The court makes decisions about residence (previously called custody) by considering what is in the child's best interests. A number of factors, referred to as the welfare checklist (in section 1 of the Children Act 1989) are looked at and weighed up to decide what is in the child's welfare. Parents coming out of heterosexual relationships and forming gay and lesbian relationships face particular anxieties about how their sexuality will affect a court's decision if there is a dispute about who will look after the children.
The court's attitude has changed a lot over the last few years and there is a much greater acceptance of lesbian and gay parenting.
The Human Rights Act 1998 and Scotland Act 1998 bring the European Convention on Human Rights into UK law and enshrine the "right to respect for [a person's] private and family life" which can strengthen the position of lesbians, gay men and bisexuals in relation to family law. In the 1999 case of Salgueiro Da Silva Mouta v. Portugal the European Court of Human Rights found that the Portuguese Court's decisions to deny a gay father access and custody for his daughter on the basis of his sexuality violated his rights under article 8 (right to respect for his family life) and article 14 (prohibition on discrimination) of the Convention.