Court of Session Opinion accepts the reality of equal shared parenting

Adoption cases rarely make the headlines. But last month, a Scottish court delivered a landmark decision that attracted national media attention.

Lady Tait, sitting in the Outer House of the Court of Session, allowed the adoption of an eight-year-old child by a couple who had separated two years earlier.

This was the first case in Scotland where adoptive parents who were no longer living together were still recognised as a “relevant couple” under the Adoption and Children (Scotland) Act 2007.

The Court’s Reasoning

Lady Tait looked closely at the reality of the child’s life:

• The adoptive parents had created a stable family unit with their two children.
• Since their separation, they continued to co-parent across two homes.
• Both parents were committed, communicative, and consistent in the care they provided.
• The child shared her time equally between them and felt secure, loved, and settled.
• Crucially, the child wanted to be adopted.

Lady Tait observed: “It is not necessary for the ‘partners’ to be sharing the same property in order to be living in a family relationship.”

Roger Mackenzie, partner at WJM solicitors, of the adoptive parents, welcomed the decision:

“This decision reflects societal shifts and the need for family law to adapt as the dynamics of families and relationships continue to evolve”.

Shared Parenting Scotland also welcomes the decision and sends best wishes to the family for their future.

Importance of keeping an open mind

Kevin Kane, Chief Executive of Shared Parenting Scotland, said:

“This was a public law case. We hope that Lady Tait’s determination to look with an open mind at the evidence of the parents’ shared commitment and their practice of equal parenting will provoke some rethinking among local authorities and government agencies of attitudes and practices. Our casework reveals repeated examples of policies and bureaucratic systems that have fallen behind the reality that many children in Scotland live across two stable homes.

For example, if the child is enrolled at a state school they will find that the Parents Portal wants to identify one of them as the main parent, no matter how clearly, they can show that it “shares the week” equally between them.

If one of the parents lives further away from the school than the other and applies to the ‘assistance with travel’ scheme, many local authorities will refuse on the basis that only the address of the main parent (see Parent Portal, above) is covered.

Similarly, if one of the parents is in receipt of benefits and applies for support through the Free School Meals/Clothing Grant scheme, designed to support children in low income household, many local authorities will refuse on the basis that they accept applications only from the main parent.

Shared Parenting is already a reality.

Kevin Kane added: “Shared parenting to some extent is already a reality in modern Scotland. A third of the school roll have parents who do not live together. Yet too many administrative systems and outdated policies don’t accept, as Lady Tait found, ‘it is not necessary for the ‘partners’ to be sharing the same property in order to be living in a family relationship’. Administrative systems should incorporate the evolution of parenting in Scotland, not resist it. Policies should support the best efforts of parents for their children, not second guess them”