The Essential-vs-Desirable Test for Sibling Contact Orders: Commentary on Re S (Placement Order Contact) [2025] EWCA Civ 823

Introduction

Re S (Placement Order Contact) is the Court of Appeal’s most detailed exploration for almost two decades of the statutory power in s 26 Adoption and Children Act 2002 (“ACA 2002”) to order contact after a placement order but before adoption. The case concerned two brothers, “R” (8) and “S” (2). Both became the subject of care orders; S alone was placed for adoption. The core issue was whether the judge at first instance was wrong to decline a sibling contact order, notwithstanding a care plan that suggested a modest level of direct and indirect contact.

The appeal provided the Court of Appeal with a platform to:

Clarify the circumstances in which a court must make a s 26 order,
Reconcile earlier authorities that appeared to pull in different directions, and
Give practical guidance to judges, social workers and adoption agencies on how to approach sibling contact at the placement stage.

Summary of the Judgment

The President of the Family Division (Sir Andrew McFarlane), giving the leading judgment and with King LJ and Singh LJ concurring, dismissed the mother’s appeal. The first-instance judge’s decision to refuse a s 26 order was upheld. Key points were:

The judge had been entitled to accept unanimous professional evidence that a formal order risked deterring prospective adopters for a child with additional needs.
Section 1(6) ACA 2002 imposes a statutory “no-order” principle: a court must not make any order unless that is better for the child than making no order.
A clear distinction must be drawn between cases where sibling contact is “essential” to welfare (Re P, Re R) and those where it is merely “desirable” (Re D-S, the present case).
Courts should avoid rote reliance on the “six visits per year” model emanating from Re R; contact must be bespoke.
Flexible forms of orders (or recitals) and a two-phase framework (pre-matching / post-matching) may be appropriate.

Analysis

1. Precedents Cited

The court synthesised three seminal cases:

Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535
– Held that where ongoing sibling contact is required in the child’s interests, the court, not prospective adopters, must decide and can impose a s 26 order.
Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948
– The Court of Appeal refused to make a contact order, prioritising an urgent search for adopters for an 11-month-old; contact was desirable but not determinative.
Re R (Children) [2024] EWCA Civ 1302
– Reaffirmed Re P; where sibling contact is “key”, the court “has the responsibility to make orders”. Six visits a year were ordered on the facts.

Re S reconciles these authorities by introducing an “essential/desirable” lens.

2. Legal Reasoning

Paramountcy and the lifelong lens – Section 1(2) ACA 2002 makes the welfare of the child throughout his life paramount in any adoption-related decision, including contact.
Statutory checklists – Particular reliance on s 1(4)(c) (effect of ceasing to be a member of the birth family) and s 1(4)(f)(i) (value to the child of continuing relationships).
No-order principle – s 1(6) ACA 2002 requires a positive finding that an order is “better” than none.
Judicial discretion vs. professional consensus – While courts are not bound by social-work consensus, here the unanimity of professionals, coupled with the judge’s knowledge of the family, justified trusting the plan.
Risk to family finding – It is legitimate to weigh evidence that an order might chill adopter interest, but that risk must not become an automatic trump card. The appellate court found the risk fact-specific and appropriately evaluated below.

3. The “Essential vs. Desirable” Test

“There is a distinction between those cases where continuing direct sibling contact is necessary for the child’s future welfare, and cases where the achievement of an adoptive home is the overarching goal, with future sibling contact being desirable as opposed to a pre-requisite.” (Sir Andrew McFarlane P)

The Court crystallised the practice rules implicitly present in Re P, Re D-S and Re R:

Contact essential to welfare ⇒ Court must make a s 26 order, even if this complicates family finding.
Contact merely desirable ⇒ Court may leave it to the agency/adopters and decline to order, provided the plan is coherent and monitored.

4. Practical Guidance (obiter)

The President offered pragmatic tools for first-instance judges:

Two-phase Orders – Phase 1 (pre-matching) can set a higher frequency; Phase 2 (post-matching) can be reduced or expressed flexibly, with liberty to apply for variation under s 27.
Flexible Drafting – If precise terms might deter adopters, an order or recital can record principles rather than rigid details (“minimum of two direct encounters per year, arrangements to be agreed with the agency”).
Recitals vs. Orders – Where an order would be disproportionate, recitals can still “set the template” and inform later adoption proceedings.
Bespoke frequency – Avoid mechanically adopting six sessions per year; decide afresh in every case.
Better Information for Adopters – Online profiles should distinguish sibling-only from parental contact to avoid unnecessary deterrence.

5. Anticipated Impact

Creates a structured test that lower courts can apply, leading to more predictable and transparent outcomes.
Encourages nuanced, evidence-based drafting of s 26 orders; likely increase in the use of flexible orders/recitals.
Re-balances perceived “default opposition” by local authorities – they must now show that contact is not essential rather than merely say it might deter adopters.
May prompt revision of 2013 Adoption Statutory Guidance, as suggested by the Association of Lawyers for Children.
Discourages mechanical “six-visits” practice that had reportedly emerged post-Re R.

Complex Concepts Simplified

Placement Order vs. Adoption Order – A placement order authorises a local authority to place a child with prospective adopters; adoption order follows later and makes the adopters the legal parents.
Section 26 Contact Order – A court order, in the window between placement and adoption, requiring specified contact (direct or indirect) with named individuals.
Parental Responsibility (PR) – Legal rights/duties over a child. Under a placement order, PR is shared by the agency; adopters get PR once the child is placed.
No-order Principle (s 1(6) ACA 2002) – The court must not make any order unless convinced that doing so is better for the child than making no order at all.
Direct vs. Indirect Contact – Direct = physical meetings/visits; Indirect = letters, cards, e-mails (“letter-box”).
Bespoke Welfare Evaluation – Tailoring decisions to the unique facts of each child; avoids blanket rules.

Conclusion

Re S refines the law on post-placement sibling contact by articulating an “essential versus desirable” paradigm and by emphasising the court’s continuing duty to evaluate contact against the full s 1 welfare checklist. It cautions against both extremes: rubber-stamping professional reluctance and mechanically imposing contact without regard to family-finding realities.

Key takeaways:

The ultimate question is always: Will an order today make this child’s lifelong welfare better?
Sibling contact that is integral to welfare mandates a s 26 order; otherwise, practitioners may rely on professional planning, recitals, and the flexibility of s 27 variations.
Courts must articulate the competing factors in a transparent welfare balancing exercise; risk to adopter recruitment is relevant but not decisive by default.
Flexible, creative drafting and accurate adopter information can reconcile the twin aims of stability through adoption and preservation of meaningful sibling relationships.

As adoption practice continues to evolve toward greater openness, Re S provides a principled yet practical framework that should help courts, agencies and families navigate the delicate balance between finding children secure homes and sustaining the family ties that matter most to them.