The Court of Session recently handed down a landmark ruling in relation to adoptions in Scotland. This significant judgment has reshaped how Scottish courts interpret the eligibility criteria for couples seeking to adopt, particularly the requirement to be a “relevant couple”.
Our specialist family solicitors understand that modern families come in many forms. This progressive ruling acknowledges that stable family units can exist even when couples live apart, provided certain other factors are present, such as effective co-parenting and an integrated approach to raising children. If you’re considering adoption in Scotland and have questions about your eligibility, our experienced team is here to help.
In this article, we’ll explore the background to this landmark case, examine the Court’s reasoning and decision, consider the broader context within Scottish adoption law, and explain what this means for prospective adopters.
Table of Contents
- Background to the Case
- The Court's Decision
- Broader Context in Adoption Law
- What This Ruling Means for You
- Key Takeaways
- Frequently Asked Questions
Case Overview
The Court of Session recently handed down a landmark ruling in relation to adoptions in Scotland.
The case concerned an unmarried couple who were applying to adopt a child. They had previously adopted the child’s older sibling, and the younger sibling, the subject of the current adoption application, had been in their care since 2020. A permanence order had previously been granted in respect of the child.
In 2023, in the midst of their journey towards adopting the younger child, the couple separated. By the time the matter came before the court, they lived in separated homes and each of them had new partners. It was arguable, therefore, that they no longer satisfied the black letter law relating to one of the key eligibility criteria in terms of the Adoption and Children (Scotland) Act 2007 for a couple who wish to adopt – that they are either married, in a civil partnership, or living together in an enduring family relationship. The couple wished to continue with their joint application for adoption, rather than potentially require to choose one of them to continue as a single applicant. The key question for the court, then, was whether the applicants could be considered a “relevant couple” in satisfaction of the eligibility criteria set out in the 2007 Act.
The Court’s Decision
The court noted that the child was thriving in the care of the former couple, and that the couple had demonstrated after separation that they had made a lifelong commitment to the child and to maintain their family unit for both children post-separation. The child herself saw both as her parents and wanted the adoption to proceed. In order to ensure that the value of a stable family unit for the child was promoted, the court adopted a liberal, “broad and flexible” interpretation of the wording of the legislation, and held that it was not necessary for two individuals to live together in one home to be considered as living in a family relationship. Lady Tait noted that the former couple were living as a cohesive, integrated “family unit” despite residing in separate homes.
In all of the circumstances, and despite the separation, the court ruled that the adoption would safeguard and promote the child’s welfare.
Broader Context in Adoption Law
This ruling follows on the heels of a judgment in a 2023 surrogacy case in Scotland, where Lady Carmichael took a liberal approach to the interpretation of “enduring family relationship” under the terms of the Human Fertilisation and Embryology Act 2008, as well as adoption and surrogacy cases in England where flexible, liberal approaches have been taken by judges to certain eligibility criteria including what constitutes a family or couple. These cases have underlined that the stability of an integrated family unit is paramount over the exact composition of that unit, and recognise that the realities of modern life mean that such a stable family unit is possible even where two individuals live apart. As Lady Tait observed in her recent judgment that declining to make the adoption order would mean that the child “would not have the legal reality which matches her day to day reality”, and flexibility was required to ensure that the child’s rights were protected. It was noted that the purpose of the criteria relating to defined relationships in the 2007 Act was to ensure that a child was adopted into a stable family unit, and that there was no reason in this case to consider the unit to be insufficient to provide the child with the legal security of the adoption order.
Whilst adoptions by separated couples are rare and may remain so, the Scottish court’s flexible approach to the wording of the legislation is an interesting and crucial development in adoption law in Scotland, and underscores the paramountcy of the welfare of the child and the benefits of a stable family unit, whether ‘traditional’ or otherwise. The courts will of course continue to approach such matters on a case by case basis, however the recent body of case law which has started to develop signals that the courts may continue to approach such questions with flexibility.
What This Ruling Means for You
The Court of Session’s landmark ruling represents a significant development in adoption law Scotland. By adopting a “broad and flexible” interpretation of what constitutes a “relevant couple” under the Adoption and Children (Scotland) Act 2007, the court has recognised that stable and enduring family units can exist across two households when children are thriving in cohesive, integrated care arrangements.
This progressive decision reflects societal shifts and demonstrates Scottish courts’ willingness to prioritise the welfare of the child as the paramount consideration over rigid definitions of family life. The ruling aligns adoption legislation with the realities of modern family life, acknowledging that adoptive parents can maintain a stable and enduring relationship and work positively together as co-parents despite no longer sharing the same property or living in the same household.
If you are considering adoption in Scotland and have questions about your eligibility or circumstances, contact our specialist family law solicitors for expert advice tailored to your situation.
Key Takeaways
- Whilst there are strict eligibility criteria for adopters in Scotland, the courts have shown willingness to approach these criteria flexibly and with cognizance of the realities of modern family and social norms
- The case does not necessarily mean that two individuals will be able to adopt a child together despite not being in a relationship. The court stressed that in this case, the couple had provided a very integrated, stable family unit for the child and her sibling, and had co-parented effectively for several years post-separation.
- If you are in a position where you do not know if you meet all of the criteria as a prospective adopter, take legal advice from a specialist Family solicitor to discuss your options.
Jones Whyte Is Here To Help
The adoption process can feel overwhelming, but you don’t have to navigate it alone. Whether you’re exploring adoption or have specific questions, Jones Whyte’s family law specialists are here to provide personalised support. Contact us today.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
