Section 26 ACA 2002: “Necessary” Post-Placement Parental Contact May Be Ordered (Not Merely Recited) Where Otherwise the Relationship Is Likely to Wither

1. Introduction

This appeal arose out of long-running public law proceedings (reaching the 94th week) concerning four siblings: A (13), B (10/11), C (3/4) and D (2/3). The final welfare outcomes were not in dispute on appeal: A remained in foster care under a care order; B lived with his father under a supervision order; and C and D were made subject to care and placement orders, with a plan for adoption ideally together.

The appeal focused on a single post-placement issue: whether the Family Court judge (HHJ Lazarus) was wrong to make a section 26 ACA 2002 order requiring the local authority to ensure that C and D have face-to-face contact with their father at least once each year after placement for adoption. All parties accepted that some form of future direct contact was beneficial; the dispute was whether it should be secured by an enforceable order or merely recorded as a non-binding recital to preserve flexibility and avoid deterring adopters.

A distinctive feature was the father’s profound vulnerability: significant learning disability, illiteracy, and reliance on intermediary support. The trial judge found that absent a court order the father would be unable to navigate processes to maintain contact, with the consequence that the children would be “grossly disadvantaged” ([J2][182]).

2. Summary of the Judgment

The Court of Appeal dismissed the local authority’s appeal and upheld the section 26 order. It held that:

• The judge conducted a permissible, bespoke welfare evaluation and was entitled to conclude that annual direct paternal contact was “necessary” to meet the children’s welfare needs, rather than merely “desirable”.
• The judge was entitled to give limited weight to the “pool-halving” family-finding evidence, particularly given the uncertainty whether the same deterrent effect would arise from the local authority’s proposed recital (which itself required early discussions with adopters about annual contact).
• The “no order” principle in section 1(6) ACA 2002 did not preclude an order where the judge rationally concluded that compulsion was “better for the child” than leaving contact vulnerable to administrative and practical failure.
• The judge’s departure from professional recommendations (social worker and Guardian opposing an order but supporting contact in principle) did not vitiate the decision; the selection of the appropriate order was “primarily judicial territory”.

The Court of Appeal emphasised appellate restraint in evaluative welfare decisions and found no “identifiable flaw” such as a gap in logic, inconsistency, or failure to account for material factors.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302

This authority provided the modern “open adoption” lens repeatedly adopted in the appeal judgment. The Court of Appeal in B-A endorsed the principle, quoted from Baker LJ, that at the placement stage it is the court, not the local authority, that bears responsibility for determining whether ongoing contact should occur (Re R and C at [2]). It also reinforced the idea of the court “setting the template” for contact at the placement stage, shaping adopter expectations “before they are formed”.

In B-A, that template-setting function was extended beyond sibling contact (the factual focus of Re R and C) to parental contact, with the Court stating that the approach applies “without material adaptation”.

Re S (Placement Order Contact) [2025] EWCA Civ 823

Re S framed the key tension: preserving relationships versus avoiding undue deterrence to adopters. McFarlane P’s warning that deterrence must not become determinative “in each and every case” (at [74]) was central to rejecting the local authority’s submission that family finding difficulties should drive the outcome.

The Court also relied on Re S to structure the binary choice identified at [48]: either (i) make a binding section 26 order, or (ii) record intentions in a recital to preserve flexibility. Importantly, Re S distinguishes between contact that is essential/necessary and contact that is merely desirable—a distinction the trial judge was found entitled to apply when she spoke of an “established need” ([J2][184]).

Re P (Placement Order: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625

Re P supplied two critical strands:

• Least intervention / no order:Re O (Care or Supervision Order) [1996] 2 FLR 755—start from the less interventionist solution unless “cogent reasons” justify more.
• Court responsibility for contact:

In B-A, those principles were reconciled: “no order” is a starting point, but where the judge concludes that without compulsion contact is likely to fail (because a vulnerable parent cannot “navigate the system”), cogent reasons exist to prefer an order.

Re B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29

McFarlane P’s observation that the placement stage can “set the tone for future contact” (at [62]) reinforced the legitimacy of orders at the placement stage designed to influence longer-term relational outcomes, even though section 26 orders technically expire on adoption.

Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948

The local authority relied on Peter Jackson LJ’s recognition that post-adoption parental contact may “complicate” family finding and in some cases an order “might be detrimental” to the priority of securing adoption. The Court of Appeal in B-A acknowledged this general proposition ([51]) but treated it as context-dependent and subordinate to a case-specific finding of necessity, consistent with Re S.

Bellenden (Formerly Sattherthwaite) v Satterthwaite [1948] 1 All ER 343

This was cited for the restraint appellate courts must show towards discretionary decisions: only where the decision falls outside the “generous ambit” of reasonable disagreement should it be disturbed. It underpinned the conclusion that even if another judge might have chosen a recital, that would not make this order wrong.

Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911 (“Re B”)

Re B anchored:

• The special advantage of the trial judge in welfare determinations (Lord Wilson at [42]).
• The appellate test: the appeal court does not re-balance welfare but asks whether the decision was “wrong”.

Prescott v Potamianos (also known as Re Sprintroom) [2019] EWCA Civ 932; R (on the application of AR) v Chief Constable of Greater Manchester Police & ano'r. [2018] UKSC 47; Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc and another [2025] UKSC 25

These cases supplied the modern articulation of “identifiable flaw” review: a gap in logic, inconsistency, or failure to consider a material factor. The Court used this framework to reject the submission that the judge’s reasoning was inadequately holistic or insufficiently evidenced.

Re J (Residence: Expert Evidence) [2001] 2 FCR 44

Re J was invoked for the idea of “courtesy”—explaining departure from professional recommendations. The Court accepted that more explicit reasoning might have been courteous, but held the omission did not undermine the legality or robustness of the judge’s conclusion.

3.2 Legal Reasoning

(a) The statutory setting: welfare and “no order”

The Court situated the contact question within the ACA 2002 welfare architecture:

• Section 1(2): welfare throughout life is paramount.
• Section 1(4)(c) and (f): the lifelong effect of leaving the birth family and the value/likelihood of continuing relationships with relatives.
• Section 1(6): the “no order” principle—do not make an order unless better than making none.

The local authority argued that because it intended to promote contact, an order was unnecessary and risked deterring adopters. The Court rejected a categorical approach: the question is not whether the local authority is well-intentioned, but whether without compulsion the arrangement is sufficiently secure to meet welfare needs.

(b) Necessity vs desirability: the decisive welfare characterisation

The Court treated the trial judge’s reasoning as a finding that annual paternal contact was necessary (“an established need” at [J2][184]), not merely beneficial. That characterisation did substantial work:

• It engaged the Re S principle that the court must make contact orders where required to meet welfare needs, even if family finding becomes more challenging.
• It justified overcoming the section 1(6) starting presumption against orders: compulsion was “better” than a recital because the risk of relationship attrition was real and foreseeable.

(c) The father’s vulnerability as a welfare factor (not a collateral sympathy)

A striking aspect of the judgment is the candid recognition that “flexibility” (the virtue of a recital) can be illusory where the relevant adult lacks capacity to operate within the system. The judge’s concern was practical and child-centred: if the father cannot read or write, struggles cognitively, and would be “grossly disadvantaged” in making applications or pursuing contact, then the children are “grossly disadvantaged” too ([J2][182]).

The Court of Appeal accepted this as a rational bridge from parental disability to children’s welfare: the order is not to vindicate the father’s rights as an end in itself; it is to prevent a predictable welfare loss—erosion of identity and attachment to the children’s “sole connection” with their paternal identity.

(d) Family finding evidence: weight, uncertainty, and the “recital paradox”

The family finder’s evidence suggested that requiring direct parental contact would likely “halve” the pool. The Court’s critique was not that such evidence is irrelevant, but that it was insufficiently discriminating in this particular case:

• It was unclear whether the pool reduction was driven by the fact of expected parental contact, or by the formality of a section 26 order.
• The local authority’s proposed recital would still require early discussion with adopters about annual contact—so the same deterrent effect might follow even without an order.

This reasoning is important: it resists a simplistic “order = fewer adopters / recital = more adopters” assumption and demands evidential clarity as to what, in reality, causes deterrence.

(e) Reasons and departure from professionals

The Court accepted that both the social worker and Guardian opposed a section 26 order while supporting contact in principle, largely on family-finding grounds. But the Court held that choosing between order and recital, once welfare needs are identified and legal principles are applied, is “primarily judicial territory”. The judge’s favourable assessment of the professionals’ general work did not bind her to their preferred mechanism.

(f) The “safety net” of section 27 ACA 2002

The Court discussed section 27(1) (variation/revocation of section 26 orders) and section 27(2) (short urgent suspension) as a structural safeguard if the order later proves a genuine barrier to placement. While recognising that section 27 applications may be unwieldy, the Court indicated case-management solutions (judicial continuity; FPR powers for expedition). This underscores that the system is designed to allow a “template” to be set without making it irredeemably rigid.

3.3 Impact

(1) Extending the “template/road map” jurisprudence beyond sibling contact

Although recent authorities often arise from sibling contact disputes, B-A confirms that the same analytical approach applies to parental contact at the placement stage “without material adaptation”. This is a meaningful doctrinal consolidation: section 26 is not sibling-specific in its logic.

(2) A practical welfare lens: vulnerability and enforceability

The decision is likely to be cited where a parent’s disability, literacy barriers, cognitive impairment, language issues, or other vulnerabilities make informal “intentions” unreliable. It signals that courts may treat enforceability and administrative realism as welfare-relevant factors under section 1(4), particularly where the relationship is important to identity and emotional security.

(3) Evidence about adopter deterrence must be granular

The Court’s interrogation of what exactly reduces the adopter pool (contact itself vs court-ordered contact) will encourage more precise evidence and avoid speculative reliance on generalised propositions. Local authorities may increasingly be expected to evidence:

• local/regional adopter availability,
• how “order vs expectation” affects matching in practice, and
• whether adopter hesitation is mitigated by framing, support, and clear rationale.

(4) Reinforcing appellate restraint

The judgment also serves as a reminder that these decisions commonly involve reasonable disagreement. Appellate intervention requires an “identifiable flaw”, not merely that a different outcome was plausible.

4. Complex Concepts Simplified

Section 26 ACA 2002 (“contact after placement”)

A section 26 order is a court order made when a child is authorised to be placed (or is placed) for adoption. It requires the child’s carer (in practice, the local authority/adoption agency arrangements with adopters) to allow contact of a specified type and frequency. It generally lasts until an adoption order is made (unless varied or revoked).

Recitals vs orders

A recital records intentions or background on the face of an order but is typically not enforceable like an operative order. Recitals can preserve flexibility; orders create obligation and a clearer “template”.

“No order principle” (section 1(6) ACA 2002)

The court should not make an order unless it is better for the child than making none. It does not mean “avoid orders whenever parties broadly agree”; it means that the judge must be satisfied that the legal compulsion improves the welfare outcome compared with leaving matters informal.

“Setting the template / tone / road map”

These metaphors reflect the court’s role at the placement stage: to set expectations for adopters and agencies about what contact is required for the child’s welfare, rather than leaving it solely to negotiation later.

Section 27 ACA 2002 (vary/revoke; urgent refusal)

If a section 26 order later proves impracticable or contrary to welfare:

• Section 27(1): the court can vary/revoke on application.
• Section 27(2): the agency can refuse contact urgently for up to 7 days to safeguard/promote welfare.

5. Conclusion

B-A, Re strengthens and clarifies the modern approach to post-placement contact: the court must make a bespoke welfare assessment and, where it finds that contact is required to meet welfare needs, it should not allow adopter-deterrence risk to “obviate” its responsibility to set the template for contact.

The judgment’s most durable contribution is its practical focus on the fragility of informal arrangements for vulnerable parents and the resulting welfare consequences for children—particularly in relation to identity, continuity of affection, and the preservation of meaningful family connections within an adoption plan.