Scotland

Background

In this petition for adoption of an eight-year-old child, the petitioners were unmarried and not civil partners. They no longer lived in the same household since separating two years previously and co-parented the child and their adopted son. The child had been placed with the petitioners five years previously. In April 2021, a permanence order with authority to adopt was granted. Since the petitioners separated in July 2023, both children had a home with each of them. The children regarded each other as siblings. The eight-year-old child was thriving, wished to be adopted and had a secure relationship with both petitioners, whom she regarded as her parents.

Decision

Lady Tait granted a petition for adoption raised by a separated couple that no longer resided in the same household after finding that it was not necessary for a couple to reside together in order to create an enduring family relationship.

Lady Tait found that the adults, though neither married nor in a civil partnership, could still be treated as a family unit across two households. She concluded that the child was thriving, and both adults had made a lifelong commitment to her and her sibling. The court’s opinion highlighted that the purpose of the wording of the legislation was to ensure a child is adopted into a stable family unit. Lady Tait stressed the welfare of the child, rather than traditional definitions of family, must be the paramount consideration

Comments

Under current adoption rules, people looking to adopt together must be a relevant couple – defined as either being married or in a civil partnership or living together as if civil partners or spouses in an enduring family relationship. The couple were left with the choice of having to decide which of them would continue with the application as a single adopter.

In coming to its decision, the Court of Session took a broad and flexible approach to the wording of the legislation to ensure the value of a stable family unit in the child’s development could be promoted. Vitally, the court determined it was not necessary for partners to share the same property in order to be in a family relationship.

Circumstances

The case concerned X, a 17-year-old subject to a compulsory supervision order (CSO), and his younger sister, Y, now aged seven, who is also subject to a CSO and living in a pre-adoptive placement. In May 2025, a children’s hearing relating to X ordered regular, supervised direct contact between the siblings. However, in September 2025, a separate children’s hearing for Y ordered letterbox contact only (indirect communication), supervised by the social work department and effectively at Y’s discretion.

The legal framework

The case focused on the structure and duties within the Children’s Hearings (Scotland) Act 2011, which requires that:

a child’s welfare is the paramount consideration in decisions about them;

Overlaying this is the UNCRC (Incorporation) (Scotland) Act 2024, which obliges public authorities – including children’s hearings – to act compatibly with the United Nations Convention on the Rights of the Child (UNCRC).

Understanding why this case came to the Court of Session and Child X’s argument

X had Participation Individual (PI) status in the children’s hearing; however, PIs do not have the right of appeal to the sheriff court, and hence his avenue for appeal was accepted by the Inner House at an earlier hearing by judicial review. X challenged the September 2025 decision relating to Y on several grounds, arguing that it was:

unlawful and procedurally flawed;

The case therefore did not merely concern the merits of a contact determination; it raised systemic questions about coherence within the hearings framework.

He also sought clarity about whether the relevant Practice Direction 33 (paragraphs 58 and 59) within the hearings system correctly interpreted the law when dealing with sibling contact.

At its core, X’s case was about coherence and fairness. If one hearing concludes that direct contact is beneficial, how can another hearing effectively nullify that outcome without properly grappling with the tension?

Decision

Delivered by Lord Braid, the decision provides a valuable lens with which to examine the limits of the paramountcy principle under the Children’s Hearings (Scotland) Act 2011, particularly in light of the incorporation of the UNCRC into domestic law. This case highlights the difficulty the children’s hearing has in reconciling competing welfare claims where siblings are subject to separate proceedings.

The court found that:

the children’s hearing had failed to engage properly with the existence and effect of the earlier contact direction made in X’s case. It did not adequately address the practical and legal inconsistency created by restricting contact to letterbox only.

Remedy

Lord Braid issued a declarator that the decision of 18 September 2025 was unlawful. On considering whether to reduce that decision and consider making a direction on contact himself he gave reasoning as to why that is properly a decision of the children’s hearing and not for the court here. He referred to the fact that the matter was calling before the children’s hearing only the following week (5 March) where it would be reconsidered and concluded: ‘The declarator that I propose to issue is sufficient guidance that the review hearing approach the decision within the proper legal framework.’

Comments

This case exposed a structural feature of the children’s hearings system where decisions become more complex when they affect multiple children whose interests may diverge. Children’s hearings must treat as paramount the child’s welfare about which the hearing is concerned. There is no automatic mechanism ensuring harmony between parallel decisions.

The tension in this case arose precisely because each hearing was statutorily required to prioritise the welfare of the child before it. The children were siblings with a legally and emotionally significant relationship. X had been granted the status of PI having met the criteria in relation to Y. Yet the resulting two CSOs could not logically operate together. The Role of the PI has been highlighted and the rights attached, including the lack of appeal rights meaning this petition was the only avenue for appeal for X.

Incorporation of UNCRC into Scots Law

With the incorporation of the UNCRC into Scots law, children’s rights arguments now sit firmly within public law litigation. This case illustrates how rights-based reasoning interacts with long-standing welfare doctrines. Article 3 of the UNCRC requires the hearing to treat, as a primary consideration, the welfare of children who are not the subject of the hearing but who will be affected by the decision made. In coming to their decision, and recording it, this judgement says that the hearing must outline what considerations have been taken into account and how siblings’ Article 3 rights have been respected in the decision. Failure to do this will result in a hearings decision breaching section 6(1) of the UNCRC (Incorporation) (Scotland) Act 2024.

Considering the importance of this case for social work practice

This case asks us to consider sibling rights when a child’s plan is adoption. We should recognise children’s existing relationships and rights in relation to current siblings ensuring prospective adoptive families are prepared for children to have siblings and to be able to support siblings to maintain relationships. Where this has been a positive relationship for the child this should continue in their best interests, with their welfare paramount, and not denied in favour of the adoptive parents’ needs to close their family.

We need to be confident in our adopters that after adoption they will continue to support their children to maintain these important relationships, which enhance the child’s understanding of their life journey and support the integration of their identity. Sibling relationships are the ones we carry with us throughout our whole lives.