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S, Re (Foster Care or Placement for Adoption)
Smart Summary
Summary of Opinion (Anonymised)
Factual and Procedural Background
This appeal concerns a girl (referred to in the judgment as S) ("Child"), aged about 4 years 8 months, who is the only child of the Mother (First Respondent) and Father (Second Respondent). The Appellant, the Local Authority, obtained a care order under Part IV Children Act 1989 and Child is in foster care. At the first-instance hearing on 25 September 2025 the trial Judge Tolson made the care order but refused the Local Authority's application for a placement order under section 21 of the Adoption and Children Act 2002 (ACA 2002). The Local Authority appealed only against the refusal of the placement order. Permission to appeal was granted by Judge Jackson on 1 December 2025, who directed that the current foster carers be asked to confirm in writing whether they would commit to caring for Child throughout her childhood. The foster carers answered and their evidence was placed before this Court. At the conclusion of the appeal the Court dismissed the appeal; this summary gives the reasons set out by the Court.
Legal Issues Presented
- Whether the trial judge erred in refusing the placement order by failing to undertake an adequate comparative (balance-sheet) analysis of adoption versus long-term foster care.
- Whether the trial judge was wrong to conclude that the current foster placement was available and 'at least highly likely' to continue to meet Child's needs throughout her minority.
- Whether the trial judge failed properly to recognise or weigh the advantages of an open adoptive placement for Child (including post-adoption direct contact).
- Whether the trial judge was wrong to conclude that the Local Authority was unlikely or insufficiently committed to finding a suitable open adoptive placement for Child, and whether he placed undue weight on that conclusion.
- Whether the trial judge gave adequate reasons for departing from professional recommendations (Local Authority and Children's Guardian) that adoption best met Child's welfare interests.
Arguments of the Parties
Appellant (Local Authority)
- The Judge failed to undertake any adequate balance-sheet analysis comparing adoption and long-term foster care.
- The Judge overstated the preparedness/ability of the current foster carers and wrongly characterised them as long-term carers when they were approved only as short-term carers.
- The Judge was unduly pessimistic about the prospects of finding adoptive parents who would accept direct contact at the frequency he required.
- The Judge unfairly assessed the Local Authority as not committed to finding an open adoptive placement.
Mother (First Respondent)
- Opposed adoption and submitted Child should either return to her care or, if not, remain with the current foster carers.
- Argued the Judge's judgment, read as a whole, showed sufficient analysis to justify preferring long-term foster care with the current carers.
Father (Second Respondent)
- Opposed adoption and supported Child remaining with the current foster carers.
Children's Guardian
- At the first-instance hearing recommended adoption because of instability and impact of multiple moves, but acknowledged contact with Mother was positive.
- On appeal, having seen the foster carers' written views, changed position and supported dismissal of the appeal (i.e., Child remaining with current carers long-term).
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 |
Meaning of "requires" in section 52(1) ACA 2002 (connotation of imperative; "nothing else will do"). |
Adopted as authority for the imperative interpretation of "requires" when dispensing parental consent for adoption; used to frame statutory threshold. |
| Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911; sub nom Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075 |
Need for high degree of justification (necessity and proportionality) for adoption under Article 8 and domestic law. |
Applied as part of the framework emphasising necessity/proportionality when considering adoption versus fostering. |
| Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948; [2025] 1 FLR 815 |
Review of characteristics distinguishing adoption and fostering; observations on when placement-availability evidence may be necessary (marginal cases such as older child). |
Used to support that court must decide adoption v fostering as matter of principle; noted relevance of specific placement-availability evidence for older child like Child. |
| Re V (Long-term Fostering or Adoption) [2014] 1 FLR 670 |
Adoption provides strongest legal security and 'belonging'; contrasts with fostering's legal status. |
Referred to when weighing legal and emotional stability offered by adoption against foster care. |
| Re S (Placement Order: Contact) [2025] EWCA Civ 823; [2026] 1 FLR 48 |
Shift towards post-adoption contact; duty of judge on placement order application to set template for contact and consider impact on family-finding. |
Relied upon to justify that the court must set contact expectations at placement stage and to consider impact of contact proposals on finding adopters. |
| Re B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29; [2019] 2 FLR 117 |
Guidance on post-adoption contact and the court's role in setting tone for future contact. |
Used to support the proposition that placement-stage contact decisions inform family-finding and are within the court's responsibility. |
| Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302; [2025] 2 FLR 68 |
Comprehensive review of caselaw on open adoption; judges should set template for contact at placement stage. |
Appeal court cited its guidance on open adoption and the duty to consider contact arrangements when assessing placement orders. |
| Re G (Care Proceedings: Welfare Evaluation) [2014] 1 FLR 670 |
Balance-sheet approach: each option evaluated in the detail necessary and compared side-by-side. |
Invoked to assess whether the trial judge undertook a proper comparative analysis; Court examined judgment for evidential balancing even absent a formal table. |
| Re W (Adoption: Approach to Long-Term Welfare) [2017] 2 FLR 31 |
Warning against treating phrase "nothing else will do" as a shortcut; it must be part of full welfare evaluation. |
Used to critique any over-reliance on the phrase and to require comprehensive welfare analysis. |
| Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146; [2014] 1 WLR 563 |
Context for proper use of "nothing else will do" and full welfare evaluation. |
Referred to in assessing the proper analytical approach and cautioning against a free-standing shortcut test. |
| Piglowska v. Piglowski [1999] UKHL 27; [1999] 1 WLR 1360 |
Principle on reading a judgment as a whole rather than isolating passages for narrow textual analysis on appeal. |
Applied to reject an overly narrow textual critique of the trial judge's reasoning and to assess the judgment in its entirety. |
| D J & C Withers (Farms) Ltd v Ambic Equipment Ltd (reported together with English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409) |
Authority on appellate review of lower court reasoning (reading judgment as a whole to follow line of reasoning). |
Cited to support that the appellate court may follow reasoning in the judgment as a whole even if structure was not in ideal form. |
| Re N (Refusal of Placement Order) [2023] 2 FLR 642 |
Balance-sheet is helpful but not mandatory; an aide-memoire rather than a required format. |
Used to support that lack of a formal balance-sheet format does not automatically result in error if the judgment shows adequate balancing. |
| Re F (A Child) (International Relocation: Welfare Analysis) [2015] EWCA Civ 882; [2017] 1 FLR 979 |
Observation that a balance sheet may assist but should not substitute for judicial judgment. |
Used to support that a balance-sheet is an aide-memoire and not an imperative. |
| Re T (Placement Order) [2008] 1 FLR 172 |
Even if adoptive placement may not be found, uncertainty is not by itself a reason to refuse a placement order; court must consider best outcome even if placement-finding is uncertain. |
Considered when assessing relevance of placement-availability evidence; trial judge treated availability as relevant but not determinative. |
Court's Reasoning and Analysis
The Court reviewed the trial Judge's reasoned judgment and the evidence before him. Key factual findings at first instance were: the care order was appropriate; Child was settled and securely attached in the current foster placement; Child had positive fortnightly contact with Mother; and there had been multiple earlier moves and proven neglect leading to proceedings.
The appellate Court identified two findings that materially influenced the Judge: (i) that Child was best placed in the current foster placement long-term; and (ii) that Child should have continuing direct contact with Mother not less than once each fortnight (subject to foster carers' capacity).
The Court analysed the Judge's application of law: the section 31 threshold had been conceded, and the Judge correctly treated the placement-order question as a welfare decision throughout life under section 1(2) ACA 2002, applying the "requires" standard as an imperative per Re P. The Judge considered comparative features of adoption and long-term fostering (legal stability of adoption; instability risks of fostering), relevant caselaw on post-adoption contact, and the balance-sheet approach but did not produce a formal side-by-side table.
The Court accepted that a structured balance-sheet analysis would have been preferable and would have reduced vulnerability to attack; nevertheless the Court found the judgment, read as a whole, showed adequate consideration of competing factors. The Court noted deficiencies in the Local Authority's case at first instance (late placement-order application; limited consideration of long-term fostering; inconsistent investigation of foster carers' willingness). The Court gave weight to the Children's Guardian's evidence that another move would be highly detrimental and to the foster carers' subsequent written confirmation that they were willing to care for Child long-term though not to adopt due to their ages.
The Court accepted the trial Judge's cautious assessment about the practical difficulty of finding adopters willing to accept the level of direct contact he required and that placement-availability evidence is a relevant factor, particularly in marginal cases involving an older child. On balance, the appellate Court concluded the Judge had not erred such that the appeal should succeed.
Holding and Implications
APPEAL DISMISSED
Holding: The appellate Court dismissed the Local Authority's appeal against refusal of the placement order. The trial Judge's refusal of the placement order and approval of the care order (with contact provision) was upheld.
Implications: Direct effect—Child remains subject to the care order and the Judge's decision that the current foster placement is the preferred long-term outcome (subject to local-authority approval processes for long-term fostering) stands. The Court emphasised that while a formal balance-sheet would have been preferable, the trial judgment, read as a whole, sufficiently addressed the competing welfare factors and did not amount to reversible error. The decision does not purport to establish a novel legal precedent beyond applying existing authorities to the facts of this case.
Document anonymised: personal names and identifying details replaced with role-based placeholders; all content derived from the provided opinion.
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