Mother of baby loses appeal against sentence after lying to child’s father about abortion so gay friend could obtain parental rights

The appellants claimed that their sentence of three years’ imprisonment was “excessive”, but the Criminal Appeal Court refused the appeal.

Lady Dorrian and Lord Bracadale heard that the appellants VG and CY were convicted after trial of forming a fraudulent scheme to have Mr Y obtain parental responsibilities and rights as the father of baby B, born 15 February 2011, of whom Ms G was the mother.

The circumstances as they emerged in the evidence were that in the course of 2010 Ms G and Mr N entered into a sexual relationship as result of which baby B was conceived, but the relationship came to an end during the pregnancy and Ms G advised Mr N that she intended to have a termination.

However, together with her close friend Mr Y, who was homosexual and wished to bring up a child, a plan was hatched whereby Ms G would pretend to have had an abortion but would not in fact do so.

The appellants created a fictional individual called Claire Green, a lesbian lawyer from Edinburgh, who was to act as surrogate mother for Mr Y, and they even went as far as to create a Facebook page for Ms Green and identify the method to be used for insemination at home.

The appellants told Mr N and a number of friends about the termination and the arrangement with Ms Green.

Following the birth of the baby, both appellants attended at the registry office where they signed the Register of Births registering Ms G as mother and Mr Y as father.

But in the course of February 2011 Mr N became aware that Mr Y had been seen with a baby girl and he also saw a picture of baby B on Ms G’s Facebook page and thought that the baby resembled himself.

Being suspicious that the baby might in fact be his own daughter, he challenged Ms G about the child, but she stuck to the story that child was the baby conceived by Mr Y and the surrogate mother Claire Green.

Things moved on, and in June 2011, the social work department of the local authority discovered that Ms G had indeed given birth to a child and social workers advised Mr N.

Mr N then pursued a civil case to establish the paternity of the child, but Mr Y consistently refused for more than two and a half years to cooperate with DNA testing.

It was only in the summer of 2013, as a result of a court order, that DNA samples were obtained from the appellants, which proved that Mr N was the baby’s biological father.

The charge narrated that in furtherance of the scheme the appellants pretended to Mr N, the true father of baby B, and others, that Ms G had terminated the pregnancy of baby B.

In his report the sheriff noted what he described as the “necessary artful and persistent deceit” required in the commission of the offence.

He considered it to be a callous and selfish scheme designed to provide Mr Y with a child, regardless of the cost to, or impact on, others.

No consideration had been given to the potential impact on the child and both appellants had been “wickedly indifferent” to the consequences of their actions.

Even when civil proceedings had been raised, they determined to continue their deceit and obstruct the investigations that eventually exposed it.

The sheriff was satisfied that a custodial sentence was the only appropriate disposal, and sentenced the pair to each of the appellants to imprisonment for three years, but they were granted leave to appeal.

On behalf of the appellants, it was submitted that if a sentence of imprisonment was appropriate, the length of the sentence was excessive and “unnecessarily severe”.

However, the judges refused the appeal after noting that the offence comprised a “carefully planned scheme which involved a web of deceit and the telling of many lies”, not only to the father of the baby, but also to acquaintances of the appellants as well as the authorities.

Delivering the opinion of the court, Lord Bracadale said: “The deceit was sustained over a period of years and it was only in the face of court orders that Mr Y agreed to provide a DNA sample. The impact of the offence on Mr N and the potential impact on baby B were significant.

“In our view the sheriff was entitled to characterise the offence in the way that he did and to conclude that a sentence of imprisonment in respect of both appellants was the only appropriate disposal. He clearly carefully addressed his mind to the appropriate length of the sentence.

“He recognised that there were no cases in point. While he found some ‘parallels’ in the child abduction cases, he recognised that they were of limited assistance and it is clear that he considered this unusual case on its own merits.

“We consider that having regard to the callous, complex and sustained nature of the fraudulent scheme of which the appellants were convicted the sentence selected by the sheriff was appropriate and cannot be said to be excessive.”