ZC02/25 - [2025] EWHC 1268 (Fam)

Legal framework

The statutory framework for the making of adoption orders, and the consequences thereof, are set out in paragraphs 42 to 51 of the ACA 2002.

Section 42(3) provides that an application for an adoption order cannot be made by a partner of a parent of the child unless the child has had his home with him and/or his partner for the preceding six months.

Section 46 sets out the definition and consequences of adoption orders. Section 47 sets out the requisite conditions relating to consent or dispensing of the same, and Section 49 outlines who can apply for an adoption order. Section 51 deals with an application which is made by one person. For the purpose of this application, ss51(1) and (2) apply, as the applicant is not married or a civil partner, and the court is being asked to find that it is satisfied that he ‘is the partner of a parent of the person to be adopted’.

S144(7) ACA provides that ‘for the purposes of this Act, a person is the partner of a child’s parent if the person and the parent are a couple but the person is not the child’s parent’, and s144(4) that ‘in this Act, a couple means (a) a married couple, or (aa) two people who are civil partners of each other, or (b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship’. S144(5) provides that partners in an enduring family relationship cannot be a person and his/her grandparent, parent, sister, brother, aunt or uncle.

In Re E (Adoption by One Person) [2021] EWFC 45, Cobb J dealt with an application by a person who had been in a relationship with the other parent, which had ended just after the birth of the second child. In that case the question arose as to whether their situation was such that they could properly be described as partners in an enduring family relationship. They were not married or in a civil partnership and despite the fact they were no longer in a romantic relationship at the time of the application in respect of their second child, the judge concluded that, on the facts, a cohesive and integrated family life had been created for that child and her older brother. He found that they were indeed partners in an enduring family relationship.

In coming to this conclusion he accepted the submissions of counsel for the applicant that the language and structure of the Act allows it to be interpreted in such a way as to fit the needs and circumstances of family life now. He referred to a line of cases relating to the making of adoption and parental orders, including Re T and M (Adoption) [2010]: EWHC 964 (Fam); [2011] 1 FLR 1487 (where Hedley J emphasized that an enduring family relationship does not require cohabitation and that the intention to create and maintain family life and a factual matrix consistent with that intention are necessary), Re X (A Child)(Surrogacy Time Limit) [2015] 1 FLR 349 (where Sir James Munby P stated that a child can have a home with separated parents living in different houses, and that it was proper to extend the statutory time limit, emphasising the importance of a “sensible” result in statutory interpretation), Re A & B (C & D) No.1 and No.2 [2015] EWHC 1059 and 2080 (Fam) (where Theis J made parental orders to separated commissioning parents), Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] EWFC 39; [2020] 2 FLR 1326(where Theis J interpreted the HFEA 2008 to permit a parental order despite the death of one commissioning parent, aligning with the legislation's underlying thrust), and Re A (a child: surrogacy: section 54 criteria) [2020] EWHC 1426 (Fam); [2021] 1 FLR 35 (where Keehan J held that separated biological parents can still be considered partners in an enduring family relationship for parental orders).

Finally, Cobb J referred to the speech of Baroness Hale in Re G (Children) [2006] 2 FLR 629, and, in particular, what she said at paragraph 35 about the meaning of a psychological parent:-

“the relationship which develops through the child demanding and the parent providing for the child’s needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting”.

In drawing together the threads of that case, Cobb J concluded, inter alia that the issue of whether people are living as partners in an enduring family relationship is a question of fact and degree, and a matter for the court to consider in every case.

In the case of Re YP (Adoption of an 18 year old) [2021] EWHC 3168, Arbuthnot J held that the word ‘home’ was not merely something physical but to be construed by reference to an emotional connection between the applicant and child. In that case the child had not lived in a house with the applicant in the preceding six months, and had indeed been in a different country.

Ms. King KC has also drawn my attention to the cases of W v Y [2021] EWFC 119 in which applicants who had never been in an intimate relationship were considered to have been partners in an enduring family relationship, Re P (A child) [2015] 1 FLR 1327 (McFarlane LJ) and Re Z (2024) EWFC 20 (Theis J) which involved applications for adoption by step-parents.