THE parents of a 12-year-old boy from West Lothian are to mount a legal challenge against the special status of Catholic schools, claiming the legislation breaches the European Convention on Human Rights.

Nathan Mackay, a non-Catholic, was last year denied a place at St Margaret's Academy in Livingston - some five minutes' walk from his home - because it gives priority to children who are baptised Catholics. He is currently number 37 on its waiting list.

If successful, the move would strike at the very foundation of the Scottish education system. Since the Education (Scotland) Act 1918 was passed, denominational schools have been accorded legal rights.

Nathan's father, Iain Mackay, a business analyst with Scottish Widows, has taken the case to Cameron Fyfe, a Glasgow solicitor, in a bid to have the council's decision overturned. Mr Mackay is arguing that his son has been discriminated against because he is not a baptised Catholic.

Mr Fyfe confirmed yesterday that he would be seeking judicial review in Nathan's name of the council's decision, on the basis that the current legislation upon which West Lothian Council has based its rules for offering places in its denominational and non-denominational schools, is incompatible with the European convention, now enacted in UK legislation through the Human Rights Act.

Mr Fyfe said last night: ''Protocol 1, Article 2 states that no person shall be denied the right to education and Article 14 states that the enjoyment of rights secured by the convention shall be secured without discrimination on any ground such as religion.

''Taking these two together, we would be saying that the current legislation is incompatible with the Human Rights Act, which clearly strikes at discrimination.''

Mr Fyfe added that his client was simply seeking the education most appropriate for him and, if the only reason that could not be given to him was on religious grounds, then this was discriminatory.

He said he had already received preliminary advice from counsel which he found encouraging. ''If we succeed, it would mean that schools in Scotland cannot discriminate in favour of any religion,'' he added.

There is no suggestion by either Mr Fyfe or the Mackay family that the council broke its own rules in denying a place to Nathan. Their contention is that the basis of the law which allows a local authority with a denominational school to offer priority to Catholic pupils is discriminatory.

A council spokesman said: ''Nathan's parents made a placing request for St Margaret's Academy that was considered in line with the procedures that we have for all placing requests in West Lothian.

''Having looked at that placing request, the decision was made that he did not meet the criteria for entry because he had not attended an associated primary school and that was the main criterion. There are only two Catholic secondary schools in West Lothian, so every pupil

within the St Margaret's Academy catchment - an area covering half of West Lothian - is within the catchment.''

Priority is given to special educational needs pupils, Catholic pupils and pupils who attended associated Catholic primary schools.

The roll of St Margaret's Academy is 999, the intake for 2001-2002 is 180 and the applications for that year come to 237. Nathan is currently number 37 on the waiting list.

Mr Mackay said he wanted Nathan to go to St Margaret's because it was the authority's ''showcase'' school in terms of buildings and provision, it was very close to their home in Livingston village, and he liked the school's reputation for strong discipline and insistence on school uniform.

He said: ''What has transpired is that all the children in the first year are either baptised Catholics or came from Catholic primary schools.

''When we went through the charade of an appeals hearing, we were asked the question whether Nathan was a baptised Catholic. They said that had absolutely no bearing, but it obviously has.''

He added that he was told that his appeal had been rejected because taking another pupil into the school would have meant taking on extra staff, but a Catholic child who later moved into the area was given a place.

The council said that another child had moved away from the area and that the new arrival was given priority because she was Catholic.

Professor Christopher Gane, professor of Scots law at Aberdeen University and an expert in the application of the European convention, said that in his opinion, the human rights ruling did not forbid a local authority from concentrating Catholic education in any given school.

As long as it pursued a policy of concentrating Catholic education in one school, then a local authority would have to give priority at that school to Catholic parents who wished their children to have a Catholic education, he added.

John Oates, national field officer with the Catholic Education Commission, said: ''The European Convention on Human Rights gives parents the right to have their children educated according to their religious or philosophical beliefs.

''Catholic schools were built essentially for Catholic people - that is their raison d'etre. There are non-Catholic children in Catholic schools, that is correct, but the fundamental raison d'etre of Catholic schools is to provide for the needs of Catholic parents and Catholic children.''

Mr Fyfe said, however, that his client's contention was that Catholic education, or other forms of religious education, could be provided in all schools but that a Catholic school should not discriminate against non-Catholics in the provision of places.