Families don’t look like they did 50 years ago. Divorced parents, single-parent families, same sex parents, grandparents as parents all help form today’s collage of a modern family. The statistics produced annually by the ONS give a snapshot of the trends in families in the the UK  – fewer couples are marrying, an increasing number of children are being born outside of marriage and there is an increase in divorce.

It is now more common than ever for there to be modern family make-ups. Unfortunately, the current law means that some parents might have to take some additional steps to make sure that their family has everything they need, and creating their families require a little bit of help.

It is no surprise that the family courts are increasingly engaging with modern family set-ups, in fact not only engaging with but sometimes creating them. Whether that be from single parent families to the blended family unit, it is apprent that the nuclear family does not dominate like it used to. We are living with change as we move with the times to embrace the evolving modern family structure that takes on all different shapes and sizes. And that is all very exciting! With the excitement comes challenge. The new family units, formed through alternative arrangements such as sperm donation, surrogacy or co-parenting bring different issues to light in respect of family law.

Mr Justice Cobb has recently designed a legally creative approach that allowed for a child to have the same family unit as her brother in Re E (Adoption by One Person) [2021] EWFC 45.

The background to the case was as follows:

1. The case concerned Ms A and Ms B who, between 2011 and 2020, were in a fully committed, living and exclusive relationship.

2. During this time they decided to start a family. Ms A was the biological mother of their first child, a son, and Ms B subsequently adopted him. Ms B then gave birth to their second child, a daughter, but the parents had separated before Ms A could adopt her.

3. Ms A now applies for an adoption order but the Adoption and Children Act 2002 states that: An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted.” The Act also states 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.” Finally, the Act tells us 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.”

Cobb J concluded as follows:

i) When interpreting legislative provisions, the court must have regard to the underlying purpose of the specific requirement within the Act, and ensure the interpretation does not ‘go against the grain’ of the intentions of Parliament and creates a ‘sensible’ result; this can include some consideration of child welfare, but child welfare will not be paramount;

ii) In interpreting the phrase “living as partners in an enduring family relationship” it is reasonable to have regard to the caselaw generated under section 54 HFEA 2008 [including the judgment of Munby P referred to above], given (a) the similar legal test; and (b) that the legal, personal, emotional, psychological, and social consequences of adoption orders and parental orders are so similar;

iii) The issue of whether people are living as partners in an enduring family relationship is a question of fact and degree, and it is a matter for the court to consider in every case;

iv) It is not necessary for the ‘partners’ to be sharing the same property in order to be living in a family relationship; what is required is an unambiguous intention to create and maintain family life and a factual matrix which is consistent with that intention;

v) Section 144 ACA 2002 [the interpretation section] should be read in a way which gives effect to Article 8, i.e., which does not create unnecessary or disproportionate interference with the right to respect the family life of all involved;

vi) There is no rule that requires that intimacy, conjugality, or co-habitation be a component of an enduring family relationship. These are not requirements for married applicants, nor are they requirements in relation to parental orders under the HFEA 2008 which requires applicants for that order to be “living as partners in an enduring family relationship.”

vii) In the facts of this case, ‘family life’ exists between the Applicant, Ms A, and the child, Emma; a very notable aspect of that family life is the care and arrangements which Ms A and Ms B had previously made for Theo – much can be deduced about the relationships from this;

viii) Integrated family relationships have continued for all four members of this family notwithstanding the separation of Ms A and Ms B;

ix) The law permits me to conclude that Ms A and Ms B are living as partners in an enduring family relationship.”

This might just be one of those judgments where it was about doing the right thing rather than doing things right; we have to be prepared to find solutions to problems when families are wanting to be placed on an equal footing to those families that were designed by the more traditional route.

At Unit Chambers we have a team of specialist family law barristers who are experienced in advising on all issues that arise with this new kind of family structure.

We want to continue to support

  • Adoptive parents
  • Blended families
  • Co-parents
  • Foster parents
  • Grandparents
  • LGBT+ parents
  • Step parents
  • Surrogates and commissioning parents

In our experience, many individuals and couples enter into arrangements that will shape their family in a certain way without understanding the full legal implications. We are here to help and support these families. If you wish to get in touch please contact [email protected]

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