A Scottish court has ruled a separated couple who had previously cohabited could adopt the sibling of their adopted child in a ruling which could encourage English courts to adopt a flexible and more pragmatic approach to adoption
In a first of its kind ruling, the Court of Session Opinion ruled in favour of the couple who had previously cohabited and were in the process of separating during their efforts to adopt the younger sibling of their already adopted son. Despite the separation they wished to continue with adoption proceedings.
Under current adoption rules people looking to adopt together must be a relevant couple – which is defined as either being married or in a civil partnership, or living together as if civil partners or spouses in an enduring family relationship. The couple were left with the choice of having decide which of them would progress with the application as a single adopter.
In coming to it’s decision the Court of Session took a ‘broad and flexible’ construction to the wording of the legislation to ensure the value of a stable family unit in the child’s development could be promoted. The court determined it was not necessary for partners to be sharing the same property in order to be living in a family relationship.
Lady Tait found that the adults, though neither married nor in a civil partnership, could still be treated as a family unit across two households and the child, who had been with the couple since 2020, was thriving, and both adults had made a lifelong commitment to her and her sibling.
Roger Mackenzie, Partner at Scottish legal firm Wright, Johnston & Mackenzie (WJM) who acted on behalf of the clients said:
“This decision reflects societal shifts and the need for family law to adapt as the dynamics of families and relationships continues to evolve.
“We welcome this decision which reiterates the paramount consideration is the welfare of the child and in this case the benefit of having two parents with equal legal status. You can still maintain a stable and enduring relationship as parents without living together.
“We were able to demonstrate the adopters had created a cohesive, integrated family life , and despite no longer living together as a couple, should still be considered a relevant couple who worked positively together to care for the child.”
The court’s Opinion highlighted the purpose of the wording of the legislation was to ensure a child is adopted into a stable family unit. The adopters demonstrated their commitment to that family unit in the period after separating. The proceedings discussed two other cases in the UK which developed the notion of what a relevant couple is. One was a same sex couple and both partners had carried and given birth to a biological child. One child had been adopted by the other parent, and they were in the process of finalising the adoption of the second child when they separated.
The judge stressed the welfare of the child, rather than traditional definitions of family, must be the paramount consideration
McKenzie added
“What these cases have in common is that the co-parents were able to maintain a positive and constructive relationship which benefitted the children, sharing the day-to-day parental responsibilities.
“If the order had not been made the children in these cases would have been denied the social and emotional benefits of the recognition of their relationship with both of their parents.”
The decision showed a “child-centric approach ” said Nick Gova, head of family at London law firm Spector Constant & Williams said; which could ultimately see English courts influenced by the decision.
“While not binding in England, it could encourage the English courts to take a more flexible and pragmatic approach in relation to a child’s housing where they clearly thrive, rather than focusing on rigid legal categories. That said it is clear, in both jurisdictions that a child’s welfare remains the court’s paramount concern.”
