S (Foster Care or Placement for Adoption), Re [2026] EWCA Civ 47

[2026] EWCA Civ 47Case No CA-2025-002825
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING AT READING
HHJ Tolson KC
RG24C50094
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/02/2026
Before
LORD JUSTICE LEWISONLORD JUSTICE LEWISLORD JUSTICE COBB
Re S (Foster Care or Placement for Adoption)
Hearing Hearing date : 22 January 2026
Tom Wilson (who did not appear below) (instructed by Local Authority Solicitor) for the Appellant (Local Authority)
Damian Broadbent (who did not appear below) (instructed by Griffiths Robertson, Solicitors) for the First Respondent (Mother)
The Second Respondent (Father) was neither present nor represented on the appeal.
Mark Calway (instructed by Reeds Solicitors) for the Third Respondent (Child, by her Children’s Guardian)
Approved JudgmentThis judgment was handed down remotely at 10.30am on 5 February 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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Introduction

[1]This appeal concerns S, a girl now aged 4 years 8 months. She is the only child of the First Respondent (‘mother’) and Second Respondent (‘father’). She is the subject of a care order made under Part IV of the Children Act 1989 (‘CA 1989’) in favour of the Appellant local authority (‘the Local Authority’) and is currently in foster care. S is the Third Respondent on this appeal and is represented in this court, as she was in the court below, by her Children’s Guardian.[2]When making the care order in respect of S on 25 September 2025, HHJ Tolson KC (‘the Judge’) separately refused the Local Authority’s application for a placement order under section 21 of the Adoption and Children Act 2002 (‘ACA 2002’). It is against the refusal of the application for a placement order that the Local Authority now appeals.[3]No party in this appeal argues that the Judge was wrong to make the care order; neither parent now seeks for S to be placed in their care. The focus of this appeal is whether the Judge was wrong to reject the Local Authority’s application to seek authorisation to place S for adoption, where the only realistic alternative was a long-term placement in foster care.[4]Permission to appeal was granted by Peter Jackson LJ on 1 December 2025. When granting permission, Peter Jackson LJ observed that “the information before the Family Court may leave room for doubt about the position of the current foster carers” in relation to their wish to continue to care for S for the balance of her childhood. Peter Jackson LJ was keen to ensure that this court had “the best evidence about the position of the current local authority foster carers”. He accordingly gave a direction that the foster carers should:
“… inform the parties and the court in writing as to whether or not they have made a commitment to care for S throughout her childhood, if permitted to do so”
. The foster carers responded to this request, and I deal with this evidence below at §45-48 below.[5]For the purposes of this appeal, we have had the benefit of seeing a number of the key documents which were filed for the final hearing at first instance. We have been greatly assisted by counsel for the represented parties.[6]At the conclusion of the hearing of the appeal, we informed the parties that we would dismiss the appeal. I set out below my reasons for this decision.

Outline facts

[7]The mother and father, both now aged 25, separated when S was only a few months old; S remained in the care of the mother, and for a brief period had minimal contact with the father. The father has formed a new relationship and has a second child with his new partner; they all live together. The father currently has no relationship with S.[8]The mother had a neglectful childhood, and as an adult has suffered (and continues to suffer) from anxiety and depression; she is said to have “clinically significant” traits of autism, Attention Deficit Hyperactivity Disorder, and has an unstable personality disorder as a consequence of chronic cannabis abuse. She has been assessed as having an overall IQ score of 79. Her untreated mental health conditions sadly adversely impacted upon her ability to care for S, who was (in the finding of the court) over a period of time neglected by her.[9]When S was about 2 years old, the child protection services of the Local Authority became involved in the family’s life, concerned about the mother’s parenting of S. In May 2024, those concerns escalated S was observed by a support worker on a visit to the home with a bruise on her inner arm which was thought to be non-accidental in origin. It was this event which led to the launch of these public law proceedings. In fact, the Local Authority never pursued any finding about the aetiology of the bruising on S, nor was it alleged at the final hearing that S has ever been abused in any material way by her mother.[10]In the sixteen months between the commencement of these proceedings and the final hearing, S spent only four months in the care of her mother, within the closely supervised environment of a residential assessment. That residential placement ended following negative reports from the care staff about the mother’s ability to care for S. Thereafter, S moved to live with a maternal aunt and uncle (she had spent a short time with them previously); for some months, they were the focus of assessment as the likely long-term carers of S. Regrettably, that placement also ended when they indicated that they could not offer S the care which she needed. The maternal grandparents put themselves forward to care for S as Special Guardians, but their assessment was negative given their own history of poor parenting of the mother, and unrelated health issues. In May 2025, the mother successfully applied for an order to commission a further assessment of her ability to care for S, this time by an independent social worker. That assessment was conducted in the community, but was also negative.[11]In early-May 2025, pending the final hearing of the Local Authority’s application for a care order, S was placed in foster care, where she remains. At the time of the final hearing – and as far as I know to date – the mother has been seeing S twice per week; the current foster carers supervise one of those weekly visits at a weekend.[12]By reason (at least in part) of the various sequential family assessments, the final hearing of this application was not listed until its 70th week (as against the statutory target of 26 weeks) in late-September 2025. By this stage, the uncontested evidence before the court was that S was well-settled and emotionally secure within the home of her current foster carers. She is physically healthy but has delayed speech; at the time of the final hearing was awaiting an assessment in relation to autistic spectrum disorder.[13]Two working days before the final hearing, the Local Authority filed an application for a placement order; this had been foreshadowed by the final social work evidence in which adoption had been described as “the only realistic option to secure permanence” for S. As the final hearing commenced, the Local Authority’s case was that it would seek a closed adoptive placement for S, and that prior to placement the mother and S would have “a goodbye visit” followed by “yearly letterbox contact only”; the Local Authority contemplated the possibility of an annual exchange of photographs. After the social worker’s oral evidence on the first day of the hearing (judgment [14]), a revised final care plan was filed. That revised plan proposed an open adoption for S with direct (face-to-face) contact between S and her mother on one occasion per year. The Local Authority planned to offer only letterbox contact for the father.[14]Under the final care plan, the Local Authority proposed to search for an adoptive home for S for six to nine months. If they failed to identify an adoptive placement within that time, the authority would place S in long-term foster care; in that regard, they would “explore” the possibility of S remaining in her current foster home “subject to their approval” as long-term foster carers, and subject to “positive fostering matching”. It was the Local Authority’s understanding that the current foster carers considered that S would benefit from being raised by carers who are younger than themselves, though had “made it clear that they are willing to care for S until the long-term placement for her is found”. The Local Authority did not appear actively to support placement of S with her current carers. If S were to spend her childhood in foster care, the Local Authority proposed that contact between S and her mother should take place six times per year.[15]At the final hearing, the mother’s primary case was that S should return to her care; if that were not possible, the mother contended that S should remain with her current foster carers. The mother was adamantly against S’s adoption. The father, too, was opposed to adoption, and supported S remaining in her current foster home.[16]S’s Children’s Guardian acknowledged that the mother “loves [S] very much and … contact is positive”, but he could not support the mother’s bid to resume care of S and, at the final hearing, he recommended that S be placed for adoption. He was concerned at the level of instability and disruption experienced by S since the launch of care proceedings which he felt had had “a significant impact on her”; indeed, he expressed the view that it would be “very difficult”, even “catastrophic” (judgment [31]), for S if her current foster placement were to end. The Children’s Guardian actively supported post-adoption contact at the frequency of six times per annum come-what-may. If S were not to be placed for adoption (and he supported the Local Authority’s plan to search for only six to nine months), he was of the view that S's placement with the current carers should be “explored further” given that they had told him (in contrast, it seems, to what they had told the Local Authority – see §14 above) that “they would wish to be considered as long-term carers”:
“they would be willing to consider [S] remaining with them on a long-term foster basis”, even under a Special Guardianship Order. The Children’s Guardian was of the view that S has “a close and positive relationship with her carers”, who were providing her “with a sense of stability and certainty”
. He was of the view that as potential long-term carers they would ensure “ongoing direct contact with her mother and the ties to her birth family”.[17]That all said, the Children’s Guardian recognised in his report to the court that the benefits offered by S remaining in her current foster placement had: “… to be balanced alongside [S]’s need for a permanent placement as well as the impact of her remaining a child looked after, the processes and bureaucracy that this entails as well as the potential uncertainty of placement breakdown and further moves”.[18]At the conclusion of the final hearing on 25 September 2025 the Judge announced that he would grant the Local Authority’s application for a care order, but would refuse the application for a placement order. The final order was drawn up on that day, and includes this recital: “The court was of the view that local authority shall allow the child to have contact with her mother not less than once each fortnight, save that the local authority has a limited discretion to reduce the frequency to once each month in the event that the current foster carers cannot support more frequent contact”.

The Judge handed down his reasoned judgment in early November 2025.

Judgment

[20]In introducing his judgment, the Judge summarised his decision, orders, and essential reasoning. It is clear from this summary that the Judge’s conclusions were materially influenced by two findings, namely that: i) “[S] is best placed in her current foster placement in the long-term”; this led the Judge to rule that the “care plan of the local authority is not approved” (judgment [1c]), and that ii) It would be in S’s best interests for her to have continuing direct (face-to-face) contact with her mother “not less than once each fortnight”. He nonetheless gave the Local Authority limited discretion to reduce the frequency to once each month “in the event that the current foster carers cannot support more frequent contact” (judgment [1d]). Later in his judgment (judgment [38h]) he explained his rationale thus: “At the heart of this judgment is the strength of ties to [S]’s mother and, if not the strength of the tie to her current carers, then the beneficial effects of it”.[21]After the introductory section of the judgment, the Judge summarised the relevant background to the applications. In this section he described S’s current foster placement as follows:
“[14] It is … common ground that the foster carers have expressed an interest in caring for her in the long-term. The strength of that expression of interest is not common ground, the local authority simply stating that an expression has been made. The guardian, in my judgment investigating more closely, regards them as committed on the point. I specifically asked at an earlier hearing for the position of the current carers to be investigated carefully. Notwithstanding this, I believe the investigation of the local authority was perfunctory. … This adds to a sense in the case that whilst in my judgment the local authority has given the mother every chance to prove herself able to care for [S] it has not seriously considered the option of long-term fostering. Rather it has taken the approach that for a child of [S]’s age if the parents cannot care, and there is no viable wider family placement, then adoption it must be. I emphasise that my concern is not that the local authority has carefully weighed up [S]’s circumstances and come down against her current placement and in favour of adoption: it is that there is simply no discussion of the issue. Moreover, when the trial began there was no evidence as to the availability of adoptive placements for a child of [S]’s age whether locally or nationally and no real consideration of either the difficulties which might apply or the issue of openness within adoption.”
[22]The Judge went on to summarise the legal principles engaged in this application. He recorded that the ‘threshold criteria’ in section 31 CA 1989 had been conceded; he rightly acknowledged the need to consider S’s welfare by reference to the checklist to be found in section 1(4) of the ACA 2002. He recognised that the court could only dispense with parental consent for adoption:
“[17] … if it is satisfied that [S]’s welfare “requires” this (see sections 47 and 52(1)(b) of the 2002 Act). The word “requires” in this context has been held by the higher courts to carry the connotation of an imperative - in the phrase which is universally used nowadays that “nothing else will do.”
In this way English domestic law is aligned with the requirements of Article 8 of the European Convention on Human Rights 1950. A state-imposed adoption is a particularly radical interference in the right to respect for private and family life enjoyed by the mother, probably by the father and by [S] herself. It has to be justified by the concepts of necessity and proportionality”. (Emphasis by underlining added).[23]He continued: “[18] I have also been referred to decisions of the Court of Appeal and the High Court touching upon the relative merits of long-term foster care and adoption and in particular on the instability of the former. I should, I believe, also take heed of well-known statistics indicating the poor outcomes for many children in care. That said, I believe the right approach must be to look at all the evidence presented to me in this case on these issues. In particular, as counsel for the mother emphasises, I am not simply comparing and contrasting long-term foster care and adoption in principle. I am looking at the particular circumstances of this little girl, settled in a long-term foster placement and, moreover, in one where her carers have adopted children in the past. They have said that they do not wish to adopt [S], rather to care for her as a foster child but I am, I believe, entitled to look at their long-term commitment to children not genetically related to them”.[24]The Judge discussed the evidence relevant to the mother’s care of S, and its shortcomings; it is unnecessary to reproduce any of that in this judgment. He nonetheless acknowledged that: “[19] Everyone accepts that [the mother] manages her contacts with [S] well and the relationship between mother and child attracts praise from the professionals involved”.[25]He turned then to the Local Authority plan for adoption for S, observing (judgment [25]) that in the social worker’s final evidence “there is no consideration of long-term fostering” for S. The Judge recorded (judgment [27]) the social worker’s evidence that S had “formed a secure attachment to her female foster carer and is thriving in her nursery environment … her daily routine is structured and nurturing…”. The Judge repeated that the Local Authority had not specifically considered the position of the current foster carers as long-term carers for S (see judgment [18], reproduced at §23 above); he observed that the social worker had drawn the comparison between adoption and long-term foster care in principle, to which the Judge added: “I do not believe ... that [the social worker] looks at [S]’s own circumstances in that context” (judgment [28]). Reliant on the evidence of the Children’s Guardian (see §16 above), the Judge found (judgment [31]) that “S was a child who had experienced many moves, and a further move would be highly detrimental” to her.[26]The Judge considered the statistics relevant to family finding for adoption; he recorded the social work evidence which was to the effect that there were “nine times as many children waiting to be adopted as there are adopters” (judgment [33]).[27]He continued (judgment [34]):
“[The Children’s Guardian] also emphasised throughout his evidence how “finely balanced” he felt the issue was (the issue that is between long-term foster care with the current carers and open adoption).”
[28]The concluding section of the judgment headed ‘Analysis’ was structured by specific reference to the key components of section 1(3) CA 1989 and section 1(4) ACA 2002. Mr Wilson confirmed at the hearing that no material factor had been omitted. In this regard,

the Judge made the following important observations:

“[38a] Both [the social worker and the Children’s Guardian] emphasise that [S] is content where she is and has a close relationship with her current carers. The guardian emphasises the significance of the relationship [S] has with her mother and the potential consequences of the loss of both this relationship and that which the child has with her current carers. I believe the approach of both the local authority and the guardian is correct. I find that the loss of either relationship is highly likely to be detrimental to [S]. I find that the loss may be irreplaceable: this is what the guardian meant when he described the breakdown of the current placement as ‘catastrophic’.” “[38b] If the current placement were not available, long-term foster care threatens [S]’s needs only because of its instability. Adoption would be no panacea, but is more stable”. “[38g] [S] knows who her mother is, both emotionally and intellectually. It is no longer proposed that these links be severed (as opposed to the legal link). If they were, it would be a significant loss to [S]. The guardian expressly wishes to preserve them. Thus the effects of adoption would be (it is proposed) more limited than usual in practice if not in law. One major difficulty with that analysis is, however, that it will be difficult to achieve. I doubt the ability to find adopters who will tolerate direct contact with [S] – certainly at any rate which will preserve anything but the shell of [S]’s relationship with her mother. It is the effects “throughout life” which must be considered – but in this case the idea that [S] needs a ‘forever family’ going beyond her minority must be considered in a particular context. First, the idea is that she will not lose her birth family – at least entirely. Secondly, there are much stronger indications than usual that long-term foster carers – that is to say her current carers – will continue in their relationship with [S] beyond her minority. They are themselves adopters. I have no evidence, but it seems a reasonable assumption that it is their age which deters them from adopting [S]. They are 65 and 61.”
[29]Picking up on the statistical evidence (see §26 above) the Judge expressed his pessimism (he used the words “difficult” if not “impossible”, judgment at [38i]) that, given her age and circumstances, an adoptive home would be found for S which would tolerate face-to-face contact between S and her mother, particularly at the frequency envisaged. He continued: “[38i] The evidence is… that the carers have expressed a settled desire to care for her during her minority. I have no evidence that the local authority would set its face against that. I don’t believe it would. I do have the duty to consider the “permanence provisions” within the care plan (see section 31(3A) of the 1989 Act.) My views as to those, and my approval or otherwise, will in practice (and subject to any appeal) be of practical significance within the system. [39] In my judgment with welfare throughout life paramount, and by reference to the two checklists and the powers of the court, leads to the conclusion that [S] is better off where she is”.[30]The Judge went on to isolate the “key factors” which had informed his preference for long-term fostering for S compared with adoption. He referred to the fact that S is “happy and settled where she is” (judgment [40a]) and the “catastrophic” effect on her ability to trust adults and transfer affections (judgment [40b]) were she to be required to move. He raised specific concern about the “substantial loss” to S if her contact with her mother (with whom she is “closely bonded” – the social worker and Children’s Guardian had both referred to the “established relationship” between them) was confined to only one visit per year:
“[40c] In reality there can be no telling what the effects of this loss, this change, would be and they may well be detrimental”
. He continued: “[40d] … I doubt the adoption agency’s ability to provide an open adoption for [S]. The guardian has significant doubts that a placement will be found. I share them. I find myself, I am afraid, distrusting both the national figures and the local figures: they are produced late and they are sketchy, both running contrary to expectations based on other cases. Both the mother and the father have produced recent articles relating to the current crisis in adoption, but the national figures remain unlike anything I have seen before. I can accept that the local area (the adoption agency covers several local authorities) is better placed, but I have no information as to the suitability of what is a limited number of potential adoptive families. In any event the local authority would not consider a placement local to [S]’s family. I accept that the (un)likelihood of a placement is not a bar to a placement order, but it must be a relevant factor, especially in a child who, it is common ground, needs to settle (or rather remain settled) now. [40e] I doubt the local authority or adoption agency’s commitment to find an open placement and in particular I fear they might run with a placement which was not open but otherwise suitable. The shift in position by the local authority is too recent, the evidence inadequate and the chances that the importance of openness for [S] will not be realised in future planning too great”.[31]The Judge accepted that the contact between S and her mother would have to reduce from its current level, and set this at once per fortnight. He emphasised (judgment [42]) that S’s future contact with the mother should not destabilise the current placement (“the views of the foster carers will be of significance … if they cannot maintain fortnightly contact then it will have to reduce”), but (save for that consideration) there was no pressing need to reduce S’s contact with her mother; he was reassured that S had already settled so well with her current carers notwithstanding the high level of contact with the mother. He supported the proposal (which was “common ground” between the parties) that S should be reintroduced to her father.

Legal principles

[32]Before looking at the Grounds of Appeal and argument, I turn to the law and some of the relevant authorities to which our attention was drawn in this appeal. I have drawn together the submissions on the law under the following discrete heads:(a) Adoption formalities;(b) Adoption vs long-term fostering;(c) Adoption and contact;(d) Balance sheet exercise;(e) Relevance of the difficulties of finding an adoptive placement. (a) Adoption formalities: Where a local authority is satisfied that a child who is the subject of an application for a care order (such as S) “ought to be placed for adoption”, the authority is under a duty (i.e., it “must”) “apply to the court for a placement order” (section 22(2) of the ACA 2002). The application for such an order is ultimately determined by the court by reference to the subject child’s welfare “throughout” their life: section 1(2) ACA 2002. However, before considering the child’s welfare, the court has to be satisfied: i) That the child is the subject of a care order, or the threshold criteria in section 31(2) CA 1989 are met (section 21(2)(a)/(b) of the ACA 2002), and ii) That the parents consent to the child being placed for adoption, or that the parent’s consent “should be dispensed with” (section 21(3)(a)/(b) of the ACA 2002). As to (ii), the court cannot dispense with the consent of the parent unless the court is satisfied that “the welfare of the child requires the consent to be dispensed with” (section 52(1) of the ACA 2002). It is common ground that ‘requires’ in this context has (as the Judge himself referenced: see §22 above) a “connotation of the imperative”. This derives from the judgment of Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 (‘Re P’) at [125]: “’requires’ … is a word which was plainly chosen as best conveying, as in our judgment it does, the essence of the Strasbourg jurisprudence. And viewed from that perspective ‘requires’ does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable”. (b) Adoption vs long-term fostering: Where, as here, placement for adoption is being considered, both domestic law and Article 8 of the European Convention on Human Rights (‘ECHR’) require a high degree of justification before such an outcome can be endorsed as being “necessary” and proportionate (per ECHR, especially Article 8) or “required” (section 52(1)(b) ACA 20020): see Lord Wilson in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, sub nom Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075 at [34].[35]The contrasting characteristics of adoption compared to long-term fostering are well-rehearsed in existing caselaw. A useful review of those characteristics can be found in Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948; [2025] 1 FLR 815 (‘Re D-S’) at [21]; I do not regard it as necessary to reproduce that paragraph in full here. The core difference between adoption and fostering is one of legal status and identity for the child; adoption provides the strongest legal security, vesting parental responsibility in the adopters, in contrast to fostering which offers a significantly different legal status for the child, for whom parental responsibility remains shared between the local authority which holds the care order (which maintains enduring oversight and monitoring of the placement) and the birth parents. It is well-recognised that the legal stability offered by adoption begets emotional security for the child, and promotes the child’s sense of permanence in their forever home. It has often been said that adoption offers a greater sense of ‘belonging’ for the child (see for example Black LJ as she then was in Re V (Long-term Fostering or Adoption) [2014] 1 FLR 670 at [96]), which is achieved by the mutual commitment of adoptive parents and child.[36](c) Adoption and contact: Post-adoption direct contact between the birth family (parents and/or siblings) and the adopted child is now much more common than it was even a decade ago; it is now embraced as a model for “the modern world” of adoption (see below). The ACA 2002 provides that at the point of making the placement order, contact orders may be made: see section 26(2)(b) and section 27 (as amended)). At the later stage of the adoption order itself, the court is required again to consider “whether there should be arrangements for allowing any person contact with the child: section 46(6) ACA 2002, and/or at that time or later, can make a contact order under section 51A of ACA 2002. The scope for making contact orders, or something less than orders (i.e., recitals reflecting endorsement of contact plans: see for example Re S (Placement[37]Turning back to Re S (see §36 above),Sir Andrew McFarlane P spoke of the “clear shift” over recent years in the direction of travel “in understanding the approach to be taken to the issue of post-adoption contact” (Re S at [71]). He observed (albeit that the issue in that case was sibling contact but the principles are the same in relation to parental contact):
“[44]… In some cases the need to preserve contact will be a preference, in others it may be essential. In all cases it will be necessary to take account of the impact on family finding of a care plan that includes ongoing contact and/or proposals for a s 26 order for contact. There will be some cases where the priority to be given to preserving the sibling relationship will be such that the court should make a contact order, notwithstanding that to do so may make the task of finding an adoptive family more challenging”
. And later: “[74]… it is the responsibility of the court to make orders for contact if they are required to meet the child’s welfare needs, as determined under ACA 2002, s 1. The position of potential adopters should not … obviate the court’s responsibility to set the template for contact at the placement order stage. [75] The duty imposed on the court under ACA 2002, s 27(4) to consider the proposed arrangements for contact is an important one. It applies to every application for a placement order, whether or not a formal application for contact has been made. In contrast to all other elements of the care plan for a child who is to be placed for adoption, Parliament has given the courts this responsibility to consider the contact arrangements and jurisdiction to make orders where to do so is in the best interests of the subject child”.[38]I mention here, as Sir Andrew McFarlane P did himself in Re S at [21], the important report of the President’s Public Law Working Group report (‘Best Practice in Adoption: November 2024) which recommended: “…a tailormade approach to the issue of contact for each adopted child which includes and promotes face-to-face contact with important individuals in that child’s life if it can be safely achieved and is in the child’s best interests”(para.42).[39]Finally, it is relevant to note in the context of this case a further observation of Sir Andrew McFarlane P from Re S as follows: “[32] … there is a distinction to be drawn between those cases where continuing direct sibling contact is considered to be necessary for the child’s future welfare, and cases where the achievement of an adoptive home is the overarching goal, with future sibling contact being desirable as opposed to a prerequisite. In the former circumstances (as in Re P and Re R and C) the court has ‘a responsibility’ to make a s 26 contact order”.[40](d) Balance sheet exercise: The caselaw to which we were taken also rightly emphasises the importance of the Judge undertaking a balancing exercise in which “each option for the child is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives”; each option can then be compared, side by side, against the competing option or options (see McFarlane LJ (as he then was) in Re G (Care Proceedings: Welfare Evaluation) [2014] 1 FLR 670, at [54]) (‘Re G’).[41]In view of the Judge’s specific remarks in his judgment at [17] (reproduced at §22 above, in particular see the passage underlined), Mr Wilson drew our attention to the further judgment of McFarlane LJ in Re W (Adoption: Approach to Long-Term Welfare) [2017] 2 FLR 31, in which he cautioned against an overly-abbreviated reliance on the phrase ‘nothing else will do’ in this context; at [68] he said this: “The phrase is meaningless, and potentially dangerous, if it is applied as some free-standing, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase ‘nothing else will do’ is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the European Convention and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002, s 1). The phrase ‘nothing else will do’ is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see: Re B-S (Children) (Adoption[42]While I do not intend, by my comments which follow, to diminish the importance of these earlier judicial pronouncements, a failure to set out the options in a side-by-side balance sheet analysis in the manner described above will not pave the route towards certain success on appeal. The appellate court must always assess whether a judge actually failed to balance the factors in such a way as to lead them into error. Without a balance sheet this is a much more challenging task; in this appeal we were required to study the Judge’s individual pronouncements within the judgment with considerable care. Mr Wilson mounted an impressive challenge on Ground 1, but his arguments were founded on what I regarded as “a narrow textual analysis” of parts of the judgment, and not on the judgment as a whole as Mr Broadbent argued; had we adopted the narrow approach we may well have been encouraged to conclude that the Judge had indeed misdirected himself: Piglowska v. Piglowski [1999] UKHL 27; [1999] 1 WLR 1360. Moreover, as Baker LJ recently observed in Re N (Refusal of Placement Order) [2023] 2 FLR 642 at [33]: “… although such a style [i.e., setting out the advantages and disadvantages in a balance sheet] might be prudent as a method of ensuring and demonstrating that all relevant matters have been identified and considered, it is not an imperative. As McFarlane LJ observed in Re F (A Child) (International Relocation: Welfare Analysis) [2015] EWCA Civ 882, [2017] 1 FLR 979 (at para [52]), while a balance sheet may be ‘of assistance’ to judges, ‘its use should be no more than an aide memoire of the key factors and how they match up against each other … a route to judgment and not a substitution for the judgment itself’”.[43](e) Relevance of the difficulties of finding a placement: Given the acknowledged challenges of finding an adoptive placement for S given her age and the plan for post-adoption parental contact, coupled with the Judge’s pessimism in relation to family-finding generally, we were reminded of the comments of Hughes LJ (as he then was) in Re T (Placement Order) [2008] 1 FLR 172. Hughes LJ had addressed this very point in this way (at [17]): “… even if there is a real possibility that an adoptive placement will not be found, it by no means follows that adoption is not in the best interests of the child. Since a child cannot usually be placed without a placement order, to say otherwise would be to deprive the child of the chance of what has been determined to be the best possible outcome for him. Mere uncertainty as to whether adoption will actually follow is not a reason for not making a placement order. Indeed, s 22(2)(a), referred to above, clearly contemplates that a placement order may be applied for before it is known whether there will be a care order or not. Plainly a placement order can be, and perhaps usually should be, made at the same time as a care order is made on a plan for adoption which the judge approves, even though at that stage a good deal of investigation and preparation is needed before the child can actually be placed, and it is not known whether a suitable family will be found or not”.[44]This passage was referenced by Peter Jackson LJ in Re D-S at [32]; he confirmed that the court’s primary task is to take a decision as to whether adoption or fostering is right for the child as a matter of principle. In order to do that, it will not usually have to have evidence about the availability of placements. However, he added, materially for present purposes, that:
“There may be cases at the margins where specific evidence will be necessary, examples being where the plan is for the adoption of a much older child” (Emphasis by underlining added).
This has some resonance on the instant facts., It is to be noted that the child in Re D-S was 6 months old when the proceedings commenced and 11 months old when the placement order was made. As I have earlier mentioned, S will be 5 years old in just four months time.

Views of the current foster carers

[45]In accordance with Peter Jackson LJ’s direction (see §4 above) the up-to-date views of the current foster carers were obtained by the Local Authority and these were placed before this Court on the appeal.[46]I reproduce their comments (contained in an e-mail dated 10 December 2025) in full:
“We have been foster carers for over three years, providing respite and short-term care. We have been caring for [S] since May 2025, originally on a short-term basis while awaiting the outcome of court proceedings. During her time with us, [S] has settled extremely well. She has become a valued and much-loved part of our family. She is happy, safe, and fully included in all aspects of our family life. In September 2025, the court made the decision that [S] should move into long-term foster care. At that time, we were approached and asked whether we would consider being her long-term carers. After thoughtful discussions as a family, we agreed that we would be willing to care for [S] for as long as we are able, potentially throughout her entire childhood. We were also asked whether we would consider adoption. Although we have adopted two children previously, due to our ages, I am 60 and my husband is 65 years old, we do not feel we can make the lifelong commitment that adoption requires. We want to ensure that [S] has the best long-term stability possible. If she were able to be adopted and have the chance of a forever family who could offer her a permanent home throughout her life, we believe this could be in her best interests, particularly given her young age. However, if the final (sic.) remains that [S] should stay in long-term foster care, we are fully prepared and happy to continue caring for her in a long-term placement. We are fit, healthy, and young at heart, and we remain committed to providing [S] with a loving, stable, and nurturing home for as long as we are able.” (Emphasis by underlining added).
[47]It is to be noted (see the underlined word in the extract quoted above) that the foster carers used the verb “could” when describing adoption in the context of S’s best interests, not “would”.[48]The Local Authority has confirmed that before the current carers can be formally approved to care long-term for S, their fostering status would need to change. There is a panel scheduled for 10 February 2026 at which they can present their bid for a change of status. If their status is changed, them the ‘matching’ process could commence.

Grounds of Appeal

[49]The Grounds of Appeal are as follows: i) Ground 1: The Judge was wrong in that he failed to undertake any, or any adequate, comparative analysis of the advantages and disadvantages of long-term foster care and adoption. ii) Ground 2: The Judge was wrong to have concluded that the current foster placement was available as a long-term placement and/or was ‘at least highly likely’ to continue meeting S’s needs throughout the remaining 14 years of her minority and into adulthood. iii) Ground 3: The Judge erred in failing properly to recognise, and/or properly to weigh in the balance, the advantages of an open adoptive placement for S. iv) Ground 4: The Judge was wrong to have concluded that the local authority / adoption agency: a) Was unlikely to find a suitable adoptive placement for S; b) Was not committed to finding an open adoptive placement for S. Further, and in any event, the Judge erred in placing undue weight on these conclusions in his welfare analysis. v) Ground 5: The Judge was wrong in that he failed to give adequate reasons for departing from the professional recommendations of the Local Authority and the Guardian that adoption was the outcome which most appropriately met S’s welfare best interests.

The arguments on appeal

[50]The Local Authority contends that, when refusing the application for a placement order, the Judge erred for the reasons set out in the Grounds of Appeal. The Local Authority is particularly critical of his failure to undertake any kind of balance-sheet analysis of the options for S; Mr Wilson contends that the Judge gave little if any indication in his judgment of having evaluated properly the pros and cons of the competing options for S, having been blinded (my word, not his) by the apparent benefits of her remaining where she is. It is argued that the Judge significantly over-stated the ability and/or preparedness of S’s foster carers to provide a permanent home for her, materially and wrongly ascribing to them the status of “long-term” foster carers (it is agreed that they are approved as short-term carers only). The Judge was unduly pessimistic about the prospects of finding an adoptive placement which would entertain face-to-face contact between S and her mother (and possibly her father), and unfair in his assessment that the Local Authority was not (or would not be) committed to making a proper search.[51]The mother invites this court to dismiss the appeal; she contends that there is sufficient within the judgment, when it is read as a whole, on which it can be seen that the Judge has conducted a proper analysis of the advantages and disadvantages of the options presented to him. She maintains that the Judge was not wrong in his ultimate conclusion that S’s best interests are plainly served by her remaining with her current carers – an outcome which is confirmed to be viable having regard to their recent statement. The father has not advanced any position on the appeal.[52]At the final hearing before the Judge, the Children’s Guardian had supported the making of the placement order. However on this appeal, and particularly in light of the recently collected views of the current foster carers, the Children’s Guardian has changed his position and now argues that the appeal should be dismissed. In short, he supports S remaining with her current carers for the long-term.

Discussion and analysis

[53]By September 2025, when these applications were before the court, permanence planning for S in a substitute family had become complex. Several factors rendered this task problematic: S was nearly 4½ years old, and thus older than many children placed for adoption; she had experienced a disrupted early life, having suffered proven neglect in the care of her mother; she had moved several times (altogether at least five) since her removal from her mother’s care in May 2024, and this had been “traumatising” to her (as described in the Local Authority’s final care plan); she had a need for emotional and legal stability; she enjoyed a positive ongoing relationship with her mother, who was for reasons not challenged in this appeal unable to care for her; she was settled and happy in her current short-term foster placement (as the Judge so found: judgment [40a])), where she is said by the social worker to be securely attached to her foster mother and “thriving” in her nursery.[54]The realistic permanent placement options for S were therefore adoption or long-term fostering. There were, unsurprisingly, pros and cons of both options. The formal applications before the court offered a stark choice – either the Judge approved the application for a placement order for adoption on the basis of the local authority care plan, or he refused it on the basis that S’s future would be better served by foster care. There was a great deal of uncertainty in both options. The Judge identified a third, and ultimately his preferred, outcome; long-term foster care, in the placement with her current carers. If S were to remain in the care of her current carers, this of course removed at least one significant imponderable in care planning for her, but it could not be assured as an outcome given that the carers were not yet approved by the Local Authority to care for her as foster carers in the long term. There was no clear legal route to this outcome. The Judge recognised the limits of his statutory powers to require the Local Authority to make S’s current placement available to her the long-term (see judgment [38i]), but he also appeared to derive some comfort from the fact that he had “no evidence that the local authority would set its face against that. I don’t believe it would” (ibid.).[55]I accept Mr Wilson’s primary submission that given the binary choice, it was at the very least highly desirable that the Judge should have undertaken a side-by-side comparative analysis of the competing options, identifying the factors relevant to an adoption application as against long-term fostering, especially long-term fostering by the current foster carers. In this regard, Mr Wilson appropriately relied on the comments in the judgment of McFarlane LJ in Re G at [54] (see §40 above). Mr Wilson further submitted that the Judge’s reliance on the well-worn phrase ‘nothing else will do’ in his judgment represented no more than a “meaningless” hyperlink to outcome, signalling an overly-attenuated consideration of the wide range of issues engaged in this case (see Re W quoted at §41 above).[56]The Judge did not perform the side-by-side balance sheet analysis. That is clear. It would have been far better had he done so. It seems to me that his failure to do so may at least in part have been attributable to the fact that the Local Authority had only very shortly before the final hearing issued its application for a placement order, and its plan for the adoption of S was still evolving in material ways as the evidence in the final hearing unfolded. Moreover, the Local Authority evidence was in itself defective (as the Judge pointed out) as the social worker himself had ostensibly considered “no other option than to recommend a care plan of adoption” for S (judgment [24]) and had not given proper consideration to the merits of long-term fostering (judgment [25]).[57]The Judge’s task was made no easier by the lack of consistency in the reporting by the social worker and separately by the Children’s Guardian of the views and aspirations of S’s current foster carers in relation to their commitment (or otherwise) to offer S a long-term home (see §21 above).[58]However, overall, the failure to generate such a balance sheet did not in my view fatally undermine the Judge’s ultimate decision. I am satisfied that, as Mr Broadbent has argued, it is possible to identify within the judgment as a whole the Judge’s consideration of the competing factors relevant to each of the options, and this legitimately enabled him to express the view that placement for adoption should be preferred only when ‘nothing else will do’. This takes me to Ground 1.[59]I repeat that in this case the Judge’s analysis and reasoning would have been considerably more structured, and altogether clearer, had he exercised the balance sheet model. The simple but effective discipline of a side-by-side analysis would have, I suggest, assisted the Judge to clearer thinking, and would have rendered his judgment less vulnerable to challenge; this did not need to be done in tabular form, but may have been helpful if it had been so presented. Notwithstanding this deficiency of the judgment, it is possible to identify within it proper reasons for his conclusions which sufficiently cogently justify his decision. I am satisfied that he made adequate reference to the arguments for and against the outcomes proposed (adoption vs long-term foster care) to enable us, having read the judgment as a whole, to follow his reasoning with sufficient confidence: see also D J & C Withers (Farms) Ltd v Ambic Equipment Ltd (reported together with English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409) at [89].[60]The Judge recognised that he was required to undertake a comparative analysis; he recorded that he had considered the authorities presented to him which had shone a light on “… the relative merits of long-term foster care and adoption” (judgment [18]). He specifically referenced the “box analysis” of the social worker (judgment [28]) (i.e., the side-by-side analysis, where the options are set out in tabular form), and his discussion of this evidence reveals that he had considered the table carefully. For instance, he identified what the ‘box’ did not contain (i.e., any “mention [of] the current carers”) (judgment [28]), and that it had considered long-term fostering “in principle only” (ibid.). He reviewed at some length in his judgment (judgment [30]-[34]) the Children’s Guardian’s detailed analysis of the pros and cons of the options before the court, reproducing into the judgment lengthy excerpts of the Children’s Guardian’s report.[61]In his consideration of matters which promoted adoption as the better outcome for S, the Judge identified S’s “need for stability” (judgment [26]), specifically referring to the fact that adoption is “more stable” than foster care (judgment [38b]). Those factors were, in the Judge’s analysis, legitimately balanced by the desirability that she should be subjected to “no further moves” (judgment [26]). Mr Wilson was critical of the Judge’s failure to reference in the section of his judgment which he devoted to her ‘particular needs’ (section 1(4)(b) ACA 2002), S’s ‘needs’ for legal and emotional stability throughout her life; however, it is clear that the Judge did acknowledge elsewhere that adoption uniquely provides a “forever family” for a child (judgment [34]), and he accepted that he was looking (in the adoption context, as he was obliged to do (per section 1(2) ACA 2002)) at the effects of placement “throughout life” (judgment [38] (intro) and [38g]).[62]Given the agreement that the mother would continue to have some level of contact with S come-what-may, he observed that “the effects of adoption” in this case (i.e., by which it is clear that he meant in this context a closed adoption where there would be a complete severance of relationship with the birth family) “would be… more limited than usual in practice if not in law” (judgment [38g]).[63]On the other hand, the Judge did identify as downsides of adoption: i) The “potential consequences of the loss of both this relationship [with the mother] and that which the child has with her current carers” (judgment [38a]) if she were adopted. Although capable of better expression, he was entitled, it seems to me, to refer to “the loss” of the “relationship” with the mother by adoption; the once per year post-adoption contact contemplated by the Local Authority would do little more than maintain some limited sense of identity for S, but it would not maintain a mother/daughter “relationship” as such; ii) The “increased risk of [adoption] placement breakdown” because of her age (judgment [38f]).[64]When considering foster care, the Judge focused his attention on S remaining with her current foster carers; he reposed reasonable optimism in the prospects of S remaining in this placement (see my discussion on Ground 2). He plainly favoured foster care so as to ensure that S could maintain a real and meaningful relationship with her mother by a high frequency of contact. In this case, the Judge was concerned that the Local Authority had considered long-term fostering “in principle” only (judgment [18], [28], [34]), and had not considered S’s specific situation given the evidence (albeit somewhat unclear) of the preparedness of the current foster carers to continue to care for S (see below). This view was informed by the evidence (which was “not seriously challenged”: judgment [31]) of the Children’s Guardian that it would be “catastrophic” (judgment [31], [38a], [40b]) for S to have to move; the social worker had spoken of S’s “feelings of instability or rejection … confusion, anxiety and difficulty trusting adults” as a result of her multiple moves while under the interim care order. The final care plan referred to the moves which S had experienced since the care proceedings had commenced as “traumatising” to her.[65]The Judge’s view that S’s best interests would be served by her remaining with her current carers was further informed, at least to some extent, by his expressed pessimism about the prospects that the Local Authority would find an adoptive home for S which would accept ongoing face-to-face contact between S and her mother, in the timeframe which they had identified for themselves or at all; the Local Authority describe the Judge’s conclusions as “unfounded” in this regard. I deal with this further below in my discussion of Ground 4.[66]That all said, he made clear in his judgment that he had taken account of the relatively insecure legal status of long-term fostering compared with adoption. Specifically: i) He spoke of the “relative merits” of the options and “in particular on the instability of [foster care]” (judgment [18]); he returned to this theme at [34] when he again referred to the “instability of foster care (in principle)” (by ‘in principle’ I assume that the Judge meant ‘if there is no current placement to consider’); at (judgment [38b]) he said that “long-term foster care threatens [S]’s needs only because of its instability”. ii) He recognised and gave voice to the “poor outcomes for children in care” (judgment [18]); and iii) He acknowledged the “background norm” of the threat of harm (by placement breakdown) in fostering and adoptive placements (judgment [38c]).[67]Overall, I remind myself that the balance sheet is an “aide memoire”, and/or a “route to judgment” (see again Re N at §42 above); it is not the judgment itself. In this case, having studied the judgment as a whole, I have concluded that the Judge adequately covered the relevant pros and cons of the options before him.[68]I turn to Ground 2. At the Issues Resolution Hearing, three weeks before the final hearing, the Judge had directed the parties to obtain the views of S’s current carers, and specifically whether they would be willing to care for S on a long term basis under a care order or under adoption. This plainly flagged early judicial thinking as to possible outcomes for S. The Children’s Guardian and social worker spoke to the foster carers; in the Judge’s view, the former investigated this “more closely” than the latter whose researches were found to be “perfunctory” (judgment [14]).[69]From the evidence presented to him, the Judge assumed that the current foster carers would be “highly likely” to go on meeting S’s needs “given the guardian’s view of their commitment to her, which I accept as accurate” (judgment [30b]). The Judge later said that “there are much stronger indications than usual that long-term foster carers – that is to say her current carers – will continue in their relationship with [S] beyond her minority” (judgment [38g]). The Judge’s characterisation of the foster carers as “long-term” was wrong; they are approved as short-term carers only. He added: “The evidence is, however, that the carers have expressed a settled desire to care for her during her minority” (judgment [38i]). Mr Wilson contends, with justification, that the Judge was not entitled to reach these conclusions on the evidence presented at the final hearing. I further accept Mr Wilson’s argument that the Judge expressed a higher degree of confidence in the long-term potential for the current placement than the evidence at the hearing, taken as a whole, truly permitted. However, the more recent researches undertaken pursuant to Peter Jackson LJ’s direction have revealed that the foster carers are in fact prepared to offer a long-term home for S (“we would be willing to care for [S] for as long as we are able, potentially throughout her entire childhood”: see §46 above) – a view aligning with the earlier report of the Children’s Guardian. While that placement cannot be confirmed as necessarily “available” for S given the outstanding requirement that they obtain local authority approval as long-term carers (§48 above), the recently filed evidence effectively defuses Ground 2.[70]Although the Local Authority had only very late in the day advocated open adoption for S, by Ground 3 they criticise the Judge for insufficiently considering its “advantages”. At the time of the final hearing, S and her mother were seeing each other twice per week. The social worker’s evidence was that the mother showed “love and affection” to S and was “warm and attentive” to her in contact; the Children’s Guardian had described contact as “positive”. The Judge observed: “Everyone accepts that she manages her contacts with [S] well and the relationship between mother and child attracts praise from the professionals involved” (judgment [19]). The benefit to S of maintaining a proper relationship with her mother through contact was central to the Judge’s overall decision, and he reflected the significance of this relationship, in accordance with his statutory obligation in section 1(4)(f) ACA 2002, in the analysis section of his judgment.[71]The Judge described the prospect of S losing her relationship with her mother as “highly likely to be detrimental to [S]. I find that the loss may be irreplaceable” (judgment [38a]); he explained at [38h] that “at the heart of this judgment is the strength of ties to [S]’s mother and, if not the strength of the tie to her current carers, then the beneficial effects of it”. The Judge therefore set out his optimal contact ‘template’ in the final order (see §36 above); this reflected what I assess as the “necessary” arrangements for future contact (rather than the merely “desirable”): see Re S at [32] quoted at §39 above. The Local Authority has not sought in this appeal to argue that this contact template is flawed. Mr Wilson rightly acknowledges that the quality and frequency of the current contact were obviously relevant matters to be factored into the overall welfare analysis when selecting the type of placement for S. Having determined that regular (i.e., fortnightly) contact was the right level of contact, the Judge was entitled (indeed, it may be thought, bound) to conclude that finding an adoptive home for S which would accept this level of contact would – even in the “modern world” of increased post-adoption contact (see §36 above) – be too formidable a task.[72]Ground 4 raises two linked points: First, the Local Authority’s ability to find a placement for S, given all the circumstances, and secondly the commitment of the Local Authority to do so. It is said that the Judge was unduly pessimistic in relation to the first point, and unfair in his assessment of the second. I do not agree.[73]The Judge addressed the Children’s Guardian’s evidence that contact at 6 times per year would be “optimum” (judgment [33]), and went on to find that it was “highly unlikely” that adopters would accept even that level of contact (ibid. at [33]); he observed: “I doubt the ability to find adopters who will tolerate direct contact with [S] – certainly at any rate which will preserve anything but the shell of [S]’s relationship with her mother” (judgment [38g]). This proposed frequency was far less than the frequency contemplated by the Judge’s ‘template’ provision. Although the Judge identified characteristics of S which “improve her prospects of finding adopters” (judgment [38f]), his overall pessimism was informed by the Local Authority’s evidence as to the shortage of suitable adoptive placements, a view shared by the Children’s Guardian (judgment [33] and [40d]).[74]Notwithstanding the “clear shift” over recent years towards post-adoption contact (see again Re S at §37 above), the Judge was entitled in my view to be doubtful of the chances of finding a placement which would accept contact at the level proposed by the Judge, particularly given the statistics offered by the Team Manager of the regional adoption agency in her statement filed only part-way through the hearing. It seems to me that in his comment: “I accept that the (un)likelihood of a placement is not a bar to a placement order, but it must be a relevant factor, especially in a child who, it is common ground, needs to settle (or rather remain settled) now” (judgment [40d]), the Judge was explicitly taking proper account of the guidance offered by Hughes LJ in Re T (see above).[75]As to the second point (the Judge’s negative assessment of the Local Authority’s commitment to find an open adoptive placement), the Judge’s view was justified, it seems to me, by virtue of the fact that: i) The authority’s plan prior to the start of the hearing had been to find a closed adoption placement for S under the placement order; only on the second day of the hearing did it change its tune – prompting the Judge’s remark “it has the feel of forensic necessity about it” (judgment [14]); ii) The final evidence of the Local Authority showed that it had “… not seriously considered the option of long-term fostering” for S (judgment [14]); and iii) The Local Authority had known nothing of the circumstances in which the current foster carers had adopted their children; this showed that “careful thinking on the relative merits of adoption against long-term foster care has been lacking” (judgment [18]).[76]As to Ground 5, I am satisfied that the Judge accurately reflected the range of professional views in his judgment; he quoted widely from the Children’s Guardian’s report, and provided a number of extracts from the social worker’s final evidence. The Judge had found the Local Authority’s researches into the current position of the foster carers “perfunctory”, and had explicitly found that it had provided an unbalanced review of the options (i.e., not considering long-term fostering either adequately or at all). The Judge would plainly have rejected the original recommendation of the Local Authority that S be subject to a closed adoption (letterbox contact with the mother only); its change of position part-way through the hearing (to recommend a form of open adoption) redeemed its professional stance to some degree. The Judge fairly reflected the view of the Children’s Guardian that this was a finely balanced decision; indeed, so delicately balanced that by the time of the appeal the Children’s Guardian’s recommendation had tilted onto the other side.

Conclusion

[77]This finely balanced case turned, as most such cases do, on its individual facts. The Judge was right to view S’s situation as unique, and he explicitly focused on “the particular circumstances of this little girl” (judgment [18], and see also [28]). While the case law reviewed above is illuminating and of considerable assistance in setting the framework in which the Judge’s decision was to be made, and this appeal must be considered, the Judge’s welfare assessment had to be informed by the evidence particular to S. Having balanced up those factors adequately (as I have found that he did), albeit not in the recommended format, I am satisfied that the Judge was not wrong to have preferred long-term fostering for S over adoption. As it turns out, he was further entitled to conclude that the current carers would want to, and would probably be able to, care for S for the long-term, and that her interests would be best served if this could be achieved. The Judge cannot thus be faulted for concluding that S’s welfare did not ‘require’ the dispensation of her parents’ consent to her placement for adoption (section 52(1) ACA 2002: see §33 above).[78]As Peter Jackson LJ observed in Re D-S (citation above): “[14] In many cases about children there are a number of possible plans. One judge might choose one, another judge might choose another. So long as the judge takes the correct legal approach, explains his or her thinking, and makes a decision that will work for the child, that is fine. We will not allow an appeal just because we might think that another possible plan would have been better. We can only step in if we have been shown that the judge did not approach the decision correctly or explain it properly, or if the judge’s chosen plan will not work”.[79]Therefore, and for the reasons which I have set out in this judgment, I do not consider that the Judge fell into error in refusing the application for a placement order. As we informed the parties at the conclusion of the hearing, I conclude that it is right to dismiss this appeal.[80]I agree.[81]I also agree.

Order

Contact) [2025] EWCA Civ 823; [2026] 1 FLR 48 (‘Re S’) at [80]), has been widely discussed by this Court in recent years: see Re P (citation above, see especially [151]); Re B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29; [2019] 2 FLR 117 (see in particular Sir Andrew McFarlane P at [59]/[61]/[62]: “the court’s order may well … set the tone for future contact” [62]), and Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302; [2025] 2 FLR 68 (‘Re R and C’) (see in particular Baker LJ at [6], and his comprehensive and authoritative review of the caselaw at [22]-[40]; and later [65]: “open adoption … is now embraced as a model in what the President has called the modern world”). In Re R and C,Baker LJ at [39] (quoting from a speech delivered by Sir Andrew McFarlane P in May 2024) separately referred to the “duty” on the judge on the placement order application to: “… set the template for contact going forward. Where continuing contact in some form is ordered at that stage, this will be an important “known known” about the child to be taken on board by any potential adopters with whom placement may be considered”. Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, sub nom Re B-S (Adoption: Application of s 47(5)) [2014] 1 FLR 1035”.

Cited in 1 later judgment