This month is LGBT+ history month. In this context and considering the lived experience of some in the LGBT+ community, I now reflect upon the evolving approach of the family courts in Scotland to the sexual orientation of parents.
It is fair to say that the courts have, at least in the past exhibited a negative approach to the influence of LGBT+ parents.
Re D (An Infant) (Parent's consent)
In the English case Re D (An Infant) (Parent's consent) [1977] A.C. 602 concerning the reasonableness of a "confirmed homosexual" male parent withholding consent to his ex-wife's new husband adopting his son, the comments in the House of Lords are demonstrative of the prevailing attitude of the justiciary to homosexuality at the time of the proceedings. The House of Lords confirmed the decision of the judge at first instance that the father's influence was "not likely to be other than harmful" and that his withholding of consent to adoption was unreasonable. The language used in the case is archaic by modern standards. The House of Lords appear to approve the comments that a "reasonable father would think that the danger of his son coming into contact with practicing homosexuals like his father, and being eventually introduced to their practices, to be something which should be avoided at all costs, even at the cost of losing all contact with his son forever."
Comments from judges at various stages of proceedings include a carefulness on the part of the court not to "underestimate the dangers and difficulties of the father's homosexual way of life" and a view that "men's homosexual practices, though no longer illegal, are still commonly regarded as abnormal, if not unnatural and immoral." There is also mention of the "risk of children, at critical ages, being exposed or introduced to ways of life which…may lead to severance from normal society to psychological stresses and unhappiness and possibly even physical experiences which may scar them for life." That the courts viewed homosexuality as a perversion from which children ought to be protected is difficult to refute. The palpable misunderstanding of anything that did not conform to heteronormal societal expectations and arguable prejudice influenced subsequent judicial decision across the United Kingdom, including in the Scottish courts, for many years.
Early v Early
In the Scottish case of Early v Early 1990 S.L.T. 223, one of three reasons relied upon by the court to justify a male child's father having custody of him was based on the mother's lesbian relationship, the judge taking the view that the father's 'claim' to have custody was strengthened when "the positions in the rival households were contrasted." The judge relied on the evidence of a child psychiatrist, Dr Lindsay, who opined that if the child remained with his mother in the future he would have to face "unusual difficulties."
X v Y
The Scottish case of X v Y 2002 S.L.T. (Sh Ct) 161 concerned a gay man seeking parental rights and responsibilities in respect of a child he fathered to a lesbian mother, who was raising the child with her female partner. Professor Furnell, described by the sheriff as a well-respected and eminent advocate and psychologist, provided evidence to the court 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.
The sheriff questioned this, stating that "it seemed rather strange, if there was no effect relative to a child being brought up by practicing homosexuals when it seems to be taken for granted nowadays that a home in which there is e.g. 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." The analogies used by the sheriff are, on one view, rather extreme by modern understanding of the multiplicity of family units. The sheriff even appeared to stray into gratuitous comments about the choice of the child's mother and her partner for the child to call them both mummy, opining that "it is beyond question that children tease and mock each other for matters a great deal more trivial than having two mummies."
Salgueiro da Silva Mouta v Portugal
The tide in Scotland appeared to change with the coming into force of the Human Rights Act 1998 and binding cases from the European Court of Human Rights which confirmed that discrimination based on sexual orientation was intolerable. In the case of Salgueiro da Silva Mouta v Portugal (2001) 31 E.H.R.R. 47 the European Court of Human Rights confirmed that a residence dispute could not be decided on the basis of one of the parties being homosexual.
Domestic law
Domestic law began to encompass the concept of moral neutrality of sexual orientation with the introduction of civil partnerships in 2004, with the legal change to allow same sex couples to adopt in 2007, with legislative reform in 2008 to allow the same sex partner of a gestational mother of a child conceived through assisted reproduction to be added to the child's birth certificate as the other parent, and with the introduction of same sex marriage in 2013. So too has the approach of the courts changed insofar as a parent's sexual orientation is, on its own, no longer relevant to the child's best interests.
I am pleased to say that as an accredited family and child law specialist and curator ad litem appointed by courts across the North East in adoption cases, I have encountered many situations where children have been placed with same sex couples. These couples have been able to secure an order for residence or an adoption order in respect of a child, the court having accepted in each case that the parties' sexual orientation has no bearing on their ability to provide loving homes and a stable base from which the child can thrive.
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