Civil Court decision Aligns Adoption Legislation with Modern Families

A Court of Session Opinion published today (September 25) has taken into consideration modern family dynamics by ruling in favour of individuals who wanted to finalise an adoption as a couple despite having separated.

The ruling is the first of its kind published in Scotland, setting a new legal precedent.

Wright, Johnston & Mackenzie acted on behalf of the clients who were represented by Roger Mackenzie, a Partner on the Family Law Team.

The clients in question were a couple who originally cohabited but were not married or in a civil partnership, and they were already the adoptive parents of an older child.

They were in the process of adopting the child’s sibling when they separated, however they wished to continue with the adoption process.

Adoption legislation stipulates that 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.

This meant the now-separated couple faced the prospect of having to choose which one of them would progress with the application as a single adopter.

But 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.

Roger Mackenzie, Partner, WJM, 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.

Roger 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.”