Two people who had separated after being in a relationship could still qualify as a “couple” for the purpose of applying to adopt a child.

That was the decision of the Family Court in a case involving a same-sex couple who had never married or become civil partners.

The court had to decide whether to grant one of the women, referred to as applicant X, permission to apply for an adoption order under the Adoption and Children Act 2002 in respect of a child referred to as C2.

X had been in a committed same-sex relationship with her partner, referred to as Y, for several years.

They decided to start a family and agreed that X would be the biological mother of their first child, conceived using a sperm donor.

In 2015, X gave birth to a son, C1, and Y successfully applied to adopt him. When they decided to have a second child, they agreed that Y would be the biological mother and that X would adopt.

In 2018, the second child, C2, was born. Shortly after her first birthday, X and Y separated. The separation was amicable, and they implemented a shared care arrangement for the children. In November 2020, X applied to adopt C2. The local authority and the children’s guardian supported her application.

Under the Act, the court could make an adoption order on the application of one person if satisfied that “the person is the partner of a parent of the person to be adopted”.

The court granted the application. It held that the issue was whether X and Y were “living as partners in an enduring family relationship” and thus a “couple” for the purposes of the Act.

Whether people were living as partners in an enduring family relationship was a question of fact and degree for the court to consider in every case. The fact that two people had never married or been civil partners was not a disqualifying factor.

It was not necessary for them to be sharing the same property; what was required was an unambiguous intention to create and maintain family life and a factual matrix which was consistent with that intention. There was no rule requiring intimacy, conjugality, or co-habitation to be a component of an enduring family relationship.

Family life existed between X, Y and C2. X had played an equal role in the care of C2 while the couple lived together, and she continued to do so in the shared care regime which they had since established.

They were a completely integrated and close family unit. The law permitted the court to conclude that they were living as partners in an enduring family relationship.

X was entitled to apply for an adoption order. The appropriateness of an order would be considered at a separate hearing.

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Case Citations: E (A Child) (Adoption by one person) Family Court Cobb J

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