Summary of Opinion — Outer House, Court of Session [2025] CSOH 87

Factual and Procedural Background

This is a petition for adoption of an eight-year-old child presented to the Outer House, Court of Session. The Petitioners are unmarried and are not civil partners. They no longer live in the same household but have co-parented the child and their adopted son. The child has lived with the Petitioners since 16 August 2020. In April 2021 a permanence order with authority to adopt was granted. The Petitioners separated in July 2023; since then both children have had a home with each of the Petitioners and regard each other as siblings.

The child is described as thriving in the Petitioners' care, progressing well at school, and receiving consistently high standard care. Both the section 17 report and the curator ad litem report were positive and supportive of the orders sought. The Petitioners sought an adoption order under section 28 of the Adoption and Children (Scotland) Act 2007, and following a hearing the court made such an order. Because the petition raised an issue not previously the subject of a published opinion in Scotland, the presiding judge provided a written decision.

Legal Issues Presented

1. Whether the Petitioners qualify as a "relevant" couple under section 29(3)(d) of the Adoption and Children (Scotland) Act 2007 — specifically whether two persons who have separated and live in different households can be regarded as "persons who are living together as if civil partners in an enduring family relationship."
2. Whether, applying the statutory requirement that the child's welfare throughout life be the paramount consideration (section 14(3) of the 2007 Act), it is in the child's best interests to make an adoption order in the particular circumstances.
3. How associated jurisprudence (including decisions under the Human Fertilisation and Embryology Act 2008 and the Adoption and Children Act 2002 in England and Wales) should inform the construction of the statutory phrase "living together as if civil partners in an enduring family relationship" in the context of adoption petitions in Scotland.

Arguments of the Parties

Petitioners' Arguments

• The Petitioners, though separated and each having other partners, have created and maintained a cohesive, integrated family life with the child and their adopted son such that they should be treated as a "relevant couple" for the purposes of section 29(3)(d).
• Senior counsel relied on comparative and persuasive authority from (a) decisions under section 54 of the Human Fertilisation and Embryology Act 2008 and (b) English jurisprudence under the Adoption and Children Act 2002, arguing for a liberal and purposive approach to construction of the statutory phrase.
• It was submitted that an adoption order would be consistent with Article 8 of the European Convention on Human Rights because refusal would deny the child recognition that matches her day-to-day emotional and social reality.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded by reference to the controlling statutory framework and the facts established in the petition and supporting reports.

Statutory framework:

• Section 14(3) of the Adoption and Children (Scotland) Act 2007 — the child's welfare throughout life is the court's paramount consideration.
• Section 29(3)(d) of the 2007 Act — to be a "relevant" couple a pair of persons must be "persons who are living together as if civil partners in an enduring family relationship".

Approach to construction:

• The court adopted a liberal and purposive approach to the statutory phrase, following the reasoning in the authorities relied upon by the Petitioners (Case A and Case B). The court treated the issue as a question of fact and degree: what is required is (1) an unambiguous intention to create and maintain family life and (2) a factual matrix consistent with that intention.
• The court rejected any requirement that "partners" share the same property, intimacy, or conjugality in order to qualify; rather, the substance of family life and the intention to maintain it matter.
• The court indicated that a broad and flexible construction may be appropriate where necessary to secure effective protection of the child's Article 8 ECHR rights and to ensure the legal reality reflects the day-to-day reality of the child's family life.

Application to the facts:

• The factual findings were that the Petitioners had provided consistent, high-standard care since August 2020; the child is thriving, secure and settled; the child shares her week between the Petitioners; both Petitioners communicate regularly and are committed to the child's welfare; the child regards each of the Petitioners as a parent and regards the adopted son as her brother; both children have an identical shared-care arrangement.
• The court concluded that the Petitioners had demonstrated an unambiguous intention to create and maintain family life and that the factual matrix was consistent with that intention despite the Petitioners' separation and separate households since July 2023.
• Given the paramountcy of the child's welfare, the court emphasised the value to the child's development of a stable family unit and the importance of legal recognition to match the child's lived reality.

Conclusion of reasoning:

• On the facts and applying the cited authorities, the Petitioners were held to be a "relevant couple" within the meaning of section 29(3)(d) of the 2007 Act.
• The court was satisfied that making an adoption order would safeguard and promote the child's welfare throughout her life and that it was better for the child that the adoption order be made than that it not be made.

Holding and Implications

HOLDING: An adoption order was made under section 28 of the Adoption and Children (Scotland) Act 2007.

Implications and immediate effects:

• The adoption order provides the child with legal security consistent with her social and emotional reality within the family unit formed by the Petitioners and their adopted son.
• The court concluded that adoption in these circumstances safeguarded and promoted the child's welfare throughout her life, which is the statutory paramount consideration.
• The decision applied a liberal and purposive construction of the statutory phrase in section 29(3)(d), consistent with the principles set out in the cited authorities. The decision expressly considered Article 8 ECHR rights in reaching a construction that aligns legal status with lived family life.
• No broader rule beyond the court's application of those principles to the particular facts is asserted in the opinion; the direct legal consequence for the parties is the making of the adoption order and the associated legal recognition of the child within the family unit.

Anonymization note: All proper names and potentially identifying organisational names appearing in the source opinion have been replaced with consistent placeholders (for example, "Petitioners," "Judge Tait," "Case A," "Case B," "Attorney Scott," "Law Firm A") in accordance with the summary instructions. All factual material above is drawn exclusively from the provided opinion.