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High Court judge clarifies position on adoption for co-parenting families where relationship has ended

The Family Court has ruled that in co-parenting families one parent may adopt a child born to the other even if they are no longer partners.

In E (Adoption by One Person) [2021] EWFC 45 Mr Justice Cobb said that he had to decide whether two people no longer in a loving relationship - and who were never married or civil partners - can still be a ‘couple' under the Adoption and Children Act 2002, where this is defined as “living as partners in an enduring family relationship”, so as to permit Ms A to apply for an adoption order for a child born to Ms B while they were in a loving relationship.

The judge said: “This is the important question, arising in the context of an application brought under section 51(2) ACA 2002 ...'Adoption by One Person’).

“On the particular facts of this case, where a cohesive, ‘integrated', family life has been created by Ms A and Ms B for the subject child ‘Emma' and her older brother ‘Theo’ notwithstanding the end of their loving relationship, I feel able on balance to answer the question affirmatively.

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“Ms B is Emma's 'parent' in all senses of the word - genetic, gestational, psychological - there is no doubt on the evidence that Ms A is every bit as much her other psychological parent.”

Although no one put any contrary argument, the judge said he had still sought to address the possible counter-arguments.

From 2011-20, Ms A and Ms B were in a loving and exclusive relationship and agreed Ms A should be the biological mother of their first-born child, using a sperm donor.

Theo was born in 2015 and in 2018 Ms B adopted him and so they both became in law and reality Theo's parents.

They decided to reverse this process for their next child, with Ms B becoming the biological mother of Emma and Ms A seeking adoption.

But the relationship ended soon after Emma’s birth and the couple separated though arranged for the two children to spend equal amounts of time with each of them. The judge was told the two children were “inseparable”.

Giving judgment, Cobb J said: “When this application was first presented to me, I was sceptical about its prospects.

“My uncertainty was located in the statutory language itself, and in particular the words/phrases: 'the partner’, 'a couple’, 'living as partners’…I was struck by the use of the definite article suggesting that the applicant would have to be the partner of a parent of the person to be adopted, not a partner.”

But he said that the adoption should proceed because the Act “should be construed in such a way as to achieve a 'sensible' result”.

He took into account that it would be in Emma’s best interest to be adopted by Ms A, and said it was not a disqualifying factor that the two women had never married or been civil partners.

Cobb J said he was “satisfied that I should interpret the ACA 2002 in such a way as to give legal respect to the rights of Ms A, Ms B, Theo, and Emma to enjoy family life in its most complete form, through the possibility of securing that relationship legally by adoption.”

He added though: “If family life had not been so clearly demonstrated by effective co-parenting of an existing child of the family; if the care of the child(ren) in separated homes had not been so obviously 'shared' as the arrangements which obtain here; if the relationship of the adults as co-parents had not been shown to be as amicable as that which exists between Ms A and Ms B, the conclusion may have been different.”

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