Andrew McClintock, 63, has served 18 years on the South Yorkshire Bench, and 15 years on the family panel. When the Civil Partnerships Act came into force, Mr McClintock advised the court that as a serving magistrate he too was under an obligation to obey the law, including the Civil Partnerships Act, and therefore, he requested court managers allow him leave of cases where he would specifically be asked to act against his conscience, or against his judgement as to what was "in the best interests of the child(ren)". He said he would be happy for other magistrates to sit in such cases and order as they saw fit.
Mr McClintock was told he must preside over cases that involved prospective gay parents. In his tribunal case, Mr McClintock will seek to persuade the court that he was discriminated against, and that the court should have allowed his request under Regulation 10 of the Employment Equality (Religion or Belief) Regulations 2003.
Mr McClintock said: "In the 15 years I have sat with colleagues on the family bench, I can say with total conviction that I have always acted in the very best interests of every child over whom I have been asked to make an order.
"The Civil Partnerships Act was lawfully brought in by this Government and as a magistrate, I must abide by the law. However, I have a conflict of two laws: the law relating to gay rights, and legal rights under employment law for my religious convictions to be protected.
"I believe any magistrate who has a conflict of interest, or a conflict of conviction, best serves justice by declaring it, not sitting on that case, and allowing another magistrate to perform the duties.
"I also believe that if any magistrate sitting on the family panel, having to make a decision solely in the best interests of a child has any doubts about placing a child into the care of any parents, then he or she must act according to his or her conscience.
"In my case I seek to explain that my views about same-sex parenting are not in any way anti-gay, but pro-child. They apply to my deeply held view that, based on all the evidence available to me as a magistrate, there is substantial ground to say the best place for a child to be raised is in a dual-sex relationship, and not a same-sex relationship.
"Acting in the best interest of the child I believe I therefore have no choice than not to make an order to place a child in the care of a same-sex couple.
"I wish to make it clear that I am not campaigning to have the Civil Partnerships Act repealed, or gay rights curtailed. My case is to determine whether a magistrate, with 18 years experience serving the people of Yorkshire, should be allowed the right to be released from occasional cases where he believes to continue to sit would infringe his own conscience, and not help justice to be done.
"That to me, and I believe to most sensible people, would seem a reasonable request to make, and a reasonable and just decision for court managers to have taken last year."
The tribunal is expected to end today.
