 9 years ago and have lived together since then. C has a brother E, who is a homosexual and who was in a homosexual relationship with an American sailor D, who was about to terminate with the US Navy and therefore go back to the USA. In order to defeat the immigration laws, it was decided that the defender and D would go through a marriage of convenience in Glasgow, which did occur on 28 September 1993. The witnesses were E and C. The defender and D never lived together. When E and D's relationship finished, the defender divorced D on 28 October 1998.

The attitude to these events, exhibited by the defender and C, in cross-examination was most interesting. There was no acknowledgement as to wrongful behaviour, the only regret being that the matter had come to light and was in evidence in court. E's view was that the law was wrong and that they were only trying to make people happy. I had the impression that the defender, C and E believed the ends justified the means.

As I understood matters, clinics in the UK will now carry out AID procedures on females who are in practising homosexual relationships. Such donors are screened regarding any health and social issues. At such clinics the donor is granted anonymity and are therefore, not liable for child support, et cetera.

Over the years the defender and C chose not to do that. Some years ago they advertised in the "Pink Paper", which is a homosexual newspaper containing articles and adverts. Amongst other items, there can be found a column containing adverts placed by homosexuals wishing eg. to find a sperm donor for pregnancy or homosexual males wishing to become fathers. In some, contact (with the child) is dealt with, ranging from "no contact" to "co-parent".

It was said by the defender that she and C wished a known donor for the purposes of identity only, for the child when he/she was growing up. I did not accept their evidence on this point, preferring the pursuer. If the pursuer had been used by the defender and C for the purposes of identity alone, it is highly unlikely that the other events before and after the birth would have taken place, including visits to the wider families. Production No 5/2, the e-mail, does not rest easily with the defender's line that the pursuer was a donor for the purposes of identity alone.

About two years ago E approached the pursuer, who works part-time in Bennett's Club at the club reception. The pursuer has worked there, part-time, for about 13 years. It was said the pursuer had once jokingly remarked to the defender and C to bear him in mind if they were wanting to start a family. The pursuer could not remember such a remark. Although the pursuer was not a friend of the defender and C, he was known to them, as working some evenings at Bennett's and was in sufficiently good terms with C's brother E, who introduced the pursuer to the defender and C for the purposes of discussion regarding AID. It would seem reasonable to assume that something of his personality and character, work details and lifestyle would be known to parties.

The defender was and is under enormous stress in respect of her employment. She is a principal teacher in a Roman Catholic secondary school in Glasgow and is very much afraid that she will lose her job if the Archdiocese gets to know of her personal situation. Her worry may be understandable, as it could be said that the defender knows certain moral standards are required for the holding of such a post, but is living contrary to those known standards. She recalled the Catholic Church's position in respect of the repeal of section 2A of the Local Government Act 1986. That section was repealed by section 34 of the Ethical Standards In Public Life, Etc (Scotland) Act 2000. It must cause tremendous strain to keep secret, such an integral, important and large piece of life.

The recent trend in legal cases regarding personal and sexual relationships between consenting adults appears to be excising any reference to a religious or moral influence previously evident in such situations, matters now being regulated with reference to European Human Rights legislation. It has been said that the Convention On Human Rights exists to protect and human rights and fundamental freedoms of each and every individual.

However, there may be a religious or moral standard to be applied in respect of employment in a Roman Catholic school, as was the belief of the defender. Article 9 of ECHR gives a right to religious freedom, which, of course, includes Christianity.

While it may have been declared that nowadays, a religious or moral element is to be excluded from consideration in sexual relations between consenting adults, it appears to be still the law that children are to be protected. An example is section 52(2)(b) of the Children (Scotland) Act 1995, which relates to a child who is "falling into bad associations or is exposed to moral danger", which is a ground to be considered in respect of whether compulsory measures of supervision are necessary. The Children's Panel are obliged to deal with situations inter alia, relating to section 52(2)(b), and with the numerous grounds of section 52 relating eg. to health and development, and various other situations in which children are placed.

Mrs Scott for the defender strongly argued, as did Mr Kelly for the pursuer, that the courts were not allowed to discriminate against homosexuals as parents, and cited various European and Scottish cases. Portugal, which had taken a traditional view in the case of Salgueiro Da Silva Mouta v Portugal 2001 FAM LR 2 was somewhat castigated for such a stance in modern Europe.

It is difficult to see how the court would be able to discriminate in this case as all involved were practising homosexuals. Reference was made to the case T, Petitioner 1997 SLT 724 and White v White 2001 SC 689.

It was stated in evidence that the defender had required to re-mortgage the house to the extent of £20,000, in order to pay for the defence of this action. Although the pursuer was in receipt of legal aid, the defender was not and she had to defend the action.

The precarious position of employment (albeit due to the defender's chosen lifestyle and non-disclosure of her personal situation to her employers) and the re-mortgaging of the house to the extent of £20,000 are two very material matters which would have a significant impact on the lives of most people.

Whereas before, with the arranged marriage, matters were kept as quite as possible, that has not been the case here since matters have been aired in court. It was said in evidence that the defender's own parents at the date of proof, still knew nothing of the defender's marriage and the subsequent divorce. They were not led in evidence. There has been a history of secretive behaviour, in manipulating the law to their own ends, or the ends of friends, which the defender and C did not particularly regret. I formed the impression that the defender supported by C, was somewhat calculating, manipulative and devious in her own cause.

The defender attacked the pursuer's credibility, criticising him as having told lies about his employment as a social worker, when in fact he is an assistant social worker. However, he does act as an acting social worker on occasions, due to staff shortages. She also said he wanted to be a father as a mask of respectability and that A was an "object" like a fashion accessory for the pursuer. I felt those observations were without foundation in respect of the pursuer.

Both the defender and C were horrified by the Boyz magazine, describing it as male gay pornography. I agreed with that description. No explanation of his possession of such material was given, other than the fact that he had brought it to their flat when giving them his sperm for self-insemination.

The defender's GP gave evidence that the defender suffered stress and as far as she understood from the defender, the stress related to the situation with the pursuer and the outcome of these proceedings. That information all came from the defender. The GP described the defender as being under severe stress, which could lead to a breakdown. It would be best for her if stress was removed. The defender had stated to her that, because of her own condition, the stress and anxiety was transmitting to A who had been somewhat sleepless, et cetera for about three weeks prior to the date of the doctor giving evidence on 11 December 2001. She had not been asked to see A. She had prepared a report which is production No 6/6.

When asked about support for the defender she considered a National Health psychologist, a health visitor and a social worker. Since she felt that the source of stress was specific, she did not think that the NHS psychologist, would be beneficial. She was reluctant to prescribe tranquillisers due to side-effects. If there was to be continuing contact with A and the pursuer, she felt that if she was continuing to be stressed, she would require some support.

It was argued by the defender's counsel that it could not be in A's best interests to enforce contact when such contact was leading stress on the defender which was transmitting to the child and upsetting him. Mrs Scott founded on the evidence of Professor Furnell relating to this aspect of evidence.

I accepted the GP's evidence that the defender was "extremely stressed and weepy" and that she had lost a lot of weight. The GP at p 728 under Notes of Evidence, when asked for her comments regarding the defender finding it stressful if her parents were looking after A, while she was in court, said she thought that would be an abnormal level of stress, if she found that stressful, if they were closely involved and had good relationship.

I did not accept that it was appropriate for the defender to claim that it was the pursuer's contact with A which alone or at least was the major cause for the stress, given the other complicated circumstances of the defender's life.

The atmosphere of contact taking place in the house could not be very pleasant. However, it was the defender, supported by C, who did not wish contact to take place outside the house. She insisted that she (the defender) either be present or nearby. She complained of feeling like a prisoner in her own home.

The defender and C were extremely possessive of the child. It was a little surprising when the defender admitted being uneasy about her parents looking after A while she was giving evidence one day in court.

At p 466 and 467 of the Notes on Evidence, there is a portion of evidence showing that the defender is unhappy and worrying that A is being looked after by her parents while she is giving evidence. She stated that there was no alternative. She was uneasy that he did not know her parents that well and might be a bit strange with them, possibly being a bit confused or a bit upset.

It cannot be appropriate for the court to take the line of least resistance where one parent is intent in causing a great deal of trouble and anxiety which transmits to a child. The court cannot be ruled by the behaviour of one party to the detriment to the other's interest, particularly where the welfare of a child is being considered. The defender's counsel questioned the future prospects of contact and/or parental rights for the pursuer, working well, where there was hostility between the pursuer and defender. That could be said in very many cases in court, where one or both parents are intent in getting exactly what he or she wants, regardless of the effects on others, particularly the child or children. I formed the impression that the pursuer had been prepared to be reasonably flexible in arrangements, but generally that the defender had been deliberately awkward, an attitude encouraged by C. Hopefully, those issues may not require to be addressed later in court, if parties can, for the sake of A, put hostilities aside. Professor Furnell at p 11 of his report states "From a psychological perspective, I can only point out the well established detrimental effect upon children of that child's perception of conflict between his or her parents. In my view, therefore, there is a need for all concerned to reach realistic accommodations, and thereafter adhere to any arrangements made in a responsible and adult fashion primarily for A's benefit".

Further, for the future, there are persons who would be prepared to assist in collecting and returning A to the defender, such as the pursuer's partner B, and also the pursuer's mother.

At the time of writing this judgment, I thought it appropriate that the Family Mediation Centre, 1 Melrose Street, which is very near the defender's home, be used as a collection and returning venue for A when the pursuer is to have contact. They are happy to facilitate this.

Having regard to the contact visits and reports from the Social Work Department, contact, unsupervised is granted to the pursuer with A, on Saturdays between 11.30 am and 3.30 pm, the Family Mediation Centre to be used as a collection and returning point. There is no restriction on the pursuer taking A from the Centre.

Given the complexity of the whole circumstances, and particularly the level of stress on the child's mother, the defender, described by her own GP, I decided to give the Principal Reporter a copy of this judgment to consider whether compulsory measures of supervision may be necessary for A.

C in some parts of her evidence took a rather militant position as to her rights to be in the house, despite the pursuer having contact, by order of the court from the Child Welfare Hearing, with A. At p 641 in the Notes of Evidence she stated that her family felt quite strongly that her rights had been violated. This was despite the fact that the order had been made by the sheriff who had stated that contact had to take place outwith her presence in the house.

Various witnesses, including B and I, found her difficult to get along with. When she wanted people to leave, it was said that she had a way of making it clear that they were no longer welcome to stay. From evidence she could be described as being a dominant nature. She did not give straightforward answers to straightforward questions in cross-examination, which she attempted to side-step. From her demeanour and attitude in evidence, it was apparent that she could be defiant and awkward to deal with. She claimed that she was concerned that if she did not have any rights, she could be ejected or trampled on or overruled by the pursuer.

The defender and C certainly gave the impression of being in a strong relationship with each other, prepared to support each other's point of view, wishes and objectives. The pursuer's fears that the defender would put C's wishes and interests first appeared to be well founded. Initially, as reported by the Social Work Department after the proof, neither wished to cooperate with the court's request that contact take place outwith their house at a neutral venue. The contents of that report were disputed by them. However it had been made very clear in court that consideration was being given to removing the contact from their house to a neutral venue.

Professor Furnell was instructed to prepare a report by the defender and give expert evidence on behalf of the defender. This report, dated 25 September 2001, is production No 6/3. Some of his report proceeded on the basis of information provided by the pursuer, the defender and C. Other parts related to observation. He felt that there was contention between the roles of the pursuer and C, which was a major area of concern.

He was impressed by the care of the defender and C provided for A.

I agreed with Professor Furnell that the pursuer felt C tended to covet A for herself and with his comment that that is a major point in this case.

His reaction to the e-mail, production 5/2, was interesting (p 272 on Notes of Evidence), wondering if the intention is for A to have reasonable contact and relationship with his father. He thought the timetabling was a little slow or restrictive.

He felt the pursuer was perfectly competent in the observed contact. He expressed a cautious view as to contact between the pursuer and A alone. He did agree that this case had an unusual set of circumstances and that he had never been involved in a case where both biological parents were in homosexual relationships.

Despite substantial evidence regarding the pursuer's and defender's intentions prior to entering into the arrangement to create A, Professor Furnell's report proceeds on the basis of "a process of sperm donation". I did not accept that as an accurate description of actual events. Some of his report proceeded on the basis of statements made by the defender and C, which I did not accept in evidence.

It was perhaps unfortunate that a curator was not appointed by the court in the proceedings prior to proof, so that A's interests could be fully represented. As the case progressed it may have been an advantage to have had a curator, and although competent at any stage to appoint a curator, it became rather unsuitable to do so, as it would have been very cumbersome procedurally, to have a curator enter part of the way through proof, without the opportunity to cross-examine the witnesses, particularly Professor Furnell, who had already given evidence.

Both the pursuer's and defender's cases were advanced from the point of view of homosexual parents, without regard for ordinary heterosexual relationships. The potential difficulties which A might meet in growing up were not entirely glossed over but were not brought out for consideration as might have been expected had a curator represented A in court.

The law has obviously developed greatly in the past 20 years in changing attitudes to homosexuality and parenting by homosexuals. Both counsel submitted that this was in response to changing social attitudes and behaviour. Many cases were placed before the court concerning decisions relating to parental rights and adoptions by homosexual parents from many countries, from Europe, England and Scotland. Papers from the World Conference on Children 2001 in Bath, England were lodged with articles relating to the increasing incidence of children born to lesbian parents. One referred to a lesbian baby boom. There appeared to be an international interest by lesbian parents in bringing attention to this developing trend.

Professor Furnell, a well respected and eminent advocate and psychologist, who was led as an expert witness for the defender, gave evidence to the effect that A was well looked after by the defender and C, whom he would look on as his primary carers. He was emotionally attached to both. On his visits to the defender's house, he found a good child friendly atmosphere. A, he said, was well adjusted and a happy child. The pursuer was happy to go along with that evidence.

Professor Furnell gave evidence that research had shown that there was no difference in emotional, social and sexual development in children brought up by a homosexual parent, compared to children brought up in a heterosexual household. He said that was the evidence of the literature which he had read. So far as research into children where both parents were homosexuals, he said that there had been little research as far as he was aware.

I appreciate that the court (T Petitioner) must not substitute its own views for that of an expert. However, there is also to be account taken of the dicta by Lord President Cooper in the case of Davie v The Magistrates of Edinburgh 1953 SC 34 at p 40 relating to expert evidence. It is there said "Founding upon the fact that no counter evidence on the science of explosives and their effects was adduced for the pursuer, the defenders went so far as to maintain that we were bound to accept the conclusions of Mr Teichman. This view I must firmly reject as contrary to the principles in accordance with which expert evidence is admitted. Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgement of the court...their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgement by the application of these criteria to the facts proved in evidence. Scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination or independently appraised, and the parties have invoked the decision of a judicial tribunal and not the oracular pronouncement of an expert". So far as I am aware, that is still the law in relation to expert evidence.

It did seem rather strange, if there was no effect, relative to a child being brought up by practising homosexuals, when it seems taken for granted nowadays that a home in which there is eg domestic violence, abuse, drinking, gambling, child or sexual abuse may have an effect on a child growing up in such an atmosphere, but in the realm of psychosexual development in a homosexual home it has no effect. Professor Furnell said that it was not know whether homosexuality was genetic or caused by environmental factors. Be all that as it may, little research into the situation where both parents are practising homosexuals has been carried out.

Professor Furnell knew of the marriage of convenience but did not attach importance to it.

Mrs Scott for the defender, argued strongly that the court was obliged to accept Professor Furnell's report, which was uncontroverted. Bearing in mind Lord President Cooper's dicta, I accepted much of the report, but not all. Further, in this case, Professor Furnell had proceeded on information given to him by the defender that the pursuer was only a "sperm donor". He did not have the advantage of seeing and hearing both parties giving evidence and in particular being cross-examined thereon. Cross-examination was thorough and very valuable in the assessing of credibility. Given the manipulative and devious attitude of the defender and C, the uncompromising position as to their (defender and C) own "rights" and lifestyle, the dishonest approach to authority in respect of the arranged marriage of the defender and D, the keeping secret of the true facts from the defender's employers and even her own parents, I was not happy that A would be given a balanced emotional bringing up by the defender and C, particularly when he reached an age of asking questions about the facts of life or of his parentage. The defender wished to explain that to A only by herself. There was little recognition as to any difficulties the child might face, when growing up, as a result of his unusual circumstances.

It was said that A would regard the defender and C's wider families as his own family.

Both the defender and C wanted to be known as mummy. From experience of life in the courts of Glasgow, it might be thought to be a little surprising if such a fact, when A went to school in Glasgow, was not referred to in disparaging terms by some of his classmates. Again I appreciated it is not for the court to substitute its own opinion for that of an expert, but from experience of children's cases in this court, it is beyond question that children tease and mock each other for matters a great deal more trivial than having two mummies.

Although the legal literature makes no discrimination against homosexuality, there may be social issues for A, which may or may not cause him problems when growing up, both biological parents being practising homosexuals. Just as some children may, or may not, experience racial problems, albeit racial remarks etc are against the law, A's background may, or may not, give rise to social problems. While the pursuer gave the impression of being alert to certain issues, the defender and C did not appear to be particularly aware of them. Either that, or they chose to ignore those issues.

G gave evidence on behalf of the defender. G is a teacher in the defender's department of the same Roman Catholic school in Glasgow. The defender is the principal teacher of drama while G is a teacher of drama. He stated they shared a car to school every day and therefore he saw A every day. He and his wife, who are expecting their first child in February, had been asked to be "godparents" to A, by the defender and C, which they were happy to do. However, there seemed to be no religious aspect of "godparents" as the Gs do not attend church. The pursuer and defender do not attend church. There had been and was to be no baptism or christening of A, where by they were to become "godparents". It seemed to be only a courtesy title. It was then said in evidence that if the defender and C died, the Gs would look after A, the defender having written that in her will. The pursuer had not been involved in that decision.

It was argued for the defender that the defender and C constituted "a family unit" and, that as such, the court should make an order for parental rights in favour of C. It was submitted that even although there was no specific crave for this the court was entitled to make such an order under Section 11 of the Children (Scotland) Act 1995.

It was said that C felt disadvantaged if anything of a formal nature was required will A was in her care. She felt unable to sign, eg medical forms. However, that is something that single, working mothers have to cope with in the ordinary course of day to day living. This did not appear to be a particularly unusual problem.

In any event, Section 5 of the Children (Scotland) Act 1995 gives certain powers to persons looking after children in respect of medical treatment etc. C has de facto care of A by day, and no doubt would have instructions from the defender to act in A's interests.

The pursuer's counsel argued that such a course would be quite unfair, as there had been no specific notice given that such an order would be sought. Although there was reference to a family unit in pleadings in Answer 6, there was no indication that an order under Section 11 would be sought. The pursuer would be prejudiced, as the case had been prepared on the straightforward basis of the pursuer asking for parental rights and responsibilities and contact.

I had considerable sympathy with the pursuer's counsel's view of fair notice. He may have wished to call other witnesses, or even his own expert to counter such a case and had not had the opportunity to do so.

In any event, this matter seems to be a novel point in Scots law and at the cutting edge of legal concepts. As such it must be deserving of more specific pleading. While it may be arguable that the court might be entitled to make an order under Section 11, I took the view that an unusual order such as parental rights and responsibilities for C would require to be pled in terms.

The evidence regarding parental rights and responsibilities for C was heard subject to competence and relevance. At the conclusion of the proof, the pursuer's counsel maintained his objection in so far as it might go to the awarding of parental rights and responsibilities to C in terms of Section 11 but was content that it should be heard as background. I was prepared to accept that evidence was competent as background information, but not in so far as it asserted a right to an order for parental rights and responsibilities for C.

Evidence regarding all other objections was allowed, there being no argument otherwise.

Esto I am wrong in regard to the evidence relating to parental rights and responsibilities for C, on the evidence which I heard, I came to the conclusion that in this particular case, parental rights and responsibilities should go to the pursuer and not to C.

The defender's counsel argued that the starting point for A should be the family unit of the defender and C. The pursuer's counsel argued that there was an issue as to whether the pursuer had a right to respect for his family life with A in terms of Article 8 of ECHR. The starting point, he said, should be taken as the biological parents, ie the pursuer and defender. Various cases have considered situations of a similar nature.

So far as this case was concerned, it was not a question of onus of proof, it being accepted that there was a sufficiency.

After considering the cases and the circumstances of this case, I came to the conclusion that the pursuer should be granted parental rights and responsibilities, on the basis of A's best interests. In this case, I took as the starting point that the pursuer is the known and chosen biological father. I did not think that he, the pursuer, should be excluded from a family tie with A since (a) there had never been anonymity (eg sperm donation at clinic), (b) nor had any agreement been made to exclude him, and (c) the nature of the actions of parties and families before and after his birth, until there was an attempt to exclude him from A's life about 6 weeks of age. Further, there was the terms of the e-mail of 6 February 2001. All indicated a family tie between the pursuer and A.

For reasons given in this judgment, I thought that the pursuer had much to offer A in terms of the statutory rights and responsibilities.

Having heard the defender and C in evidence, it was clear that the defender would not voluntarily encourage A to have contact with the pursuer. I thought she had been deliberately awkward, unhelpful and obstructive, encouraged in this path by C. I had no confidence that the defender would give the pursuer important information, or share important decisions about A, with the pursuer unless the pursuer was granted parental rights and responsibilities by the court. In the absence of any meaningful contact and relationship between A and the pursuer, A would be exposed to the defender's and C's narrow and somewhat claustrophobic perspective.

Being an unmarried father, the pursuer had no automatic parental rights and responsibilities, and was obliged to go to court to attempt to gain parental rights and responsibilities, if he so wished. It had been held that was not discrimination against an unmarried father in the case of McMichael v UK 1995 20 EHRR 205. An unmarried father is not considered as a "relevant person" by a Children's Hearing and can only therefore be present by invitation, if the Children's Hearing sees fit. The situation is different if an unmarried father has parental rights and responsibilities, thus entitling him to attend the Children's Hearing. The appellant, who was an unmarried father in the case of McMichael did not have parental rights and responsibilities and complained to the European Court in respect of his rights under Article 8 of ECHR. The Commission considered that there was no objective or reasonable justification for a contracting state to exclude the natural father from automatically enjoying full parental rights under domestic law. A procedure exists in Scotland whereby natural fathers may obtain recognition of their parental role and thus obtain parental rights, namely an application for parental rights under Section 3 of the 1986 Act (now the Children (Scotland) Act 1995, Section 11(2)(b)) the principle of proportionality is thereby respected. Reference was also made to the provision of a mechanism for identifying "meritorious" fathers who might be accorded parental rights, thereby protecting the interests of the child and mother.

Again that was confirmed in the case of B v UK 200 1 FCR 289 where "the court considered that the relationship between unmarried fathers and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family-based unit".

C, although living with the defender, was unlikely to be considered a relevant person so far as a Children's Hearing was concerned, unless she gained parental rights and responsibilities.

The pursuer, in absence of the Section 4 agreement and in absence of agreement regarding contact, was therefore obliged, if he wished to pursue matters to take court proceedings.

Mrs Scott argued that the donation of sperm does not of itself give the right to respect for family life and made reference to the case of M v Netherlands 74 DR 120, 8 February 1993, application No 16944/90. That involved the birth of a child to a female with a lesbian partner, made possible by the AID of a male. In that case, which was considered by the Commission, it was held "the situation in which a person donates sperm only to enable a woman to become pregnant through artificial insemination does not of itself give the donor a right to respect for family life with the child". The existence or non-existence of family life will depend on a number of factors, of which cohabitation is only one, and on the circumstances of each particular case. Apart from biological fatherhood, there has to be the existence of additional circumstances.

In M v Netherlands, the father and mother had never co-habited, nor had there been any consideration by the father of contribution, financially or otherwise, to the child's upbringing. There had been visits before and after the birth and baby-sitting on one afternoon per week for about 6 months.

The matter of co-habitation and Article 8 of the ECHR, was considered in the case of Kroon v Netherlands 1994 19 EHRR 263.

Parties had always lived separately, although there were four children born to them. It was said "Although, as a rule, living together may be a requirement for such a relationship, exceptionally, other factors may also serve to demonstrate that the relationship has sufficient constancy to create de facto family ties; such is the case here, as since 1987, four children have been to Mrs Kroon and Mr Zerrouk. Article 8, a right to family life, was held to apply.

Undoubtedly, there are numerous situations, such as Kroon nowadays where the male and female have deliberately chosen not to marry or co-habit, but to have children. This is quite common in present day society.

It would appear therefore that co-habitation by the child's biological parents at the time of the child's conception is not necessarily the most important aspect for consideration.

The terms of Production 5/2, sent by the defender and C to the pursuer on 6 February 2001, sent after a Child Welfare Hearing, are most interesting. It covered proposals for contact during several years of A's childhood, including overnight stays at the pursuer's house.

The second last paragraph seems to envisage future family.

On one reading it might be taken that if the court case (ie the present action) is to be dropped, the new agreement can take place. Further, there appears to be anticipation that the pursuer might like to have more children with them. That being so, there appears to be a continuing intention to use him again to create more family, possibly similar to the case of Kroon.

It also raises the issue as to whether the defender was under such stress from the pursuer at that time, if she was prepared to ask him to father a child again with her.

It may also raise concern as to questions of health, safety and morality as far as A is concerned in that a stranger, about whom little may be known, may be introduced to the house for purposes of insemination. Advertisement is in contrast to a recognised clinic, where donors are screened regarding health and social issues.

C's view regarding the proposal of more children, was that it was "just the intention to reassure him that we weren't going to cut him off for the rest of his life" (p 706 of Notes on Evidence).

In the case of Sanderson v McManus, the defender's counsel drew attention to p 65, with Lord Clyde's observation relating to "absolute commitment to a lasting relationship".

She submitted that in the present case the parties had never even lived together and that was far short of "absolute commitment".

That case, however, related to a quite different situation and although there are general and very important statements of the law, it did not appear to be on all fours with the present, very unusual circumstances, which were deliberately brought about artificially.

The defender's counsel submitted that the court should consider this aspect of the case as the pursuer seeking to form, rather than maintaining a link. There was not, and is not a commitment to family life with the mother. There had never been any form of friendship, romantic or otherwise between pursuer and defender.

The evidence in this case shows that a link was forming between the pursuer and A in the first few weeks of his life, until the defender and C deliberately attempted to freeze him out. Prior to the birth, the pursuer had been introduced to the defender's parents and the defender had been introduced to the pursuer's mother. The partners of the pursuer and defender were introduced to each other. There was no evidence that the defender and C found the pursuer's family in any way objectionable or that they were not suitable as a family. There was the pursuer's attendance at the scan and at the birth by invitation. His name is on the birth certificate, which he has signed as father and he has made financial provision. It is difficult to see what else the pursuer could have done to establish a link with A, which might not have been taken to be overbearing.

The defender and C have adopted an extremely determined, possessive and selfish attitude as to contact by the pursuer for A. I had the impression that they wanted A exclusively for themselves. There was an entirely blinkered attitude to a neutral venue for contact, until the matter of contact under supervision of the Social Work Department, was raised by the court in the course of submissions. The defender usually took the stance that it was against A's best interests.

It was only on the last short report on contact to the court, that there was mention that A might be abducted and not returned by the pursuer.

At least there was co-operation after the appearance in court on 4 February 2001 when it was discovered that the Mediation Centre could not accommodate parties on the dates set in court. Parties and agents managed to find alternative dates.

In all the circumstances I came to the conclusion that the pursuer did have a right to respect for his private and family life in terms of Article 8(1) ECHR.

There is a question as to whether a same sex relationship constitutes a family unit, for the purposes of the Children (Scotland) Act 1995. The defender's counsel made reference to T, Petitioner and the case of In re W (a minor) 1998 Family 58. So far as the Rent Acts were concerned, homosexual relationships were capable of constituting a family unit.

In a case heard in the House of Lords, Fitzpatrick v Stirling Housing Association Limited 2001 1 AC 27, Lord Clyde's judgment analyses the meaning of family and traces developments over the years in changing social conditions and attitudes. As I understand it, Lord Clyde agreed with the decision in In re W (a minor) wherein it was said "The family in question comprises two women living together in a lesbian relationship". He had no doubt that for the purposes of the Rent Acts, a homosexual co-habiting couple could constitute a family.

Consideration was also given to the terms of Article 12 of ECHR, the right to marry and found a family, and Article 8 of ECHR, the right to respect for private and family life. At p 53 it is stated "As was recognised by the European Court of Justice in Grant v South West Trains Limited (case C-249/96) 1998 ICR 449, 478, para 35;

Thus the European Court of Human Rights has in Rees v United Kingdom 1987 9 EHRR 562 and Cossey v United Kingdom 1991 13 EHRR 622 confined the application of Article 12 of the European Convention on Human Rights to the traditional marriage between persons of opposite biological sex. Article 12 refers to the right "to marry and to found a family" and in that context it is easy to understand that the word "family" may be restricted in its scope. Article 8 provides the right "to respect for his private and family life". In this context the Commission has held that a stable homosexual relationship between two men does not fall within the scope of the right to respect for family life, but that such a relationship may be a matter affecting private life; S v United Kingdom 1986 47D & R 274. Some protection for such a relationship is thus recognised in the Human Rights jurisprudence. At p 54C to D he states "That the relationship in the present case may not as the law currently stands constitute "family life" for the purposes of Article 8 of the Convention and does not require a restrictive meaning to be given to the reference to a tenant's family in the legislation before us".

Given the terms of Article 12 and Article 8 of ECHR, and the above commentary, I did not think that C fell within the scope of "family" which was envisaged in making an order in terms of Section 11 of the Children (Scotland) Act 1995, for parental rights. That seemed to be an extension of the rights stated in ECHR.

Esto I am wrong in law and that the defender and C do constitute a "family unit", I was not satisfied in any event, that it was appropriate to grant an order to C in terms of Section 11 for the various reasons outlined previously.

So far as I am aware, no such orders have ever been made in Scotland. While it may have been held that a co-habiting homosexual couple may constitute a "family unit" for a variety of purposes, a homosexual couple in Scotland cannot marry. Therefore it is very difficult to see how such a couple could be accorded rights under Article 12, the right to marry and found a family. In the ordinary course of matters in a homosexual relationship, obviously there would be no offspring.

Adoption is not, of course entirely analogous, but it may be helpful to bear in mind as background. The defender and C, in fact, did not enquire about adoption. The adoption cases refer to adoption by a single male or female co-habiting in a homosexual relationship with a partner. A rigorous and lengthy process of assessment for adoption of a child is required, by the local authority, before a recommendation would be made for adoption. There are various procedures whereby reports are produced by the Social Work Department for consideration by the adoption panel of the local authority, to determine whether a person is suitable as an adoptive parent. In the cases of adoption by a homosexual applicant, there does not appear to have been any application made by that person's partner to be an adoptive parent, presumably for the reason that the person would have to satisfy the standards required by the local authority. Without such assessment and ratification by the adoption panel, the partner would not be in a position to apply to the court to be an adoptive parent. In this case, on a purely factual basis, I took the view that the pursuer should be granted parental rights and responsibilities, and not the partner of the defender.

However, it may be a matter of public policy to be considered whether the partner of a homosexual biological mother or father, in such circumstances, can properly be considered for parental rights in terms of Section 11. If so, perhaps that is a matter for Parliament after public debate on the issue.

On 26 September 2001, an order in terms of Section 46 of the Children and Young Persons (Scotland) Act 1937 was pronounced regarding reporting.

B v UK 2000 1 FCR 289

In re C (a minor) 1994 Family Law 468

Eisholz v Germany 2002 3 FamCtRep 385

Fitzpatrick v Stirling Housing Association Ltd 2001 1AC 27

G v F 1998 2 FLR 799

In re H (a minor) 1993 Family Law 205

Harris v Martin 1995 SCLR 580

Johansen v Norway 1996 23 EHRR 33

Keegan v Ireland 1994 18 EHRR 342

Kroon v Netherlands 1994 19 EHRR 263

M v Netherlands 74 DR 120, 8 February 1993, Application 16944/90

Michael v UK 1995 20 EHRR 205

Osborne v Matthen 1998 SC 682

Perendes v Simm 1998 SLT 1382

Salgueiro Da Silva Mouta v Portugal 2001 Family LR 2

Sanderson v McManus 1997 SC HL 55

Soderbach v Sweden 1998 29 EHRR 95

T, Petitioner 1997 SLT 724

Thomas S v Robin Y 1994 NY 56018 618 NYS 2nd 356

Whyte v Whyte 2001 SC 689

X, Y & Z v UK 1997 24 EHRR 143

Human Rights Act 1998

The European Convention on Human Rights

United Nations Convention on the Rights of the Child

Children (Scotland) Act 1995

Overseas Articles

Canada "Protecting a Child's Relationship with all her Mommies"

2001 World Congress & Family Rights