Outer House grants adoption order for separated couple after finding co-residence not necessary for family life

About this case:

• Citation:
  [2025] CSOH 87
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Tait

Petitioners AB and CD separated in July 2023, two years after the grant of a permanence order with authority to adopt was made in respect of the child, now aged 8. They sought orders under the Adoption and Children (Scotland) Act 2007, with the key issue for determination being whether they could be considered a “relevant” couple under section 29 of the Act.

The petition was considered by Lady Tait in the Outer House of the Court of Session, with Scott KC appearing for the petitioners.

Liberal purposive approach

The child the petitioners sought to adopt had lived with them since 16 August 2020 alongside their older adopted son. Since the petitioners’ separation both children had a home with each of the petitioners, and they regarded each other as siblings. Both the section 17 and report and the report of the curator ad litem were positive and supportive of the orders sought.

The petitioners were described as wholly committed to the child and able to work together in her interests. They were in frequent communication about her care and welfare, and the second petitioner’s new partner was supportive of the child. The child herself wished to be adopted by the petitioners and regarded both of them as her parents.

In terms of section 29(3)(d) of the 2007 Act, a “relevant” couple is a couple whose members are “persons who are living together as if civil partners in an enduring family relationship”. It was submitted that while the petitioners have separated and both have other partners, they have created a cohesive, integrated family life together with the child and their adopted son such that they can be said to be a relevant couple.

Senior counsel for the petitioners relied on the case of AB Petitioners (2023), in which Lady Carmichael took a liberal and purposive approach to what constituted an “enduring family relationship” in respect of a similar provision in the Human Fertilisation and Embryology Act 2008. What was required was an unambiguous intention to create and maintain family life and a factual matrix consistent with that intention.

Support was also drawn from A v B and others (2021), an English case in which an integrated family relationship was held to exist notwithstanding the separation of a couple who had each adopted a child conceived by the other partner by sperm donor. In the present petition, it was submitted that applying the case law there was strong support for finding the petitioners were a relevant couple.

Stable family unit

In her decision, Lady Tait said of the petitioners’ present circumstances: “The petitioners have demonstrated themselves to be adept at co-parenting over the 2-year period since their separation. They both attend the children’s activities together, effectively as a family unit. They are both committed to the child and achieving what is best for her. The arrangement is working and meeting all of the child’s needs. The child is already part of the family unit; views herself as such; and is viewed by others as such.”

She continued: “I adopt the same liberal and purposive approach as in AB Petitioners and in A v B and others. If an adoption order were not made, the child would not have the legal reality which matches her day to day social and emotional reality. A broad and flexible construction should be adopted to secure the effective protection of the Article 8 ECHR rights.”

Explaining her reasoning further, Lady Tait said: “What is required is an unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention which is a question of fact and degree. It is not necessary for the ‘partners’ to be sharing the same property in order to be living in a family relationship. The petitioners created and have been living in a family unit with the child and their adopted son since August 2020 albeit living across two households since July 2023.”

She concluded: “The purpose of the defined relationships within section 29(3) is to ensure that a child is adopted into a stable family unit. In the present circumstances, there is no reason why such a stable family unit should be viewed as insufficient to allow the child to gain legal security. It would be neither sensible nor satisfactory for the child to be placed in a different position to the petitioners’ adopted son when both children have been subject to an identical care regime within the same family unit since August 2020, both before and after the petitioners’ separation.”

The court therefore made the adoption order sought, having been satisfied that it would safeguard and promote the child’s welfare.