Contact-Driven Refusal of Placement Orders: When a Stable Foster Home and “Necessary” Direct Parental Contact Mean Adoption Is Not “Required”

1. Introduction

S, Re (Foster Care or Placement for Adoption) [2026] EWCA Civ 47 is a Court of Appeal decision about permanence planning for a 4 year 8 month old child (“S”) subject to a care order under the Children Act 1989. The local authority appealed against the refusal of its application for a placement order under s 21 of the Adoption and Children Act 2002 (“ACA 2002”).

The parents did not seek S’s return to their care on appeal; the central issue was binary and practical: should the court authorise placement for adoption, or should S remain in foster care on a long-term basis—particularly in her existing foster home—where the evidence showed she was settled and enjoyed positive, meaningful direct contact with her mother?

The appeal also exposed a recurrent tension in modern adoption cases: the interaction between (i) a court’s obligation to assess whether adoption is “required” (necessity/proportionality), (ii) the increasingly “open” model of adoption with direct contact, and (iii) real-world family-finding constraints for older children and/or cases requiring robust direct contact.

2. Summary of the Judgment

The Court of Appeal dismissed the local authority’s appeal and upheld the first instance judge’s refusal to make a placement order. Although the judge had not set out a classic side-by-side “balance sheet” analysis, the Court of Appeal held that, reading the judgment as a whole, the judge had sufficiently evaluated the competing options and given adequate reasons.

The Court accepted that adoption offers greater legal security and tends to promote emotional permanence, but concluded that adoption was not shown to be “required” for S within the meaning of s 52(1) ACA 2002. Key features included:

  • S’s established, beneficial relationship with her mother through direct contact;
  • the judge’s determination that ongoing direct contact at least fortnightly was in S’s best interests;
  • the high risk of harm to S from another move, given her history of multiple moves and her settled placement;
  • legitimate judicial doubt about whether an adoptive placement could realistically be found that would accept the required level of direct contact; and
  • subsequent evidence (obtained on appeal) confirming the foster carers’ willingness to care for S long-term, materially weakening the local authority’s “availability” challenge.

3. Analysis

3.1 Precedents Cited

The decision is best understood as a careful application of established appellate guidance rather than a doctrinal “rewrite”. Its practical significance lies in how the Court reconciled several lines of authority in a fact-sensitive “margin” case.

3.1.1 The meaning of “requires” and the “nothing else will do” shorthand

  • Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535: The Court reaffirmed that “requires” in s 52(1) ACA 2002 imports an “imperative”, aligning with Strasbourg necessity/proportionality. This framed the appellate question: was adoption truly demanded for S’s welfare, or merely preferable?
  • Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33: Cited for the “high degree of justification” required before endorsing adoption as necessary and proportionate under Article 8 ECHR.
  • Re W (Adoption: Approach to Long-Term Welfare) [2017] 2 FLR 31 and Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146: Used to caution against treating “nothing else will do” as a shortcut test. The Court treated the phrase properly—as a summary of proportionality/necessity after a full welfare evaluation, not a substitute for it.

3.1.2 Adoption vs long-term fostering: legal status, identity, belonging, stability

  • Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948: Provided a modern restatement of the contrasting characteristics of adoption and fostering, and—critically—Peter Jackson LJ’s observation that placement availability evidence is usually unnecessary, but may matter “at the margins” (e.g., older children). S’s age (approaching 5) and the required openness/contact took this case closer to that margin.
  • Re V (Long-term Fostering or Adoption) [2014] 1 FLR 670: Recalled for the “belonging” advantages often associated with adoption. The Court accepted these general advantages but treated them as part of a fact-specific comparative evaluation rather than determinative.

3.1.3 Post-adoption contact and the “template” function of placement-stage decisions

  • Re S (Placement Order: Contact) [2025] EWCA Civ 823, Re B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29, and Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302: These authorities were deployed to underline the “modern world” of open adoption and the court’s role in “setting the template” for contact at placement order stage. Importantly, they also emphasise that adopter preferences do not relieve the court of deciding what contact is required by welfare.
  • President’s Public Law Working Group report (‘Best Practice in Adoption: November 2024): Noted to support a tailored approach and to promote face-to-face contact with important people where safe and in the child’s best interests.

3.1.4 Welfare evaluation methodology and appellate restraint

  • Re G (Care Proceedings: Welfare Evaluation) [2014] 1 FLR 670: Emphasised the comparative evaluation of options (often expressed as a balance sheet). The Court accepted this as best practice but not mandatory.
  • Re N (Refusal of Placement Order) [2023] 2 FLR 642 and Re F (A Child) (International Relocation: Welfare Analysis) [2015] EWCA Civ 882: Reinforced that a balance sheet is an “aide memoire” not an “imperative”; the real question is whether the welfare reasoning is adequate.
  • Piglowska v. Piglowski [1999] UKHL 27: Warned against over-technical “narrow textual analysis” of judgments on appeal.
  • D J & C Withers (Farms) Ltd v Ambic Equipment Ltd (reported together with English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605): Cited for the requirement that reasons must be sufficient to show why the decision was reached, enabling meaningful appellate review.

3.1.5 Evidence about family-finding difficulty

  • Re T (Placement Order) [2008] 1 FLR 172: The Court reiterated that uncertainty of finding adopters is not, by itself, a reason to refuse a placement order. However, consistent with the “margin” concept in Re D-S, the Court accepted that, in a case where contact levels are welfare-required and the child needs to remain settled “now”, difficulties of finding an open placement can become a relevant factor in the overall welfare calculus.

3.2 Legal Reasoning

3.2.1 The decisive welfare question: was adoption “required”?

The appellate court treated s 52(1) ACA 2002 as the controlling gateway: parental consent can be dispensed with only if the child’s welfare “requires” it. The judgment illustrates that this is not a generalised preference for “permanence”, but a necessity test applied to the child’s circumstances throughout life (s 1(2) ACA 2002).

3.2.2 Contact as a welfare “requirement” that shapes permanence options

A practical doctrinal thread runs through the decision: where the court concludes that relatively frequent direct parental contact is necessary for the child’s welfare (as distinct from merely desirable), it is entitled—indeed obliged—to let that determination structure the permanence analysis.

Here, the judge’s “template” contact level (fortnightly, reducible to monthly only if carers could not support more) was central. Once that contact need was accepted, the court was entitled to treat the feasibility of achieving it within an adoptive placement as a material welfare consideration, even while acknowledging that difficulty of finding adopters is not ordinarily decisive.

3.2.3 The balance sheet critique: desirable discipline, not a rigid requirement

The local authority’s primary attack was methodological: no explicit side-by-side balance sheet and therefore (it argued) no adequate comparative analysis. The Court agreed the judgment would have been “far better” with that structure, but held the reasoning was sufficiently traceable:

  • the judge recognised adoption’s stability advantage;
  • he identified the harm risk of another move;
  • he weighed the likely diminution of a meaningful mother-child relationship if adoption proceeded on the proposed contact;
  • he evaluated (and criticised) deficits in the local authority’s own analysis, including late plan changes and limited exploration of long-term fostering.

3.2.4 The “current foster placement” issue and the appellate use of updated evidence

A notable feature was the Court’s reliance on updated evidence from the foster carers obtained under a direction of Peter Jackson LJ. The first instance judge arguably overstated the confidence with which long-term availability could be assumed (given the carers were only approved as short-term carers). However, the new evidence confirmed a willingness to care for S “potentially throughout her entire childhood” (though not to adopt).

The Court treated this as effectively defusing the local authority’s Ground 2 challenge. The judgment thereby demonstrates the pragmatic appellate approach to permanence cases: the question is not whether the first instance judge used perfect language, but whether the decision remains workable and welfare-justified on the best available evidence.

3.2.5 Judicial evaluation of the local authority’s plan quality

The Court accepted that the local authority’s plan had evolved late—from closed adoption to “open adoption”—and that the judge was entitled to view this sceptically as potentially driven by “forensic necessity”. The Court also accepted criticism that the authority had not seriously addressed long-term fostering, nor investigated the current carers’ position with sufficient care.

This is not a “punishment” for poor practice; it is a welfare point. Where adoption is said to be “required”, the evidential and analytical foundations must be commensurately rigorous.

3.3 Impact

3.3.1 Practical precedent: contact-led realism in “open adoption” cases

Although the decision does not change the statutory test, it is likely to be cited for a practical proposition: in an older-child case, where the court finds that relatively frequent direct parental contact is welfare-required, the court may legitimately conclude that adoption is not “required” if the only adoption realistically achievable would hollow out that relationship or require an additional move carrying high emotional risk.

3.3.2 Reinforcement of the court’s “template” responsibility at placement stage

The decision strengthens the recent line of authority (especially Re S (Placement Order: Contact) [2025] EWCA Civ 823 and Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302) that the court must decide the contact arrangements required for welfare at the placement stage and should not dilute them merely to facilitate family finding. This may result in more cases where:

  • a placement order is refused because required contact makes adoption disproportionate; or
  • a placement order is granted but accompanied by clearer contact “known knowns” to shape adopter recruitment.

3.3.3 Evidence standards: long-term foster viability must be properly investigated

A key lesson for local authorities is the forensic vulnerability of underdeveloped alternatives analysis. The Court endorsed the judge’s criticism that long-term fostering—particularly with existing carers—was not properly explored. In future contested placement applications, authorities can expect scrutiny of:

  • the current carers’ true commitment and approval status;
  • the concrete steps and timelines to convert a short-term placement into long-term fostering;
  • the realism of the proposed contact regime and the authority’s plan to secure it in adoption.

3.3.4 Appellate restraint and “workability”

The Court’s closing reliance on Peter Jackson LJ’s remarks in Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948 underscores that appeals will not succeed merely because another judge might have selected adoption. The focus remains: correct approach, adequate explanation, and a plan that will work for the child.

4. Complex Concepts Simplified

  • Placement order: A court order authorising a local authority to place a child for adoption (ACA 2002, s 21). It is not the adoption order itself, but it is the key “gateway” step enabling adoption placement.
  • Dispensing with parental consent (“requires”): Even if parents do not agree, the court can dispense with consent only if the child’s welfare requires it (ACA 2002, s 52(1)). This reflects the Article 8 ECHR principles of necessity and proportionality.
  • “Nothing else will do”: A shorthand for necessity/proportionality; it is not a standalone test. The court must still conduct a full welfare evaluation of realistic options.
  • Open adoption: Adoption where the child has some continuing relationship/contact with birth family members. The modern approach recognises that direct contact can sometimes be welfare-promoting, but it must be planned realistically and safely.
  • Balance sheet analysis: A structured way of listing pros/cons of each option side by side. Helpful and often advisable, but not legally mandatory if the judgment otherwise shows proper evaluation and reasoning.
  • “Template” contact: The idea that the court’s contact decision at placement stage sets the baseline assumptions (“known knowns”) for future planning and for potential adopters to accept from the outset.

5. Conclusion

S, Re (Foster Care or Placement for Adoption) [2026] EWCA Civ 47 confirms that adoption remains the most legally secure option, but it is not an automatic default where parents cannot care and family options fail. The court must be satisfied that adoption is truly “required”.

The case is significant for its contact-centred realism: where meaningful direct parental contact is necessary for welfare, and where the child is settled in a viable long-term foster home such that another move carries acute risk, the court may conclude that adoption is disproportionate and refuse a placement order—particularly where open adoption at the required contact level is unlikely to be achievable in practice.

Finally, the judgment reinforces two systemic messages: (i) local authorities must present a properly reasoned, evidence-based comparison of realistic options (including long-term fostering with current carers where relevant), and (ii) courts may tolerate imperfect structure (no balance sheet) where the welfare reasoning is nevertheless clear, comprehensive, and workable for the child.