Judge rules separated couple can finalise adoption in Scots legal first

A judge has ruled that two people can finalise the adoption of an eight-year-old girl despite them having separated and no longer living in the same household.

In the first legal opinion of its kind in Scotland, a judge at the Court of Session ruled the adults can adopt as co-parents even though they are not married, in a civil partnership, or together as a couple.

Lady Tait said they are nevertheless living as a “family unit”, albeit in two households, and the adoption would be in the best interests of the girl.

The law firm which represented the two adults, who have not been named, said the decision aligns adoption legislation with the reality of modern family life.

A written judgment said the girl had been living with the couple since 2020, though they separated in the middle of 2023.

Since then, the girl and a boy she regards as a sibling have had a home with both parents.

In her ruling, Lady Tait noted the girl is “thriving” and her adoptive parents have made a lifelong commitment to her.

The judge’s decision, which was made in June and published this week, said: “It is not necessary for the ‘partners’ to be sharing the same property in order to be living in a family relationship.

“Following upon their separation, the petitioners have demonstrated their commitment to maintain that family unit for the benefit of both children.”

Scottish legal firm Wright, Johnston & Mackenzie (WJM) acted on behalf of the adults.

Roger Mackenzie, partner at 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 law firm noted that despite the ruling, it is not the norm for people who are not in a long-term relationship to adopt.

The proceedings discussed two other cases in the UK which developed the notion of what a “relevant couple” is.

Mr Mackenzie 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.”