Adoption Is Not an “Either/Or” with Family Bonds: Courts Must Properly Apply ACA 2002 Welfare and Use s.26 Contact to Secure Sibling Relationships

1. Introduction

In Re L (A Child: Placement and Contact Orders) [2026] EWCA Civ 639, the Court of Appeal (Civil Division) (Lord Justice Bean VP, Lady Justice King, and Lord Justice Peter Jackson) allowed an appeal by a local authority against a decision of the Family Court at Gloucester (Recorder Calway) that had refused a placement order for a toddler and instead made only a care order.

The child (“A”) was the youngest of five siblings. Her four brothers were subject to care orders with long-term fostering plans, while A’s plan—advanced by the local authority and supported by the Children’s Guardian—was adoption with structured ongoing sibling contact. The parents opposed adoption.

The appeal turned on whether the recorder’s refusal of the placement order was lawfully and coherently reached, given (i) A’s acute need for permanence as an infant, (ii) the statutory welfare framework for adoption decisions, and (iii) the court’s powers to protect sibling relationships through contact orders.

2. Summary of the Judgment

• The Court of Appeal held that the recorder’s welfare analysis for A “went awry” in structure and substance.
• It allowed the appeal, set aside the refusal of the placement order, and substituted a placement order (dispensing with parental consent under s.52 Adoption and Children Act 2002).
• It made a sibling contact order under s.26(2) Adoption and Children Act 2002, requiring supported face-to-face contact in accordance with the care plan (monthly until placement; then four times yearly until adoption).
• It did not make a contact order for parental contact, but approved the care plan arrangements (applying the “no order” principle given uncertainties and the need to avoid destabilising the plan).
• It refused to remit for rehearing due to the imperative against delay (s.1(3) ACA 2002) and because, on the unchallenged findings, only one outcome could meet A’s lifelong welfare.

3. Analysis

3.1 Precedents Cited and Their Influence

(a) Correct statutory welfare framework: ACA 2002 displaces CA 1989 welfare analysis where adoption orders are in play

The Court of Appeal reaffirmed that where the court is considering both a care order and a placement order for a child, the welfare analysis must be conducted under s.1 Adoption and Children Act 2002, not under s.1 Children Act 1989. This was treated as established law, supported by:

• Re C (A Child) [2013] EWCA Civ 1257
• Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 40
• Re J (Care Plan for Adoption) [2024] EWCA Civ 265

The court relied particularly on the explanation in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 40 that the placement application is “the primary application” and that “hiving off” the care application first can lead to selecting the wrong welfare checklist and to analytical error. In the present case, the recorder’s sequence (“I am drawn to make a care order… Should I go on to make a placement order?”) exemplified that misstep.

(b) Contact as part of the placement decision: duty to address and power to order

The Court of Appeal emphasised that when considering a placement order, the court has both: (i) a responsibility to address contact arrangements (s.27(4) ACA 2002), and (ii) a power to make pre-adoption contact orders (s.26 ACA 2002). It relied on:

• Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302
• Re S (Placement Order Contact) [2025] EWCA Civ 823

Those authorities supported the proposition that the placement decision “sets the template” for contact going forward. The recorder’s reasoning that contact “could not be guaranteed” was treated as incomplete and legally misdirected because the statute equips the court to secure contact by order, at least up to the point of adoption (and subject to later variation under s.27(1)(b) ACA 2002).

(c) Court–local authority dynamics when the court rejects a care plan

The court held that once a judge departs from the local authority’s care plan, the appropriate next step is to invite the authority to reconsider and provide an amended plan. It drew on Re T (A Child) [2018] EWCA Civ 650 (including Lord Justice Peter Jackson’s earlier description of “mutual respect” between court and authority). The recorder’s approach produced a care order “without a corresponding care plan” and without an evidenced alternative permanence proposal—making “deadlock or an appeal” inevitable.

(d) Appellate restraint and reasons: limits of deference where the outcome is unexamined and unworkable

The mother relied on Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 to argue that not every argument must be rehearsed in a judgment. The Court of Appeal did not dispute that general proposition, but effectively held that it could not save a decision where core statutory requirements—permanence analysis, correct welfare framework, and consideration of available powers—had not been properly undertaken.

(e) Substitution on appeal in adoption/permanence cases

The court cited instances where it substituted a placement order rather than remitting:

• Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948
• Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302

In the present case, substitution was justified by the child’s age, the delay principle in s.1(3) ACA 2002, uncontested facts, and the conclusion that only one outcome could satisfy welfare “throughout life” (s.1(2) ACA 2002).

3.2 Legal Reasoning

(a) The central welfare need: permanence is a “particular need”, not merely a “benefit”

The court treated A’s “stand-out” welfare feature under s.1(4)(b) ACA 2002 (“particular needs”) as her urgent developmental need for a stable, lifelong family environment. The recorder’s reasoning was criticised for describing adoption largely as a “benefit” and for failing to give “discernible weight” to A’s pressing need for a home “for her childhood and beyond.”

(b) Inadequate analysis of the only alternative left by the recorder: long-term fostering

No party contended that long-term fostering was suitable for A, and the professional evidence was one-way: it identified the risks of uncertainty and instability for a child of A’s age if permanence were not secured. The Court of Appeal held that the recorder nevertheless needed a “robust assessment” of whether long-term fostering could meet A’s permanence need, including practical realities (e.g., uncertainty about the current foster carers’ ability to offer long-term care).

The court also highlighted an often-overlooked systemic risk: where siblings have different legal trajectories, a fostered child may become more vulnerable over time to instability as older siblings leave care and family dynamics change.

(c) Structural error: deciding a care order first, then treating the placement order as optional add-on

Following the authorities on statutory structure, the Court of Appeal held the recorder’s sequencing was erroneous. The placement decision was the statutory “centre of gravity” for A’s case. The incorrect structure led to a process of elimination—ruling out parental care, then ruling out adoption, and leaving long-term fostering by default—without the statutory adoption welfare discipline required by s.1 ACA 2002.

(d) Failure to consider the “whole range of powers”: the missed s.26 solution and the “false dichotomy”

The court’s most precedent-significant point is its rejection of an “either/or” framing between: (i) adoption permanence, and (ii) preservation of sibling/family relationships.

The recorder’s concern—loss of bonds due to lack of “guaranteed” contact—was answerable by recognising and using the court’s own powers under s.26 ACA 2002 (and by acknowledging the duty to consider contact under s.27(4) ACA 2002). This was the basis for the Court of Appeal’s “both/and” approach: adoption for permanence plus an enforceable sibling contact regime up to adoption.

(e) Proportionality and Article 8

The court explicitly held that the placement order was “necessary” and that the interference with Article 8 rights was “proportionate” given the unchallenged findings and the child’s welfare needs throughout life. The decision shows how proportionality analysis is tightly linked to (i) the availability of mitigations (here, contact orders) and (ii) avoiding outcomes that leave a child without an evidenced permanence plan.

3.3 Impact

(a) A practical appellate warning: do not adopt unargued “third way” outcomes without investigating their workability

The Court of Appeal was particularly critical that the recorder endorsed an outcome “none of the parties had promoted” and therefore one the court had not properly tested in evidence. This case reinforces that where a judge is contemplating a materially different permanence outcome, procedural fairness and welfare analysis require:

• identifying the alternative as a realistic option during the hearing,
• testing it against evidence (including practical placement realities), and
• ensuring a workable, lawful care plan is in place.

(b) Stronger judicial use of s.26 to preserve sibling relationships in adoption-track cases

The judgment consolidates the modern direction of travel (seen in Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302 and Re S (Placement Order Contact) [2025] EWCA Civ 823): courts should treat contact as integral to the placement decision and should not underestimate their ability to secure it pre-adoption through enforceable orders.

It is likely to encourage:

• more frequent sibling-contact orders alongside placement orders (tailored to safeguarding constraints), and
• clearer reasoning where a judge declines to use s.26 despite a contact-supporting care plan.

(c) Reinforcing the statutory primacy of ACA 2002 welfare and the “permanence provisions” duty

By linking the ACA 2002 framework with the obligation under s.31(3A)-(3B) Children Act 1989 to consider the “permanence provisions” of the care plan, the case underscores that a court cannot make a care order while leaving permanence effectively unresolved, particularly for very young children.

4. Complex Concepts Simplified

Care order (Children Act 1989)

An order placing the child in the care of the local authority, giving it parental responsibility and power to determine where the child lives (subject to legal constraints).

Placement order (Adoption and Children Act 2002)

An order authorising a local authority to place a child for adoption. It is a decisive step towards adoption and requires the court to apply the ACA 2002 welfare test.

ACA 2002 “welfare throughout life”

Unlike some short-term welfare evaluations, s.1(2) requires the court to prioritise the child’s welfare across their whole life trajectory—identity, stability, relationships, and long-term security.

s.26 ACA 2002 contact order (pre-adoption)

A court order, made when a placement order is made (or after), requiring the carers/agency to allow contact. It can “guarantee” contact in the legal sense up to adoption, subject to later variation if welfare demands.

s.51A ACA 2002 contact order (post-adoption)

After an adoption order, the court has a separate power to order contact. This case concerned primarily the pre-adoption period, while noting that post-adoption contact would be considered later if appropriate.

“No order” principle

The idea (reflected in adoption and children legislation) that the court should not make an order unless it is better for the child than making no order. Here it justified not ordering parental contact while approving planned arrangements.

5. Conclusion

Re L (A Child: Placement and Contact Orders) [2026] EWCA Civ 639 clarifies and strengthens several connected principles: (1) in placement-order cases the court must apply s.1 ACA 2002 as the governing welfare framework; (2) a judge cannot reject an adoption plan and default to long-term fostering without a tested, workable permanence analysis and plan; and (3) critically, adoption need not be framed as a choice that sacrifices sibling bonds—courts should consider and, where appropriate, use s.26 ACA 2002 to secure meaningful sibling contact, avoiding a “false dichotomy” and delivering a “both/and” welfare solution.