THE legal wrangle over an unborn baby comes back to court today following drama and confusion yesterday when it was thought an abortion had already taken place.

Three appeal court judges will be asked to decide whether Mr James Kelly, of Fraser Avenue, Inverkeithing, Fife, can stop his estranged wife having an abortion.

The judges were at first told yesterday that Mrs Lynn Kelly might be having her pregnancy terminated while the court was sitting.

It later emerged that al-though Mrs Kelly had gone to England to have an abortion, the operation did not go ahead because doctors were concerned about the legal situation.

Meantime, the judges had pronounced an order effectively reinstating the ban on the operation taking place, in the hope that it was not an entirely academic exercise.

On Scottish Television's Scotland Today, Mr Kelly said last night: ''I hope my wife has got people to support her and I hope she is not suffering herself through this. I hope she can think about things and hopefully change her own mind without somebody else doing it for her. As it stands nothing would change. I am still here to support a child.''

The judges' decision produced opposed views from campaigners on the issue.

The National Abortion Campaign responded with ''outrage'', calling it ''an insult to all women''.

Campaign co-ordinator Carol Kearney said: ''Women make complex and difficult decisions when considering abortion. This court ruling demanding that Lynn Kelly rethinks her position on a decision she has clearly already made is an insult to her and all women about their capacity to make competent decisions.''

However, Ms Doreen McLellan, of the Scottish Pro-Life Alliance, said: ''We are pleased that the child is being considered, and hope that this will continue.''

At the Court of Session on May 15, Lord Eassie pronounced an interim interdict banning Mrs Kelly, who lives in Edinburgh, from instructing, consenting to or submitting to a termination of her pregnancy. The order also banned Edinburgh Royal Infirmary from carrying out the operation.

It was the first time a judge in Scotland had made such a decision. The orders were granted in favour of Mr Kelly,

who separated from his wife two weeks ago. Mrs Kelly is believed to be about 10 weeks pregnant.

Lord Eassie continued the case for a full hearing at which both sides were legally represented and decided to exclude the media because of the delicate and confidential nature of the proceedings.

On Wednesday, he issued in public his decision to recall his original order. He ruled that a father had no legal right to bring such a case to court and that where two doctors had sanctioned a termination in good faith on medical grounds under the 1967 Abortion Act it was not for the courts to substitute their judgment for that of the medical profession.

Mr Kelly lodged an immediate appeal. Yesterday his counsel, Mr Colin Sutherland QC, asked Lord Cullen, the Lord Justice Clerk, sitting with Lords Sutherland and Wylie, to suspend the operation of Lord Eassie's decision to recall the interdict pending a full appeal hearing.

Mr Sutherland said there was considerable doubt over whether the lodging of an appeal automatically suspended the effect of Lord Eassie's decision and left the original interdict in force. All he was seeking to do was ensure that the original court order banning the termination remained in force until an appeal could be heard and disposed of.

Mrs Anne Smith QC, counsel for Mrs Kelly, then caused consternation by saying: ''I should advise the court that those instructing me learned last night from her father that a termination operation was planned for this morning.

''That operation will either have taken place or be in the course of taking place. It is not known where it is being carried out.

''Those instructing me have only a mobile contact telephone number. They will obviously in the course of the day make contact with Mrs Kelly's mother to find out if the operation has been completed.

''In these circumstances, it is very likely that this reclaiming (appeal) motion will be of academic interest only.''

Mr Sutherland suggested the case should be called again today to discover whether the termination had taken place.

Lord Cullen said they were not satisfied that an order suspending Lord Eassie's decision to recall the interim interdict would not be of practical effect. They had decided to pronounce such an order pending a hearing and disposal of an appeal.

That hearing would take place today provided it still served any practical purpose.