Father denied access to his daughter argues Scots law 'contravenes' his human rights

A FATHER denied access to the 12-year-old daughter he has never met has challenged the integrity of the Family Law (Scotland) Act, after he claimed the Scottish Parliament had been unable to demonstrate the legislation complied with the European Convention on Human Rights (ECHR).

Brian McKerrow of Larkhall has set up an e-petition seeking support in his fight to prove the Act is unfair and discriminates against unmarried fathers, despite claims made by lawmakers at the time of its introduction that it was a step forward in the rights of men.

Mr McKerrow, 39, believes the Act, passed in December 2005, is not compliant with Scots law and contravenes the human rights of unmarried fathers towards their children. Then Presiding Officer George Reid said the legislation was competent, but Mr McKerrow claimed the Scottish Government has refused to release supporting evidence that the Act is compliant with the ECHR, the Children (Scotland) Act 1995 or Scots law.

Summaries of the legislation argue it does provide rights and responsibilities to unmarried fathers who can apply to court, in agreement with the child's mother. But Mr McKerrow has been denied access, he says, because of the mother's "intransigence" and the Act itself.

He argued that articles 3 (torture), 4 (servitude), 8 (privacy), 9 (conscience and religion) and 14 (discrimination) of the ECHR are breached by the Family Law (Scotland) Act.

Speaking of the daughter he has never met, Mr McKerrow said it is unlikely she will ever know him. "Because my daughter has no contact with me whatsoever, I don't have confidence that I will get to meet her," he said. "I'm very much affected by this. The state is stopping me from seeing my daughter. The mother has decided to not give us rights as parents. We're being discriminated against on the basis of gender. Children conceived out of wedlock have less rights than those conceived in wedlock."

He continued: "I'm not going to get awarded contact so I started on the road to try to understand the banality of the legislation. The Family Law Act has never been tested in the ECHR. The Act uses gender to remove your inalienable rights as a human being. In its operation, the Act is entirely unequal."

But Cath Karlin, who practices family law at HBJ Gateley Wareing, said the Act allows someone to go to court to get parental rights conferred on them. "Your right to a family life has not been excluded and there is a right, through the courts, and nine times out of ten the court will confer those rights," she said. "I don't think the Act has improved or changed anything. Where there is a disagreement, people have to go to court and courts have to work out what's in the best interest of the child.

"Even if you have parental rights, if one party is not giving you access, your only recourse is to go to court.The fact you have parental rights and responsibilities doesn't mean much if parties don't agree."

Paul Marshall, a member of the public law team at Brodies, said it was up to the individual to prove they were a victim of the legislation. "You can't just argue legislation is not convenion compliant. If you argue that it can be struck down," he said.

A Scottish Government spokesman said: "Ministers stated at the time that the Family Law (Scotland) Bill was within legislative competence. The Presiding Officer stated the same. There was considerable consultation on what became the Family Law (Scotland) Act before it was enacted."