Separated co-parents living in two households can be a “relevant couple” for joint adoption: a purposive construction of section 29(3)(d) of the Adoption and Children (Scotland) Act 2007

Case: Petition of AB and CD for orders under the Adoption and Children (Scotland) Act 2007

Citation: [2025] CSOH 87 (Outer House, Court of Session), 13 June 2025, Lady Tait

Introduction

This published opinion addresses a novel and practically important question in Scottish adoption law: can two separated, unmarried petitioners who no longer cohabit, but who continue to co‑parent in a stable and integrated two-household arrangement, qualify jointly as a “relevant couple” under section 29(3)(d) of the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”)? Lady Tait’s decision confirms that they can.

The case concerns an eight-year-old girl who has lived with the petitioners, AB and CD, since August 2020. A permanence order with authority to adopt was made in April 2021. In July 2023 the petitioners separated; since then, both this child and the petitioners’ adopted son have lived in an equal, shared-care arrangement across two households. The children regard each other as siblings, the child regards both petitioners as her parents, and she expressed a wish to be adopted. Social work (section 17) and curator ad litem reports were uniformly supportive.

The statutory sticking point was whether the petitioners—no longer cohabiting, unmarried, and not civil partners—could nonetheless satisfy section 29(3)(d) as “persons who are living together as if civil partners in an enduring family relationship.” On a purposive construction, and guided by analogous jurisprudence under the Human Fertilisation and Embryology Act 2008 and the Adoption and Children Act 2002 (E&W), the court held that they could. An adoption order was granted under section 28 of the 2007 Act.

Summary of the Judgment

The child is thriving in a stable, integrated family arrangement spanning two households; she is loved, well cared for, and wishes to be adopted ([14], [15]).
The welfare of the child throughout her life is the court’s paramount consideration (section 14(3) of the 2007 Act; [5]).
Construing section 29(3)(d) purposively and consistently with Article 8 ECHR, the court held that “living together as if civil partners in an enduring family relationship” does not mandate physical cohabitation in one home ([16]–[17]).
The decisive test is whether there is (i) an unambiguous intention to create and maintain family life, and (ii) a factual matrix consistent with that intention—a fact-and-degree assessment ([9], [11], [17]).
On the facts, the petitioners formed and have maintained a stable family unit (including their adopted son) since 2020, continuing post-separation with effective co-parenting. They therefore constitute a “relevant couple” under section 29(3)(d) ([17]).
Refusing the order would deny the child legal recognition matching her social and emotional reality and risk differential treatment from her brother ([16]–[17]).
Adoption would safeguard and promote the child’s welfare throughout her life; an adoption order was accordingly made ([18]).

Statutory Framework and Key Issue

Two provisions of the 2007 Act are central:

Section 14(3): the child’s welfare throughout life is the court’s paramount consideration ([5]).
Section 29(3)(d): a “relevant couple” includes “persons who are living together as if civil partners in an enduring family relationship” ([6]).

The petitioners were not married or in a civil partnership, and they no longer shared a household. The question was whether, despite non-cohabitation post-separation, they could still be said to be “living together as if civil partners” and in an “enduring family relationship” for the purposes of joint adoption.

Precedents Cited and Their Influence

1) AB Petitioners [2023] CSOH 46 (HFEA 2008, Scotland)

In AB Petitioners, Lady Carmichael considered whether applicants for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 were “two persons who are living as partners in an enduring family relationship” notwithstanding their separation. Adopting a liberal and purposive approach, she held:

Whether an “enduring family relationship” exists is a matter of fact and degree, turning on an unambiguous intention to create and maintain family life and a factual matrix consistent with that intention.
A broad, flexible construction is appropriate to secure effective protection of Article 8 ECHR rights and to ensure legal reality matches social and emotional reality.

Lady Tait applied this reasoning to the analogous language in section 29(3)(d) of the 2007 Act, treating the “enduring family relationship” inquiry as similarly fact-sensitive and purposively oriented ([9], [16]–[17]).

2) A v B and others [2021] EWFC 45 (ACA 2002, England & Wales)

In A v B, Cobb J addressed an adoption under the Adoption and Children Act 2002 where the applicants, two women who had separated, continued to jointly raise their children under an equal shared-care arrangement. The court held:

The ACA 2002 phrase “living as partners in an enduring family relationship” should be construed to achieve a sensible result in light of the Act’s purpose—the promotion of children’s best interests through adoption.
There is no rule that intimacy, conjugality, or cohabitation is required to constitute an “enduring family relationship.”
What matters is a clear intention to create and maintain family life and facts consistent with that intention; sharing a single property is not necessary.

Lady Tait expressly drew on A v B, given the conceptual overlap of the tests and the similar legal, personal and social consequences of adoption and parental orders ([10]–[12]). The case underscores a modern, child‑centred reading that recognises diverse family forms, including two‑household arrangements that are cohesive and stable.

Legal Reasoning

Purposive construction tied to welfare and Article 8

The court anchored its approach in three interlocking principles:

Paramountcy of welfare (section 14(3)): Adoption must promote the child’s welfare throughout life ([5], [18]). A result that disrupts an established, secure family identity is antithetical to this objective.
Purposive reading of section 29(3)(d): The aim of section 29 is to ensure that adoption places a child into a stable family unit, not to impose a rigid cohabitation formality divorced from the child’s lived experience ([17]).
Article 8 ECHR: A broad and flexible interpretation is warranted to secure effective protection of family life and to ensure that legal recognition keeps pace with social and emotional reality ([9], [16]).

The two-limb factual test

Following AB Petitioners and A v B, the court treated the section 29(3)(d) requirement as satisfied where:

There is an unambiguous intention to create and maintain family life; and
A factual matrix consistent with that intention exists—assessed as a matter of fact and degree ([9], [11], [17]).

On the evidence, the petitioners have for years functioned as a coherent family with their two children, continued to do so after their separation, and share both practical parenting and decision-making responsibilities across two homes. They attend activities together and maintain frequent, constructive communication focused on the children’s welfare ([3], [15], [17]).

“Living together” does not require cohabitation in a single property

Echoing Cobb J’s analysis, the court rejected any rigid requirement of co-residence, intimacy, or conjugality as conditions for an “enduring family relationship.” The phrase “living together as if civil partners” is concerned with substance—whether the pair are, in reality, operating as a family unit—not the formality of a single household ([11], [16]–[17]).

Parity and stability within the family unit

A notable aspect of the court’s reasoning is the emphasis on sibling parity and the stability of an established family system. Treating this child differently from her brother—who is already adopted—would undermine her sense of belonging and create an unnecessary legal incongruity, especially given the identical care regime and family identity since 2020 ([15]–[17]).

Impact and Implications

Doctrinal significance

First published Scottish authority recognising that separated, non‑cohabiting joint applicants can be a “relevant couple” under section 29(3)(d) where they operate an enduring family relationship across two households.
Clarifies that “living together” is functional, not purely geographic: co‑parenting in a stable, integrated two-household arrangement may suffice.
Aligns Scottish adoption practice with progressive approaches developed in Scottish HFEA jurisprudence and English adoption cases on similar language.

Practical effects for future cases

Evidence focus: Applicants should demonstrate (i) clear, ongoing intention to maintain family life, and (ii) a stable factual pattern—shared care, joint decision-making, consistent communication, and positive professional assessments.
No automatic gateway: The test remains fact-sensitive. Mere amicability post-separation is insufficient absent integration into a stable, child‑centred family unit.
Sibling considerations: Where sibling parity and shared care are present, courts may treat unified legal recognition as conducive to welfare.
Local authority practice: Agencies can support joint applications by separated co‑parents where child‑centred stability is demonstrable, rather than insisting on single‑applicant workarounds.

Human rights and policy

Article 8 ECHR embedded: The judgment confirms that statutory language should be read to secure effective protection of family life and to avoid a mismatch between legal status and lived reality.
Recognition of diverse families: Two-household families created post‑separation may nonetheless be cohesive, enduring, and optimal for a child’s welfare.

Limitations

Outer House decision: While authoritative and persuasive, it is a first‑instance judgment. The approach may be reviewed or refined by appellate courts in due course.
Fact dependency: The decision does not create a blanket rule. It maps out criteria and a method of analysis rather than guaranteeing outcomes.

Complex Concepts Simplified

Adoption order: A court order making the adopters the child’s legal parents for all purposes. Here, it was granted under section 28 of the 2007 Act.
Permanence order with authority to adopt: A prior order (April 2021) establishing long-term care arrangements and authorising adoption. It typically resolves questions of consent and parental responsibilities before the adoption application proceeds.
Relevant couple (section 29): The 2007 Act permits adoption by a single person or by a “relevant couple,” which includes married/civil partners and, as here, two persons “living together as if civil partners in an enduring family relationship.”
Enduring family relationship: A stable, ongoing family life between the applicants, assessed by intention and facts. It does not require cohabitation, intimacy, or conjugality; what matters is the integrated exercise of family life.
“Living together as if civil partners”: Interpreted functionally to mean living as a family unit. It can be satisfied even when the applicants maintain two households, provided the relationship is cohesive and child‑centred.
Section 17 report: A social work report to the court on the child’s circumstances and the suitability of the applicants, required before making an adoption order.
Curator ad litem: An independent officer appointed to safeguard the child’s interests and report to the court.
Article 8 ECHR: Protects the right to respect for private and family life. The court uses it as a guide to interpret statutes in a way that protects real family relationships.
Purposive (liberal) construction: Interpreting legislation by reference to its purpose—here, promoting child welfare—rather than applying literalistic constraints that could harm children’s interests.

Key Takeaways

Separated co‑parents who no longer share a single home can qualify as a “relevant couple” for joint adoption under section 29(3)(d) of the 2007 Act.
The governing inquiry is twofold: clear intention to create and maintain family life, and a factual matrix consistent with that intention—assessed case by case.
“Living together” is a functional concept focused on the stability of the family unit; it does not impose a cohabitation requirement.
Article 8 ECHR and the welfare paramountcy principle justify a broad, flexible reading that aligns legal status with lived family reality.
Sibling parity and the avoidance of differential treatment can be weighty welfare considerations when families reorganise post‑separation.

Conclusion

Lady Tait’s judgment provides a clear and modern statement of principle for Scottish adoption law: the phrase “living together as if civil partners in an enduring family relationship” in section 29(3)(d) is to be construed purposively, with the child’s welfare and Article 8 ECHR firmly in view. On that approach, separated co‑parents who have established and maintained a cohesive two‑household family life may adopt jointly, even without cohabitation, where the evidence demonstrates an unambiguous intention to maintain family life and facts consistent with that intention.

This decision meaningfully aligns legal recognition with children’s social and emotional realities, averts arbitrary disparities between siblings in the same family unit, and supplies practitioners with a principled framework—grounded in welfare paramountcy and human rights—for evaluating joint adoption applications from separated co‑parents. While fact‑dependent and subject to future appellate consideration, it marks an important development in recognising the diversity of contemporary family forms within Scottish adoption law.