L (A Child: Placement and Contact Orders), Re

Neutral Citation Number: [2026] EWCA Civ 639 Case No: CA-2026-000273 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE FAMILY COURT AT GLOUCESTER Recorder Calway BS25C50118 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20 May 2026 Before : LORD JUSTICE BEAN (Vice-President of the Court of Appeal (Civil Division)) LADY JUSTICE KING And LORD JUSTICE PETER JACKSON – – – – – – – – – – – – – – – – – – – – – L (A Child: Placement and Contact Orders) – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – David Crowley (instructed by Gloucestershire County Council) for the Appellant Local Authority Sarah Fincham (instructed by WSP Solicitors) for the Respondent Mother The Respondent Father represented himself Hannah Ahmadi (instructed by Child Care LLP) for the Respondent Child by their Children’s Guardian Hearing date : 14 May 2026 – – – – – – – – – – – – – – – – – – – – – Approved Judgment This judgment was handed down remotely at 10.30am on 20 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ……………………….. Lord Justice Peter Jackson : Summary

1. In September 2025, an application for a placement order was made in respect of A, a little girl who was then aged 14 months and had been in foster case since she was 11 months old. On 20 January 2026, by which time she was 1½, Recorder Calway dismissed the application and made a care order. The local authority, supported by A’s Children’s Guardian, now appeals. A’s parents oppose the appeal.

2. The recorder also made care orders in relation to A’s four brothers, the youngest then being aged 7 and the eldest

13. Those children were removed from the family home at the same time as A, and they live apart from her in two separate foster homes with a plan for long-term foster care. There is no appeal by the parents from those orders.

3. For the reasons given in this judgment, I would allow the local authority’s appeal and I would make a placement order for A, accompanied by an order for her to continue to have a level of contact with her brothers until the making of an adoption order. I would approve the local authority’s care plan for contact between A and her parents during this period, but I would not make an order in that regard.

4. The recorder judged that the importance for A of the sibling and parental bonds outweighed the benefits of adoption. He refused to make a placement order because he was not satisfied that these important relationships would be retained if an order was made. As I shall explain later, there are a number of difficulties with the process by which this conclusion was reached, and with the order that resulted. They arose from the recorder’s endorsement of an outcome that none of the parties had promoted and that the court had consequently not investigated or analysed, leading to an order that contains no workable plan for A’s future. This situation arose because no discernible weight was given to A’s most pressing need, which was to have a home of her own for her childhood and beyond, and because the recorder underestimated his own power to secure the benefits of sibling contact for her. Those matters take the decision outside the zone of appellate deference and require us to remake it. Nothing could be gained, and much would be lost through delay, if we were to remit the matter to the Family Court, and there is fortunately no need for that. Relying on the recorder’s unchallenged findings of fact, it can be clearly seen that a placement order, in combination with a contact order, is the only outcome that can provide for A’s welfare throughout her life. Background

5. The parents have been together since 2009 and the boys were born in 2012, 2014, 2017 and 2018. The father has been diagnosed with ADHD and the two younger boys have autistic spectrum disorder.

6. The significant history begins in August 2022, when police attended a road traffic accident to find the parents and four children in a car with cannabis and £30,000 worth of cocaine. (In March 2026, the father was convicted of drugs offences arising from this, and he is currently serving a three-year sentence.) In November 2022, following a number of call-outs for domestic abuse incidents, the father was arrested for assaulting the mother. He then repeatedly breached bail conditions by contacting her and the children. The mother was considered to lack insight.

7. Against this background, in March 2023 the local authority issued the first of two sets of care proceedings. The mother and children entered a refuge, returning to the family home in August 2023. The local authority sought the removal of the children, but that was not approved by the court. There continued to be difficulties in keeping the father away and the mother became pregnant with A, who was born in June 2024. Proceedings in her case were issued on the same day. Despite misgivings on the part of the local authority, the family reunited in August 2024 and there followed a period of relative progress. On 31 January 2025, Her Honour Judge Cope accordingly made a 6-month supervision order by agreement. Although she considered it finely balanced, she found that the parents had worked with professionals with the aim of demonstrating change. She however warned them that they were “in the early days” and that the father needed to maintain abstinence from drugs.

8. Unfortunately, the matter was back in court just ten weeks later. On 3 April 2025, the father was arrested for animal cruelty after beating the family dog with a hose pipe. (His trial is set for August 2026.) On 14 April 2025, he was arrested again, on this occasion for assault on the mother. By this time there were concerns about the children’s presentation, their attendance at school, and the parents’ engagement with professionals.

9. On 15 April 2025, the local authority issued a second set of care proceedings and interim care orders were made. On 20 May 2025, after a two-day contested hearing before District Judge Tait, the children were removed to foster care. The mother sought permission to appeal on the basis that she and the father had separated, but that was refused by Judge Cope on 23 May 2025. The parents thereafter presented for further assessment as a couple.

10. Although the family was now split between four homes, contact took place twice weekly, with an extra session each week for A and her parents in view of her age. A consistent theme was the strong emotional warmth and affection between parents and children, though some difficulties were also noticed. The evidence

11. An assessment of the family was carried out by a clinical psychologist, Dr Bryn Williams. In a notably clear report dated 27 June 2025 he identified a history of chronic domestic violence, paternal substance misuse, neglect and poor home conditions, inconsistent and unsafe parental care, repeated separations and instability, unaddressed trauma, parental ADHD, and two children with ASD: “In summary, the children’s difficulties are not isolated incidents but rather the direct, cumulative outcome of a deeply chaotic, unsafe, and emotionally neglectful early childhood, compounded by unaddressed trauma and parental challenges.”

12. In relation to A, Dr Williams wrote (I use an initial for confidentiality in this and all subsequent citations): “In summary, A’s psychological formulation points to a healthy and developing infant with an inherent capacity for secure attachment, currently thriving in a stable foster care environment. However, her early life has been marked by significant pre-and postnatal stressors, parental instability, and frequent transitions. The primary psychological concern for A revolves around ensuring the sustainability of a safe, consistent, and emotionally responsive environment that will support the ongoing development of her secure attachment and mitigate the potential long-term impacts of her early traumatic experiences. … As an infant, A’s well-being is entirely dependent on the stability, responsiveness, and emotional availability of her primary caregivers. Whilst no specific psychological or developmental concerns were noted for A, her early life has been marked by parental stress, severe family disruption, and periods of separation from her father. These factors could potentially impact her foundational attachment and early developmental milestones, as a secure attachment is crucial for infant development. … From birth, A has been subject to significant safeguarding involvement. … This high level of social care involvement is a primary psychological concern, as the instability and court proceedings can impact a child's early attachment and overall well-being.”

13. Ms Gemma McConnell was the children’s social worker between January 2023 and September 2025. She developed a good working relationship with the family, and her extensive written evidence shows how well she came to know them. She carried out repeated assessments of the parents individually and as a couple, wrote a comprehensive ‘Together and Apart’ sibling attachment assessment in July 2025, and made a number of court statements, culminating in a final statement in September 2025. That statement concluded with an analysis of the options for the children. For the boys, she set out the advantages and disadvantages of a return to parents and of long-term foster care, and she firmly favoured the latter course. In A’s case, her equally firm opinion was that long-term foster care was not appropriate: “For A, however, long-term foster care has been carefully considered and discounted. At just one year old, A requires permanence that is both legal and relational to support her healthy development into childhood and beyond. Long-term foster care, while able to provide stability in the short to medium term, cannot give her the lifelong sense of belonging and family identity that adoption can provide. Foster placements are not guaranteed into adulthood and carry a higher risk of disruption over time. By contrast, adoption would provide A with a permanent legal and emotional family base. At her age, A is at a critical stage of attachment formation. Research indicates that very young children are especially vulnerable to the long-term effects of instability, but conversely have the greatest potential to form secure, resilient attachments in the context of early adoption (Selwyn et al., 2015; Dozier & Rutter, 2008). Remaining in foster care would prolong uncertainty at a stage where permanence is developmentally urgent. Adoption offers A the best opportunity for secure attachment, emotional stability and identity development. Sibling relationships remain important for A’s identity and will continue to be supported through structured family time arrangements with her brothers. This balances her need for adoption with the importance of preserving safe and meaningful connections to her birth family.”

14. Ms McConnell then refocused the analysis from the perspective of adoption: “Adoption for A Adoption is being sought for A because, at one year old, she is at a critical stage of attachment formation and requires legal and relational permanence to ensure her lifelong security and wellbeing. Foster care would provide stability in the short term, but it would not guarantee A the permanence and family identity that adoption can offer. Research consistently shows that timely adoption provides very young children with the best opportunity to form secure attachments, resilience, and stability into adulthood (Selwyn et al., 2015; Dozier & Rutter, 2008). Factors in Favour: • A is only one year old and at a critical stage of attachment development. Adoption provides her with lifelong legal and relational permanence. • Adoption offers the best opportunity for A to develop a secure base and consistent caregiving, which are essential for her long-term emotional and psychological wellbeing. • Early adoption maximises her opportunity to form stable attachments with adoptive carers, supporting resilience and reducing the risk of later placement breakdown. • Research indicates that timely adoption for children of A’s age is strongly associated with improved outcomes in terms of stability, educational attainment, and emotional security (Selwyn et al., 2015). • Adoption secures A a permanent family identity, something foster care cannot guarantee. Factors Against: • Adoption severs A’s legal ties to her birth family. • It reduces her day-to-day opportunities to have ongoing physical contact with her siblings, who will remain in foster care. • Her identity needs will need careful consideration to ensure she has safe, structured links to her birth family to make sense of her early life. Support that can be Provided: • A’s adoptive carers would have access to post-adoption support, including an allocated social worker, therapeutic parenting training, and access to the Adoption Support Fund for specialist therapeutic interventions if required. • Sibling and family time can be supported through a combination of direct and indirect contact. The Local Authority proposes biannual contact: one direct session per year with her parents and siblings, and one indirect exchange (letters/photos) to maintain safe links with her birth family. • Identity work will be central to her adoptive placement, ensuring she grows up with an understanding of her family of origin and safe ongoing sibling relationships.”

15. Unlike many care plans, the final plan for A, dated 17 December 2025, was a thoughtful and informative document, updating the plan in the light of the recent final hearing: “The long-term plan of adoption will meet both A’s current and future needs by providing her with a permanent, legally secure family who can offer consistent care throughout her childhood. Adoption will allow her to form lasting attachments, experience the stability she has so far lacked, and grow up in an environment where her physical, emotional and educational needs are prioritised. The plan also ensures that her identity and sibling connections are respected, through life story work and continued family time with her brothers. This combination of permanence, stability and identity work provides A with the best opportunity to recover from past harm and to thrive into adulthood. … The arrangements for family time for A have been carefully considered in order to balance her need for permanence and stability with her need to maintain safe and meaningful connections with her birth family. A is a very young child and therefore requires a stable adoptive placement where she can form secure attachments without disruption. At the same time, it is important that she retains a sense of identity and connection to her birth parents and siblings.”

16. The plans for all of the children proposed a staged reduction in family time with parents and siblings to monthly, and that has now happened. In A’s case, a further reduction was proposed after adoption: “If adoption is granted for A, it is proposed that A will have direct family time with her parents, once per year. This will usually take place in a supervised setting for a limited duration and will be supported by the Local Authority to ensure that it remains a safe and positive experience for A. In addition, there will be one indirect letterbox family time exchange per year, enabling the parents to send letters, cards and photographs to A. This arrangement is intended to provide ongoing safe links with her parents while minimising disruption to her adoptive placement. A’s sibling relationships are recognised as central to her developing identity. It is therefore proposed that she will have sibling family time with her brothers a minimum of four times per year. These sessions will ideally take place around significant family occasions such as birthdays, Christmas or school holidays, and will be supported and facilitated by foster carers or adopters to ensure consistency and emotional safety for all of the children.” The greater frequency of post-adoption sibling contact reflected further consideration and input from the Guardian.

17. Equally, the Guardian’s final analysis was a model of its kind. Applying the welfare checklist to A’s situation, it contained these passages: “66. (b) The children’s needs: A is 16 months old. She is White British. A needs carers that can meet her emotional and physical needs for the duration of her childhood. A is a healthy beautiful happy little girl, she is bright and meeting all her developmental milestones. A is very clingy to her foster carer, she likes to be constantly held and reassured. A will need carers that understand the possible impact of her early trauma on her emotional development and how this may impact on her further in the future.

67. A needs to be given the opportunity to grow up in a family who can meet her cultural, emotional and physical needs for the duration of her childhood. …

71. (d) Their age, sex, background, and any characteristics of theirs which the court considers relevant: A is 16 months old. It is imperative that decisions are made in respect of her future care plan without delay. The older A becomes, the harder it will become for her to make the transition to permanent carers since she will find the separation from her foster carer increasingly difficult. …

75. (f) The relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant and the likelihood of any such relationship continuing and the value to the children of it doing so: … A is already placed in a separate foster placement to her siblings, and she has been in her current placement since April. She has adjusted to the separation from her family, but she does very much enjoy spending time with her siblings and parents. She receives loving attention from her parents and her siblings. She is happy during family time. There is a close sibling bond between A and her brothers. There is no doubt that it will be a significant loss for A and her siblings to be permanently separated from each other. As A grows older and she understands her situation more, she may feel a great sense of loss being separated from her family. A will need help in understanding why these decisions were made and it will be very important for her to continue to see her siblings regularly and for the sibling relationship to be maintained as it is a lasting relationship that exceeds any parental relationship.

76. The plan is for A to have ongoing direct contact with her siblings and that this should take place four times a year for 60-90 minutes. This will enable A to maintain her relationship with her siblings as she grows up which will help her with her sense of identity. It will be important that this family time is regularly reviewed so that it meets A’s needs.

77. As stated previously, A knows her parents and she enjoys spending time with them. However, she is very young, and she will be able to adjust to not seeing her parents.

78. I have considered whether A should have direct contact with her parents if the plan for adoption is agreed. The Public Law working group published its report in November 2024 where recommendations were made in respect of reviewing adoption. There has also been recent research undertaken by Professor Elsbeth Neil at the University of East Anglia that considers post adoption contact. The research states that direct contact should be considered post adoption. An open approach to adoption can avoid children in later life building up an idealised version of their birth family. One of the key findings of this research was that face-to-face contact was not found to get in the way of the development of the relationship between the adoptive parents and the child where the placement is supported by the parents. Any direct contact needs to be considered on a case-by-case basis, and it would need to be carefully managed by professionals.

79. It is the plan of the Local Authority for A to have one direct contact for 90 minutes and one indirect letterbox contact with her parents if the plan of adoption is agreed. A will need to settle into her adoptive placement and direct contact will be considered after the Adoption Order is made. It will be important that the direct contact does not destabilise A’s placement and it will be important that her parents are supportive of her placement.

80. A’s family time with her siblings and parents should be gradually reduced once a placement is identified. A final visit then will take place with her parents. The parents will need to be supported as this will be a very emotional time for them.

81. Family time will also be reviewed at A’s child in care reviews until an adoption order is made which will consider her best interests.”

18. I have recorded all of this written evidence because it so directly addressed the issue that has led to this appeal, because it remained unchanged during the trial, and because it is essential to our remaking of the decision. The final hearing

19. This took place over six days between 28 November and 5 December 2025. The recorder had 2000 pages of written evidence, and he heard oral evidence from eleven witnesses, including Ms McConnell, Dr Williams, the parents and the Guardian. All parties were represented. It was not disputed that the threshold was crossed.

20. The hearing was dominated by the question of whether the five children could safely be returned to their parents. The parents’ case was that this should happen under a supervision order, either immediately or after a short further period of assessment. The mother offered to separate from the father, who was due to stand trial for the drug offences in January, if that would allow the children to return. No party contended that long-term foster care would be an acceptable outcome for A. The recorder reserved his decision. The recorder’s decision

21. In a written judgment handed down on 20 January 2026, the recorder noted a number of positives in relation to the parents, particularly the mother, but he doubted that they could remain separate for long. He found that they both minimised what he described as their real problems. He considered Ms McConnell to be an impressive witness and he accepted her evidence about the parents’ ability to change. He agreed with her conclusion that no safe system could be devised for any of the children to return home at that time, or following any further assessment. He accordingly made care orders for the boys on the basis of the updated care plans.

22. In doing so, the recorder carried out a welfare checklist analysis in respect of all of the children under the Children Act 1989 (‘CA 1989’) and then of A alone under the Adoption and Children Act 2002 (‘ACA 2002’).

23. Under the CA 1989 heading of ‘physical, emotional and educational needs’, the recorder said that “the children clearly need these met” and that they had the particular needs set out by Dr Williams. He described them as a close sibling group and said that “this is an important part of my considerations as to their emotional needs.” As to age, sex, background and other characteristics, he referred to a pen picture he had drawn earlier. That took in the first paragraph of Dr Williams’ advice, recorded in the first paragraph cited at [12] above, but he omitted the second half of that paragraph, which referred to “the primary psychological concern” which related to A’s need for “a safe, consistent, and emotionally responsive environment that will support the ongoing development of her secure attachment…”

24. The recorder then addressed the ACA 2002 checklist in this passage: “163. In respect of A, I now look at the other criteria under the Adoption and Children Act 2002 which have not been replicated above.

164. The likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person

165. I take the view that in A’s case this would be significant. Despite her young age, she is well bonded with her parents and her siblings. Her loss of them and them of her would be a very significant detriment to them all. It is a very significant factor in my view. I also take into account the quality of the contact between all family members. The plan is for A to be the only child amongst this sibling group to be adopted. She would be in a very different position to her bothers and would lose the connection to family that they would retain.

166. The relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including— (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs, (iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

167. There is a strong bond between the parents and A and between the boys and their sister. They do not want her to move outside of the family.

168. This could be ameliorated by contact being directed and the court recognises that adopters are being encouraged to consider open adoptions with more face to face contact happening than would have been routinely directed in the past. However, whatever order I make at this hearing, [it] could not guarantee that such contact would take place.”

25. The recorder then moved to make his decision about return to the parents. He described the other realistic options as being “a care order (for the children) and/or a care and placement order for A.” Having made a care order in respect of the boys, he returned to consider A: “183. In respect of A, I have another option to consider. Having decided that it is too risky for any of the children to live with the parents at this time, I am drawn to make a care order in A’s case for the reasons set out above. Should I go on to make a placement order?

184. I have given this very anxious consideration. I have considered the benefits of adoptions as set out in the evidence of the local authority and the Guardian. It would provide her with a forever family and stability. As a long term fostered child she would remain in the care system and be subject to all the bureaucracy and reviews with no certainty that her carers would remain the same.

185. However, she would cease to be member of her birth family. There would be no guarantee of contact with her siblings and parents. The bonds are significant (as pointed out above) and will be at real risk of being lost if an adoption plan is endorsed.

186. I have thought very carefully about these options for A. It’s been a difficult and finely balanced decision, but one I am clear about.

187. A’s interest in remaining a member of her family outweighs the benefits of a placement order in my view. I am unable to be satisfied that her important relationships with her parents and siblings would be retained if a placement order was made.

188. I will refuse the application for a placement order in A’s case and make a care order. I judge that the importance of the sibling and family bonds outweigh in her case the benefits of adoption.

189. That is my judgement.” The appeal

26. The grounds of appeal are that:

1. The conclusion reached by the judge was not a case that was actively being put or explored as part of the trial.

2. The judge failed to properly analyse the advantages and disadvantages of remaining in foster care as opposed to the permanence offered by adoption.

3. The judge failed to carry out an analysis of whether the sibling and family bonds could be secured by way of post adoption contact orders.

4. In rejecting the local authority’s care plan for A, the judge was wrong not to invite the local authority to provide an amended care plan. On 9 March 2026, I granted permission to appeal. A hearing was listed for mid-April, but was adjourned to allow more time for the mother to obtain representation. By the time of the hearing, the father was in custody, but he was able to attend the hearing remotely and he spoke briefly to inform the court that he hoped to be released on a tag in October 2026, and of his upcoming trial in August, referred to above.

27. On behalf of the local authority, trial counsel Mr David Crowley developed the grounds of appeal as being interconnected. The fact that no party suggested this outcome for A (ground 1) meant that it was not examined in the evidence or analysed in the judgment (ground 2) which, coupled with insufficient attention to mitigation by means of a contact order (ground 3), has left A without a care plan (ground 4). The local authority invites us to substitute a placement order and stands behind its proposal that it should be accompanied by a contact order.

28. For the Children’s Guardian, Ms Hannah Ahmadi supported the submissions of the local authority. She said that the Guardian strongly supported the plan for sibling contact, but had some reservations about a contact order, particularly in respect of the parents (and especially the father), because of the imperative of finding an adoptive placement, but that she did not ultimately oppose the making of an order.

29. The mother’s case was well argued by Ms Sarah Fincham, who was instructed at a late stage. Responding to the grounds of appeal, she pointed out that the psychological assessment and sibling attachment assessment did not preclude long-term foster care for A. The fact that the recorder did not set out a formal balancing exercise does not mean that he did not carry out such an exercise before coming to his decision, particularly as he had undertaken to do just that in his legal self-direction. He carried out welfare checklist assessments and he explicitly referred to the advantages of adoption at [184]. Once he had ruled out placement with family and rejected adoption, the only other option was long-term foster care. He was not obliged to deal with every argument and he did sufficient to show the basis on which he had acted: Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [115]. In his self-direction he referred to the power to make a contact order at [69], but he concluded that contact could not be guaranteed. He was entitled to place weight on the lifelong impact on A, as one of five siblings, of being treated differently to her brothers. This might be detrimental to A’s sense of self-worth. It will be open to the parents to seek the discharge of the boys’ care orders and to have them returned to their care in the future, but that this option would not exist for A if she was adopted. Further, the father’s imprisonment gives the mother a chance to ensure that she remains separate from him, so that her reunification with her children is not beyond the realms of possibility. Ms Fincham therefore invited us to dismiss the appeal, but otherwise to remit the application for a placement order for a full rehearing. The legal context

30. When making his important welfare decisions for these children, the recorder was exercising statutory powers under CA 1989 and ACA 2002. As no decision relating to adoption arose in the boys’ case, the first statute applied to them, but in A’s case the matter fell within s. 1 ACA 2002, which provides: “1 Considerations applying to the exercise of powers (1) Subsections (2) to (4) apply whenever a court or adoption agency is coming to a decision relating to the adoption of a child. (2) The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. (3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare. (4) The court or adoption agency must have regard to the following matters (among others)— (a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding), (b) the child’s particular needs, (c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person, (d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant, (e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering, (f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including— (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs, (iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child. (5) In placing a child for adoption, an adoption agency in Wales must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background. (6) In coming to a decision relating to the adoption of a child, a court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so. (7) In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes— (a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order), (b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act, but does not include coming to a decision about granting leave in any other circumstances. (8-9) …”

31. In a case where the court is considering applications for both a care order and a placement order, the welfare analysis for that child takes place under this section, because the orders that might be made include a placement order: ss.1(1) and 1(7)(a) ACA 2002. In such a case, recourse to s.1 CA 1989 is inappropriate and may lead to error.

32. This approach has been established and approved in several decisions of this court: Re C (A Child) [2013] EWCA Civ 1257 per Sir Andrew McFarlane P at [29-31]; Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 40 per Sir Andrew McFarlane P at [33-42]; and Re J (Care Plan for Adoption) [2024] EWCA Civ 265, per Baker LJ at [24]. For a fuller explanation, I would draw attention to this passage in Re B: “40. … Whilst, when making a placement for adoption order under ACA 2002, s 21, a court will normally also make a care order, the placement application, and not the CA 1989, s 31 application, is the primary application before the court. It is not merely unnecessary for the court to consider the care application on its own, and before turning to the placement order application, it is wrong to do so and may readily lead to the error in the choice of statutory welfare requirements into which the judge fell.

41. ACA 2002, s 21(2) stipulates that the court may not make a placement order unless: a) the child is subject to a care order, b) the court is satisfied that the conditions in CA 1989, s 31(2) are met, or c) the child has no parent or guardian. The need for the s 31 threshold to be crossed is therefore expressly incorporated within the ACA 2002 process, and there is no need for there to be a separate evaluation by hiving off the CA 1989, s 31 application and dealing with this first.

42. Where a court has reached the stage of determining that a placement for adoption order should be made, and parental consent should be dispensed with, the grounds for making a care order will be plainly made out. As a placement for adoption order under ACA 2002, s 21 gives parental authority to the local authority (as an adoption agency) [ACA 2002, s 25(2)] the question may be asked whether it is necessary also to make a care order at that time. The established practice in the Family Court of making a care order alongside a placement order is, in my view, sound. Where a care order is made at the same time as a placement for adoption order, the care order will, in effect, be dormant and the dominant provision will be the placement order. Where, however, a placement order is not converted into an adoption order, but is subsequently revoked under ACA 2002, s 24… it is likely to be of benefit to the child and the orderly conduct of any future proceedings for the care order to be in place. Not to have a care order where one is required to control the child’s care arrangements following revocation of a placement order, would entail the local authority making a fresh s 31 application at that time.”

33. In relation to pre-adoption contact, s.26(2) provides that, once a placement order is made, the court has the power to make an order “requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for the person named in the order and the child otherwise to have contact with each other.” S.26(4) states that, when making a placement order, the court may on its own initiative make an order under s.26. S.27(4) ACA 2002 imposes a duty on the court, before it makes a placement order, to consider the existing or proposed arrangements for allowing any person contact with the child, and to invite the parties to the proceedings to comment on those arrangements.

34. The court therefore has a responsibility to address the issue of contact when it is considering whether to making a placement order, and its decision will set the template for any future contact: Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302 per Baker LJ at [68]; Re S (Placement Order Contact) [2025] EWCA Civ 823 per Sir Andrew McFarlane P at [74-75]. If any provisions of the order should come into conflict with the child’s welfare, the order can of course be varied or revoked by the court under s 27(1)(b) ACA 2002.

35. Before leaving the ACA 2002, I also draw attention to s.1(6), which broadly replicates ss. 1(3)(g) and 1(5) CA 1989 by providing that the court “must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989)”, and by incorporating the no order principle.

36. I further draw attention to CA 1989 s.31(3A) and (3B), which will apply in every case where a care plan is placed before the court, whether or not there is an application for a placement order: “(3A) A court deciding whether to make a care order— (a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but (b) is not required to consider the remainder of the section 31A plan, subject to section 34(11). (3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are— (a) such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following— (i) the child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family; (ii) adoption; (iii) long-term care not within sub-paragraph (i) or (ii); (b) such of the plan's provisions as set out any of the following— (i) the impact on the child concerned of any harm that he or she suffered or was likely to suffer; (ii) the current and future needs of the child (including needs arising out of that impact); (iii) the way in which the long-term plan for the upbringing of the child would meet those current and future needs.” As subsection 3B(a) shows, the court is required to consider the long-term plan for the upbringing of the child, whether that is parental care, adoption or long-term foster care. Analysis and conclusion

37. The recorder’s judgment shows that he approached his task with humanity and with considerable understanding of the many difficulties that this family has faced. His extensive and correct legal self-direction included this statement at [72c]: “I must therefore grapple with the competing options and give them proper focused attention. I need to assess the positive and negative factors and look at the options against each other and to ensure that every option is fully considered against the other options, focusing at all times on A’s welfare globally and identifying what outcome is most able to meet A’s welfare needs.” He then applied this approach to the boys to reach a decision that was firmly rooted in the evidence.

38. In A’s case, however, I regret that the welfare analysis went awry, both in substance and in structure: (1) A stand-out feature of the welfare checklist was “the child’s particular needs”. A is an infant at a critical stage of attachment formation, and on any view the greatest of her particular needs was what Ms McConnell described as “permanence that is both legal and relational to support her healthy development into childhood and beyond”: in other words, she needed a home and a family to grow up in. The need was identified by all the professional witnesses, and there was no reason to undervalue it. However, the judgment contains only a brief reference at [184] to “a forever family and stability”, describing it as a benefit rather than a need. (2) In the same way, there was no robust assessment of how long-term fostering could meet A’s need for permanence. No party promoted it, and such evidence as there was about it was all one way and uncontested. As Ms McConnell said, foster care would provide stability in the short term, but it would not guarantee A the permanence and family identity of adoption. The recorder recorded at [184] that “as a long term fostered child she would remain in the care system and be subject to all the bureaucracy and reviews with no certainty that her carers would remain the same”, but he did not examine that prospect more closely. For example, that there was no information about how long A could stay with her current short term carers, because nobody had contemplated that her third home would be another foster placement. Equally, attention needed to be given to A’s longer-term vulnerability to all the uncertainties surrounding her brothers leaving care, whenever that may be. If they chose to return home on reaching majority or even before, A’s position as a fostered child might become more and more exposed, wherever her true welfare interests lay. For that reason, Ms Fincham’s submission that the other children may return to one or both of the parents at some unspecified time is a double-edged sword, and in my view one side of the blade is much sharper for A than the other. (3) The sequence in which the decisions were reached is seen at [183]: “Having decided that it is too risky for any of the children to live with the parents at this time, I am drawn to make a care order in A’s case for the reasons set out above. Should I go on to make a placement order?” For the reasons given above, it was an error of approach to have settled on a care order under CA 1989 before considering the application for a placement order under ACA 2002. It distracted attention from the care plan that was before the court, and led to a process whereby the parents and adoption were successively excluded, leaving only long term fostering. (4) In consequence, a care order was made without a corresponding care plan, and the court was unable to consider the permanence provisions for A’s future, as required. Further, where a court takes a different view from a local authority, the next step is for the court to invite the authority to reconsider: see Re T (A Child) [2018] EWCA Civ 650, where this court reviewed the respective roles of the court and the local authority in this situation. At [42] I referred to the process of mutual respect under which: “… the family court cannot dictate to the local authority what its care plan is to be, any more than it can dictate to any other party what their case should be. What the court can, however, expect from a local authority is a high level of respect for its assessments of risk and welfare, leading in almost every case to those assessments being put into effect.” This important convention only works if the court has a well-founded plan of its own. Here, the court did not ask the local authority to reconsider its care plan and, if it had done so, it did not offer an evidenced alternative to which the authority could have been expected to defer. Deadlock or an appeal were therefore inevitable, with precious time passing for A. (5) The recorder did not consider the whole range of his powers, as required by s.1(6) ACA 2002. In his legal self-direction he referred to s.26 ACA 2002, but he did not bring it into the subsequent analysis. The local authority had left the door open to a contact order, but in any case the court had a duty to consider contact and the power to make it happen. The recorder did not explain his statement at [187] that he was unable to be satisfied that A’s important relationships with her parents and siblings would be retained if a placement order was made. Such a statement might have been justified if the court had no power to make a contact order, but that was not so.

39. These difficulties eventually led at [188] to a false dichotomy between the importance of family bonds and the benefits of adoption, with one being found to outweigh the other. But the court was not being confined to an ‘either/or’ choice. Instead the professionals advocated ‘both/and’, whereby A has both the benefits of adoption and of a continuing relationship with her birth family. If the court considered this unachievable, it had to explain and justify its disagreement before dismissing the local authority’s application.

40. For these reasons, which broadly reflect the grounds of appeal, I would allow the appeal and set aside the dismissal of the application for a placement order.

41. As to what orders we should make, this court has all the powers of the lower court: FPR 52.20. We must at all times bear in mind that, in general, any delay in coming to a decision is likely to prejudice A’s welfare: s.1(3) ACA 2002. That general principle speaks loudly where a child is rising two, a crucial developmental age. Having effectively been in proceedings for all of her short life, A now has a pressing need for her future to be settled.

42. In these circumstances we would only remit this application to the Family Court if we were for some reason unable to make a decision ourselves, for example because there was more than one realistically possible outcome, and further evidence was needed. Here, I can find no reason for remitting. We have the recorder’s uncontested findings of fact and the core evidence that was available to him. Moreover, as is clear from my reasons for allowing the appeal, I have reached the view that there is only one possible way of discharging the court’s statutory duty to make A’s welfare throughout her life its paramount consideration, and that is to dispense with the parents’ consent under s.52 ACA 2002 and to make a placement order now. The order is necessary and the interference with the family’s Article 8 rights is proportionate.

43. The substitution of placement order on appeal also occurred following successful appeals in Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948, and in Re R and C (above). In the latter case, this court also made a contact order under s.26(2)(b) ACA 2002, and in my view the facts of the present case call for a similar approach. I would make an order requiring the local authority to allow supported face-to-face contact between A and her siblings in accordance with the care plan, namely (a) at the current level of once a month until A is placed for adoption, and (b) thereafter and until A is adopted, four times a year. I would not make any order in respect of contact by either parent, but would approve the care plan which provides for them to have supported contact (a) at the current level of once a month until A is placed for adoption, and (b) thereafter and until A is adopted, face-to-face contact once a year and an exchange of letters and photos once a year. The making of an order in respect of sibling contact only reflects the Guardian’s submissions to us, as recorded above. Given the uncertainties surrounding the parents’ circumstances and their reaction to the outcome, the no order principle applies.

44. These arrangements can be made responsive to developments, in the children’s case on an application to vary or revoke the order under s 27(1)(b), and in the parents’ case by a change in the care plan. They will continue until A is adopted, at which point the court will consider whether and if so how to exercise its power under s.51A ACA 2002 to make an order for post-adoption contact.

45. I know that A’s parents and brothers love her dearly and that this decision will cause them great distress. I hope that this may lessen over time with the preservation of relationships through contact, and that they may come to recognise that, as A cannot live with them, she must have a home of her own. If they can support her in this they will be giving her something of real value. Lady Justice King :

46. I agree. Lord Justice Bean (Vice-President of the Court of Appeal (Civil Division)) :

47. I also agree. _______________