AB and CD, Petitioners [2025] CSOH 87 (Outer House, Court of Session)

A Scottish legal first: a separated couple permitted to adopt a child together.

Background

In a decision believed to be the first of its kind in Scotland, the court allowed a separated couple to adopt a child together. The petitioners were not married or in a civil partnership and no longer lived in the same household, having separated in 2023, but they continued to co-parent the child, who had lived with them since 2020, alongside a son they had already adopted. The question was whether a couple who had separated could still be a relevant couple for the purposes of the Adoption and Children (Scotland) Act 2007, which requires adopters to be persons living together as if civil partners in an enduring family relationship.

The decision

Treating the welfare of the child throughout her life as the paramount consideration, the court adopted a broad and purposive reading of the legislation. It held that living in the same property is not essential to an enduring family relationship; what matters is an unambiguous intention to create and maintain family life, borne out by the facts. The petitioners had built and sustained a single family unit across two households, co-operating closely in the child’s care, and the child regarded them as her parents and their adopted son as her brother. Refusing the order would have left the child without a legal reality matching her everyday one, and would have placed her in a different position from her brother. The court was satisfied that the couple were a relevant couple and that adoption was in the child’s best interests.

Why this decision matters

The decision reflects the flexibility of Scottish adoption law in recognising the many forms a stable and committed family can take. For separated or unconventional households considering adoption, it shows that the substance of family life, rather than its outward form, is what the court examines.