Two homes, one family: a Scottish first in adoption law

In September 2025, in a landmark decision was published by the Court of Session in The Petition of AB and CD, [2025] CSOH 87, granting authority to adopt the child X under s29 of the Adoption and Children (Scotland) Act 2007.

The key and novel issue for determination in the case was whether they could be considered a “relevant” couple under section 29 of the Act, even though they had separated two years prior. The pair were successfully granted the legal right to adopt the child jointly – marking the first of its kind in Scotland.

The judgement got us thinking about whether the flexibility the court demonstrated in this case may be able to flow through to other areas of Family Creation Law, and if the Court may also take this approach to other areas such as Fertility and Surrogacy Law. The progressive judgement has the potential to reshape the interpretation of the law in these areas, where it reinforced the importance of a the best interests of the child taking ultimate precedence over the traditional legal definitions of what a family looks like.

The Judgement

The Petitioners AB and CD separated in July 2023, two years after the grant of a permanence order with authority to adopt was made in respect of the child X, now aged 8. They sought orders under the Adoption and Children (Scotland) Act 2007, with the key issue for determination being whether they could be considered a “relevant” couple under section 29 of the Act. Importantly, they were already the adoptive parents of X’s sibling, and were in the process of adopting X when they separated.

In terms of section 29(3)(d) of the 2007 Act, a “relevant” couple is a couple whose members are “persons who are living together as if civil partners in an enduring family relationship”. It was submitted that while the petitioners have separated and both had new partners, they have created a cohesive, integrated family life together with the child and their adopted son such that they can be said to be a relevant couple.

The Court of Session took a flexible approach to their interpretation of the legislation, focusing on the stability and continuity of the family unit. The court also focused on the couple’s ability to jointly provide a stable, loving and committed family environment, even from separate households.

In doing so, the court effectively acknowledges a fact (long accepted in other areas of family law) that children can thrive in split-home arrangements. In the same way that divorced or separated parents can successfully co-parent from different homes where they are working effectively together, the existence of two households does not undermine the stability or permanence for the child, and that has now been accepted by the court in this judgement.

The ruling reaffirmed that the overarching purpose of Adoption legislation is to ensure that the children are placed in safe, nurturing family units. The couple’s continued cooperative parenting and unwavering commitment to the child’s welfare after separation exemplified that principle in practice and led to the successful outcome for them.

Crossover with Fertility Law

What makes this decision particularly interesting today is its potential broader influence to other areas of Family Creation Law. By prioritising the child’s best interests over strict legal interpretation of the legislation, the court signalled a willingness to recognise modern family structures that do not fit neatly into traditional legal categories.

Indeed, there was reference made to case law from the Fertility Law world within the judgement itself. Senior counsel for the petitioners relied on the case of AB Petitioners (2023), in which Lady Carmichael took a liberal and purposive approach to what constituted an “enduring family relationship” in respect of a similar provision in the Human Fertilisation and Embryology Act 2008 (section 54). What was required there was an unambiguous intention to create and maintain family life and a factual matrix consistent with that intention.

A Nod to Future Flexibility?

This judgement could prove influential in other evolving areas of family law, including surrogacy arrangements, intentional co-parenting agreements between individuals who are not in romantic relationships, and other collaborative parenting models. As family creation becomes increasingly diverse, the courts may continue to adopt a child-centred approach that focuses less on relationship labels and more on the reality of commitment, cooperation and stability for the child at the centre.

The lasting impact of this case lies not simply in the outcome, but in the principle it reinforced: that a stable family life can exist in separate households, and that the law must be sufficiently flexible to reflect the possible realities of modern families. It acknowledged the complex realties of modern families, and confirms that a child’s welfare must remain at the heart of every legal decision.

Families may evolve, relationships may shift, but the enduring commitment to a child’s upbringing can, and should, be legally recognised.

For family law practitioners, social workers and adoptive families, this case highlights the growing legal flexibility around what constitutes a family and reinforces the central trust that love and stability are what truly defines parenthood.

If you are navigating adoption, co-parenting, surrogacy or any other modern family arrangement and require advice on how the law may apply to your circumstances, our family team would be pleased to assist you. Contact us at fertilitylaw@bto.co.uk

Beverley Addison, Associate: bea@bto.co.uk / 0141 221 8012

Maia Campbell, Trainee Solicitor: mcb@bto.co.uk / 0141 221 8012