Introduction
In the most recent in a slew of cases which consider adoption vs long-term fostering, Cobb LJ, giving the leading judgment, provides helpful guidance on a number of relevant principles of general application, including (a) Adoption formalities; (b) Adoption vs long-term fostering; (c) Adoption and contact; (d) Balance sheet exercise; (e) Relevance of the difficulties of finding an adoptive placement.
This appeal focused on whether the judge was wrong to reject the local authority’s application for a placement order for a 4-year-old child where the only realistic alternative was long-term foster care, particularly where post-order contact was recommended and the child had formed strong attachments with her current foster carer, with whom she could stay.
This case provides an important reminder to establish whether a child or children’s current carers are committed to continue to look after a child/ren long-term.
Background
This case concerned a child (‘S’) aged 4 years and 8 months at the time of the hearing under appeal. The child was subject to proceedings for 70 weeks and by the time of the final hearing she was well-settled and emotionally secure in the care of her foster carers.
The local authority applied for a placement order shortly before the final hearing, initially seeking a closed adoption with letterbox only contact between the child and her birth parents. After the social worker gave evidence, the local authority revised their care plan to an open adoption with annual face-to-face contact with the mother and letterbox contact with the father, alongside a six-to-nine-month search for prospective adopters. Failing that, a care plan of long-term foster care.
At the time of the final hearing the local authority understood that the child’s current foster carers were willing to care for the child until a long-term placement for her was found. If the child were to remain in long-term foster care, the local authority proposed that contact between the child and her mother take place six times per year.
The mother sought for the child to return to her care, and if not the child should continue to be cared for by her current foster cares. She and the father were opposed to adoption.
The Children’s Guardian did not support the child returning to the mother’s care and recommended that the child be placed for adoption, although “expressed the view that it would be “very difficult”, even “catastrophic” (judgment [31]), for S if her current foster placement were to end”[i]. The Guardian supported a six-to-nine-month adoptive placement search and post-adoption contact of 6 times per year.
The Guardian’s position if the child were not to be placed for adoption was that the child’s placement with the current carers should be ‘explored further’ given that they had told him “that “they would wish to be considered as long-term carers”: “they would be willing to consider [S] remaining with them on a long-term foster basis”.
At the conclusion of the final hearing the judge refused the local authority’s application for a placement order, found that the child was best placed in long-term foster care with her current foster carers who would be long-term carers for her, and that it would be in her best interests to have direct contact with her mother not less than once each fortnight.
The judge at first instance held that whilst there was common ground that the foster carers had expressed an interest in caring for the child long-term, the strength of that expression was not common ground. The guardian investigated the issue more closely, but the judge found that the investigation of the local authority was “perfunctory”, the local authority had not seriously considered the option of long-term fostering[ii] nor specifically considered the position of these current foster carers as long-term carers for this child.
The judge considered statistics provided relevant to family finding for adoption (there were nine times as many children waiting to be adopted as there were adopters) and accepted “that the (un)likelihood of a placement is not a bar to a placement order, but it must be a relevant factor”[iii].
The appeal
Relevant principles
Cobb LJ helpfully drew together a number of legal requirements and principles under the following discrete headings:
(a) Adoption formalities [32-33];
- Where a local authority is satisfied that a child who is the subject of an application for a care order “ought to be placed for adoption”, the authority is under a duty (i.e. it “must”) “apply to the court for a placement order”[iv].
- The application for a placement order is ultimately determined by the court by reference to the subject child’s welfare “throughout” their life[v].
- However, before considering the child’s welfare, the court has to be satisfied:
- The court cannot dispense with the consent of the parent unless the court is satisfied that “the welfare of the child requires the consent to be dispensed with”[viii]. ‘Requires’ in this context has a “connotation of the imperative”[ix].
(b) Adoption vs long-term fostering [34-35];
- Both domestic law and Article 8 of the ECHR require a high degree of justification before dispensing with consent to adoption can be endorsed as being “necessary” and proportionate or “required”[x].
- A useful review of the contrasting characteristics of adoption compared to long-term fostering can be found in Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948.
- The core difference between adoption and fostering is one of legal status and identity for the child and it is well-recognised that the legal stability offered by adoption begets emotional security for the child and promotes the child’s sense of permanence in their forever home.
(c) Adoption and contact [36-39];
- Post-adoption direct contact between the birth family (parents and/or siblings) and the adopted child is now much more common than it was even a decade ago; it is now embraced as a model for “the modern world” of adoption.
- At the point of making the placement order, contact orders may be made[xi].
- The scope for making contact orders, or something less than orders has been widely discussed by this Court in recent years[xii].
In this appeal, Cobb LJ held that the judge at first instance set out his optimal contact ‘template’ in the final order, which reflected the “necessary” arrangements for future contact (rather than the merely “desirable”). Having determined that regular (i.e., fortnightly) contact was the right level of contact, the Judge was entitled (indeed, it may be thought, bound) to conclude that finding an adoptive home for the child which would accept this level of contact would, even in the “modern world” of increased post-adoption contact, be too formidable a task[xiii].
Notwithstanding the “clear shift” over recent years towards post-adoption contact, Cobb LJ’s view was that the Judge was entitled to be doubtful of the chances of finding a placement which would accept contact at the level proposed by the Judge.
(d) Balance sheet exercise [40-42];
- The caselaw rightly emphasises the importance of a judge undertaking a balancing exercise in which “each option for the child is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives”; each option can then be compared, side by side, against the competing option or options.
- A failure to set out the options in a side-by-side balance sheet analysis in the manner described above will not pave the route towards certain success on appeal.
- The appellate court must always assess whether a judge actually failed to balance the factors in such a way as to lead them into error.
In this appeal, Cobb LJ held that the Judge at first instance did not perform the side-by-side balance sheet analysis. However, overall, the failure to generate such a balance sheet did not fatally undermine the Judge’s ultimate decision.
The court reminded itself that the balance sheet is an “aide memoire”, and/or a “route to judgment”[xiv]; it is not the judgment itself[xv].
(e) Relevance of the difficulties of finding an adoptive placement [43-44].
- The court reminded itself of the comments of Hughes LJ (as he then was) in Re T (Placement Order) [2008] 1 FLR 172. (at [17]): “… even if there is a real possibility that an adoptive placement will not be found, it by no means follows that adoption is not in the best interests of the child”.
- The court’s primary task is to make a decision as to whether adoption or fostering is right for the child as a matter of principle[xvi].
- However, “There may be cases at the margins where specific evidence will be necessary, examples being where the plan is for the adoption of a much older child”[xvii].
In this appeal, the local authority argued that the judge at first instance was unduly pessimistic in relation to the local authority’s ability to find a placement for the child, and was unfair in his assessment of the commitment of the local authority to do so. Cobb LJ did not agree[xviii].
The decision
When permission to appeal was granted by Peter Jackson LJ, he observed that “the information before the Family Court may leave room for doubt about the position of the current foster carers” in relation to their wish to continue to care for the for the balance of her childhood. Peter Jackson LJ gave a direction that the foster carers should: “… inform the parties and the court in writing as to whether or not they have made a commitment to care for S throughout her childhood, if permitted to do so”[xix].
The up-to-date views of the current foster carers were obtained by the local authority and were now before the Court of Appeal. The foster carers confirmed, following an approach to them after the final hearing, that they agreed that they would be willing to care for the child for as long as they are able, potentially throughout her entire childhood.
That confirmation of the foster carers’ position was not before the court at first instance, and Cobb LJ held that the Judge’s characterisation of the foster carers as “long-term” was wrong; they are approved as short-term carers only[xx]. However, given the recent update from the foster carers, that evidence effectively defused that relevant ground (Ground 2) of the appeal.
Cobb LJ reminds us that this case turned, as many do, on its individual facts[xxi].
Cobb LJ dismissed the appeal. Lewis LJ and Lewison LJ agreed.
[i] Re S (Foster Care or Placement for Adoption) [2026] EWCA Civ 47 at 16
[ii] Ibid at 21
[iii] Ibid at 30
[iv] Section 22(2) of the Adoption and Children Act 2002 (‘ACA 2002’)
[v] Section 1(2) of the ACA 2002
[vi] Section 21(2)(a)/(b) of the ACA 2002
[vii] Section 21(3)(a)/(b) of the ACA 2002
[viii] Section 52(1) of the ACA 2002
[ix] Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535
[x] Section 52(1)(b) ACA 20020); Lord Wilson in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33
[xi] Section 26(2)(b) and 27 of the ACA 2002 (as amended)
[xii] see Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535 especially [151]); Re B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29; and Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302
[xiii] Re S (Foster Care or Placement for Adoption) [2026] EWCA Civ 47 at 71
[xiv] See Re N (Refusal of Placement Order) [2023] 2 FLR 642
[xv] Re S (Foster Care or Placement for Adoption) [2026] EWCA Civ 47 at 67
[xvi] Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948 at [32]
[xvii] Ibid
[xviii] Re S (Foster Care or Placement for Adoption) [2026] EWCA Civ 47 at 72
[xix] Ibid at 4
[xx] Ibid at 69
[xxi] Ibid at 77
