Platonic or elective co-parenting families: part 2

In this second article from the 2026 Resolution Modern Families Forum (Part 1 in the previous issue), Rachel Cooper considers developments in the law under the Adoption and Children Act 2002 and the Human Fertilisation and Embryology Act 2008, while Carrie-Anne Walker sets out advice for practitioners. We begin by looking at the key factors the court will need to see in order to recognise the relationship.

Living as partners in an enduring family relationship

Section 144(4)(b) of the Adoption and Children Act 2002 (ACA 2002) requires applicants to be “living as partners in an enduring family relationship”. Similarly, s54(2)(c) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) provides the applicants must be “two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other”. However, there is no statutory definition of what it means to be “partners in an enduring family relationship”. This was an intentional decision by Parliament, who considered the Family Division to be best placed to determine it on a case-by-case basis.

In her 2022 decision of X and Another  v B and Another  [2022] EWFC 129, Theis J made a parental order following a foreign surrogacy arrangement, which recognised two platonic and elective male co-parents (Mr X and Mr Y) as a child’s (G’s) legal parents. In this case, one of the co-parents (Mr X) was married to a woman (Mrs X) at the time of the parental order being made. Mr and Mrs X had been married for circa 36 years at the time of the making of the parental order. They had wanted to have children, but this had not been possible. Mr X was 61 years old at the time of the application and Mr Y was slightly younger. Around 15 years prior to the application, Mr X and Mrs X had briefly separated and during this time, Mr X and Mr Y briefly had an intimate relationship. After this ended, they remained friends and described having formed “a close and loving” but platonic bond. Mr X and Mr Y discussed having children as platonic co-parents and doing this through a surrogacy arrangement.

Professor Jadva’s research (discussed in the first part of this article) highlighted the importance of community support to psychological outcomes for parents and children in elective co-parenting relationships. In the case of Mr X and Mr Y, their arrangement was practically and emotionally supported by their wider family. Their gestational surrogate, Ms B, was Mr Y’s younger sister. The egg donor was Mr X’s niece, Ms C, whose egg was fertilised with Mr Y’s gametes. Mrs X, while not wishing to be the G’s legal parent, was supportive of the arrangement and Mr X co-parenting with Mr Y. G was born in the USA where Mr Y was living. Mr and Mrs X lived in the UK. Mr X and Mr Y had not obtained a pre-birth order and so only Mr Y was named on G’s US birth certificate. Following G’s birth, she spent time with both Mr Y and Mr X together and separately in their respective homes and in their respective jurisdictions. Mr Y was regarded as the main carer, so that Mr X could work and provide financially, but they co-parented, jointly making decisions about G’s day-to-day and longer-term care.

In X and Another v B and Anothe the court considered the three essential requirements for partners to be in an “enduring family relationship”:

• the applicants must be “living as partners”,
• they must be in a “family relationship” and
• that relationship must be “enduring”

Taking those elements in turn shows how the way that the family division has interpreted these requirements over time allows new and diverse family structures to be recognised.

 Living as partners

“Living as partners” does not require parties to be living together or to be living as intimate partners.

Whether the law required parties to an application under the ACA 2002 to be cohabiting was considered by Mr Justice Hedley in the context of an adoption application in T & M v OCC & C [2010] EWHC 964 (Fam). In T & M the applicants were lesbian co-parents in a committed relationship but who were living apart (but close by to each other) due to the emotional needs of one of their children. Hedley J noted that, in many partnerships, people live apart for work or other reasons, without imperilling the partnership (at [16]). In line with David Morgan’s theory of family (discussed in part one of this article) as something that “does”, rather than simply “is”, Hedley J considered that what was required to satisfy this part of the act was “an unambiguous intention to create and maintain family life”, coupled with a “factual matrix” consistent with such an intention (at [16], emphasis added). Family practice that “creates” and “maintains” family life is here considered central to the idea of “living as partners”.

In ECHR terms, the choice not to cohabit had not been considered fatal to the establishment of “family life” under Art 8 where children are involved in Kroon v The Netherlands [1995] 2 FCR 28.

Whether “living as partners” required parties to be in an intimate relationship was considered in an application made under the HFEA: Re X (A child: Foreign surrogacy) [2018] EWFC 15 / X & anor v B & anor [2022] EWFC 129. In this case the parties did not have a sexual relationship, but this was no barrier to their partnership being recognised. For the purposes of the HFEA, to be living as partners does not require the applicants to be in an intimate relationship, or not to be married to anyone else.

In a family relationship

 A number of decisions have looked at what it means to be “in a family relationship”, and the law has been interpreted to allow many family relationships to be recognised.

In Re DM and LK [2016] EWHC 270 (Fam) the applicants were in a relatively new relationship. They had made the decision to have children together but had not lived together ahead of their child’s birth due to their commitments to children from previous relationships. The court found that the applicants were in a family relationship, noting the following:

• Parties’ intentions. The parties were found to be in a committed relationship and intending to live together as soon as life permitted that.
• Commitment to the child. The parties’ family relationship was apparent through their joint commitment to their child.
• Family practice. The parties spent such time together as they were able to and remained in regular contact when they are not together.

The idea that a family relationship could be primarily characterised by commitment to a child was recognised again in Re A (Surrogacy: Section 54 criteria) [2020] EWHC 1426 (Fam), in which Keehan J summarised that “family relationship” is characterised not just by the commitment of two adults to each other, but also by their commitment to the child (born, in this case, as a result of a surrogacy arrangement).

In the context of elective or platonic co-parenting, the fact that a family relationship can be recognised by the joint commitment to a child is an important development.

The family relationship must be enduring

In the case of P and B v Z [2017] 2 FLR 168, one of the matters that Ms Justice Russell was required to consider was whether the “longevity” of the relationship was a factor in determining whether the relationship was “enduring”. In her judgment she included extracts from Hansard highlighting how Parliament had explicitly rejected the requirement for a relationship to have existed for any particular period of time to be considered as “enduring” and had considered that the Family Division was to be trusted to determine this on a case-by-case basis. In P and B the applicants (intended parents) had started their surrogacy journey at the same time as their relationship. They had their twins nine months later. In determining that this was an enduring family relationship the court looked to the choices the couple had made: to live together, to go through the surrogacy process together, and to raise their children together. All of these choices were found by the court to evidence an enduring family relationship.

Again, in the context of elective co-parenting, and as reflected in the research of Professor Jadva et al, a relationship could be long-standing, or it could have formed online and fairly swiftly proceeded to family planning. A relationship that was new at the time that family planning began can be recognised as enduring through the court looking to the practices of that family.

Returning to the decision in X and Another v B and Another

As set out above, Mr X and Mr Y were platonic co-parents seeking to be recognised as joint legal parents on G’s parental order.

In terms of whether Mr X and Mr Y were living as partners, Theis J described them as being in a “committed co-parenting” relationship. In reaching that conclusion, she noted all that Mr X and Mr Y had “done” together since G was born to co-parent. Theis J noted that their actions both before and since G’s birth had been very much a partnership, albeit they were largely living in separate households and in separate continents, which G nevertheless easily and readily moved between.

In concluding that Mr X and Mr Y were in a family relationship, Theis J relied on the following:

• They had known each other a number of years. Initially the relationship was intimate, which had settled into a committed and loving platonic relationship.
• In his report, the Family Court Advisor had noted that the applicants were a “family unit despite not having had the relationship history of family life together that is common to more conventional applications. [G] calls [Mr Y] ‘Daddy’ and [Mr X] ‘Papa’ (and his wife has a familiar name based on her first name), and they have been consistent and particular in ensuring they co-parent, which I expect [G] will have sensed, and so are likely to continue to do so.”

Finally, in terms of whether Mr X and Mr Y’s relationship was enduring, Theis J considered that it was on the basis that the relationship had been in existence for 15 years, albeit they had not lived together during that time and Mr X had remained living with his wife during the majority of that time. Although unconventional, Theis J recognised Mr X and Mr Y’s relationship as “long-established, loving and committed”.

This case demonstrates the court’s capacity to recognise new and diverse family structures. As Theis J concluded in her judgment:

“To an outsider the nature of the applicants’ relationship may be described as ‘unusual’ or ‘unconventional’ but the court must remain focussed on the statutory requirements. In my judgement, the applicants are ‘living as partners in an enduring family relationship’. They are in a long term committed relationship with each other that has been in existence for a number of years. Whilst it is right Mr X has remained married and living with his wife, the existence of that relationship has not detracted from the evidence the court has of the way Mr Y and Mr X operate as committed and loving partners, particularly in relation to the way they have made the decision to have a child, the steps they have taken to do that and what they have done following G’s birth. Mr X is arguably in two relationships that could meet this definition but there is no requirement for any relationship within this definition to be exclusive, although it is a very relevant factor the court needs to take into account in assessing the evidence.

… the applicants are very much a family unit even though they have not had the relationship history of family life together that is common to more conventional situations. They do not live together, the statute does not require that, but they are living as partners in a committed and loving relationship that has been established and maintained over a number of years. Its early focus was their relationship, more recently it has been their joint decision to have a child and the steps they have taken together to achieve that, what they have done following G’s birth and their plans for their relationship going forward, with G at the centre. Although unusual, this relationship established by Mr Y and Mr X co-exists with Mr and Mrs X’s marriage in the way described in the evidence. Mrs X is wholly supportive of the relationships that exist.”

Lavender marriages and cultural issues to watch out for

Alongside the growing number of websites and apps offering to assist people looking for a platonic co-parent, there are a number of apps and websites catering for individuals within specific religious groups who wish to have children, but often who are LGBTQ+ and who can only have a family within their communities if they are in an opposite-sex marriage. One of the most well-known of these apps is “Accord”.

In the case of Re X (A child – Foreign surrogacy) [2018] EWFC 15 the court granted a parental order in the circumstances of a platonic marriage, highlighting that a sexual relationship is not necessary for there to be a valid marriage. The parties’ relationship was deep and longstanding but one of them was gay, as the other had always known, and their marriage was therefore platonic and not romantic.

Where platonic co-parents come together, particularly under the cover of a legal or religious marriage, to have a family legitimately in the eyes of their community, this can create significant issues on separation. In such cases, real care needs to be taken by those instructed to ensure that what is put in writing in applications, statements or other documents will not place either party or the child(ren) at risk of harm from the wider community. Where prospective elective co-parents seek advice ahead of entering into such relationships, care and thought needs to be given to both how the child’s life story will be dealt with and what will happen on separation to protect both parents and any child(ren) from harm were their communities to become aware of the truth of their relationship. Research by Golombok, Jadva et al suggests that where children are born into modern family structures, their outcomes tend to be better where they are made aware of this early on, so that it does not come as a shock later. This is a matter that will need to be carefully considered by elective co-parents who are hiding their sexuality under the cover of a lavender marriage. When and how children will be told, and protected in the event of this information being shared, must be considered with care where possible, and if not, with legal advisors on separation to ensure that the child(ren)’s welfare is prioritised and protected.

Advice to practitioners

The research of Professor Jadva, discussed in part one of this article, highlights the importance for elective or platonic co-parents of careful planning ahead of starting their family. Prospective or potential co-parents must consider the quotidian issues for all parents, including who will be named on the child’s birth certificate and parental responsibility, the specific arrangements, education, religious and cultural upbringing and international travel (with either parent). However, they will likely need to consider other issues from the outset including:

1. Child arrangements – how the child’s time will be split between their parents and how will this develop over time?
2. Finances – how will the financial needs of the child be met? Will the co-parents have a joint account, and if so, what outgoings will be paid for that? How will extraordinary items – holidays, travel, uniforms, school fees (if applicable), healthcare etc be paid for? Co-parents who are both biologically connected to the child will be able to apply through the CMS, but other co-parents may not have this availability. How will the finances in those cases be dealt with?
3. Disagreements – how will any disagreements between them be managed?
4. Life story – how will the child’s life story be explained to the child and to wider family and friends?

While co-parenting agreements do not have the force of law, the process of creating these with trusted legal advisers may well assist co-parents to see whether they have the mutual respect and trust necessary to co-parent a child into the future. A well-drafted agreement, about which both parties have received advice, may well be an important and persuasive document should the family enter into difficulties, and is advisable in order to protect both parties and, of course, the child or children at the centre of their family relationship.

Rachel Cooper, Coram Chambers and Carrie-Anne Walker, Duncan Lewis

[email protected]

[email protected]