Judges dismiss appeal by council over making of section 26 order

In B-A, Re (Placement Order and Contact Order) [2026] EWCA Civ 356 (25 March 2026), Lord Justice Cobb, with whom Lady Justice Falk and Lord Justice Phillips agreed, said: “I have not been persuaded that the Judge fell into error in making the contact order in respect of the father's post-placement contact with C and D under section 26 ACA 2002 in this case. I would, as earlier indicated, dismiss this appeal.”

More than two years ago, the appellant local authority applied for care orders in the Family Court under Part IV of the Children Act 1989 (CA 1989) in respect of four children – A, B, C and D.

The final hearing of the applications was conducted by HHJ Lazarus (the Judge) in two phases: the first in June 2025 (leading to the first judgment – 'J1'), and the second in December 2025 (leading to the second judgment, 'J2').

By the time of the final hearing, applications for placement orders in respect of the younger two children of the family had additionally been issued under Part 1 of the Adoption and Children Act 2002 (ACA 2002).

The consolidated applications concluded with a number of final orders being made relating to placement and contact in December 2025, which marked the 94th week of the proceedings.

Cobb LJ noted: “It is against only one of the final orders, providing for limited face-to-face parental contact under section 26 ACA 2002 (a 'section 26 order') after placement for adoption, that the Local Authority now appeal.”

Permission to appeal was granted by King LJ in February 2026.

The appeal directly concerned only the younger two children, C and D.

Lord Justice Cobb noted: “This appeal focuses on a single, albeit significant, issue. In circumstances where all parties accept the welfare benefits of future face-to-face contact between a parent and children who are to be placed for adoption, the question arises: when is it appropriate for the court to make an order under section 26 of the ACA 2002, and when should the court instead record the parties' general intentions in a non-binding recital, which has the advantage of offering 'flexibility over the contact arrangements' (Re S at [80])?

“This is essentially a binary choice for a Judge. The caselaw which we have considered on this appeal (i.e., Re P, Re R and C and Re S) all relate to section 26 orders for post-placement contact between siblings, but the approach to such an issue articulated in those authorities applies in my judgment to a case concerning future parental contact without material adaptation.”

In the appeal, the local authority urged the court to conclude that the Judge erred in making a section 26 order.

It submitted that the Court of Appeal should discharge the order, and replace it with a recital (reflecting intentions to arrange post-placement contact) on the face of the order.

The father opposed the appeal.

Outlining the background to the case, Cobb LJ said: “The care proceedings were launched on the back of increasing Local Authority concern about the mother's serious and complex mental ill-health, her neglect of the children, her emotional abuse of the children, and her generally chaotic life. […] She has been depressed and suicidal.....

“Her relationship with the father of A and B was difficult and conflictual; private law proceedings between them concerning A and B were said to be 'acrimonious'.”

He continued: “The mother and father commenced their relationship in or about 2021. Their relationship was also volatile. The mother made a number of serious allegations of abuse against the father, although these were not pursued within the proceedings and no findings have been made.

“The father, now aged 62, is a great deal older than the mother; he has a significant learning disability, functioning in the extremely low range of adult intellectual ability with some underlying developmental disorder. He is said to be a "very vulnerable" man, who cannot read or write. The Judge commented ([J1][108]) that 'he comes across as extremely well meaning, a very pleasant personality... but his words and meanings were occasionally unclear, and this all fitted with the picture that I have gained of an extremely good-hearted somewhat compliant but cognitively challenged person, who loves his children very much' ([J1][109]).”

Throughout the proceedings in the Family Court, the father was supported by an intermediary.

Cobb LJ acknowledged that he has enjoyed “regular contact” with C and D.

The Judge concluded the proceedings in December 2025 by making a care order in relation to A on the basis that she would remain in foster care; the Judge provided for B to live with his father under a supervision order.

A care order and a placement order were made in relation to C and D, on the basis that they would be placed – ideally together – in an adoptive home.

As to post-placement contact between C and D and their mother and separately their father, the Judge said:

"[181]… The mother does not seek a contact order and nor do the maternal grandparents. Mother does not do so recognising the potential impact if there were such an order in her favour on placement finding.

“[182] However, [the father] is in a different category, and an order is sought for him. His relationship with his sons is warm and positive, and they clearly know and love him dearly. He does not pose the same emotional risks as the mother. He has significant cognitive issues: he is illiterate, and he has required intermediary support. And unlike the mother he has a positive and cooperative attitude, which weighs in favour of contact taking place and assists with encouraging prospective adopters in understanding that. However, he will be grossly disadvantaged by his cognitive impairment, and therefore [C] and [D] will be grossly disadvantaged, if he then has to attempt to navigate the administrative demands of attempting to seek and enforce direct contact, in the absence of there being any order. And indirect contact as proposed will be an extremely poor, inadequate and unlikely mitigation for the harm and loss to the boys in these circumstances where their father has these difficulties but is their sole connection to their paternal identity and a significant and valuable relationship.” (CoA judge’s emphasis).

Lord Justice Cobb said the final order contained a number of recitals, including a recognition of the "the primary aim" which was "to identify a placement for [C] and [D] together, it being in their welfare interests that they should be placed together if at all possible". The final order contained the contact orders, including the order under challenge ((7) below):

“(5) The [Local Authority] must make sure that the children [C] and [D] have face-to-face contact with their older siblings [A] and [B] on at least four occasions each year.

(6) If [C] and [D] are placed for adoption separately to one another, the [Local Authority] must also make sure that the children have additional face-to-face contact with one another on at least two occasions each year.

(7) The [Local Authority] must make sure that the children [C] and [D] have face-to-face contact with their father … on at least one occasion each year".”

The local authority relied on the following four grounds of appeal:

i) Having determined that the welfare outcome that best met the needs of C and D was adoption, and having endorsed the professional consensus that it was overwhelmingly in the children's best interests, if possible, for them to be placed together, the Judge failed to carry out a welfare analysis that properly took into account the comparative advantages and disadvantages of making a contact order in favour of the father;

ii) The Judge failed to give adequate weight in her analysis to the unchallenged evidence of the family finding social worker, who told the court that a requirement for parental contact would likely result in a fairly drastic reduction in the pool of prospective adopters, and whose written evidence was that the making of a contact order was likely to halve the pool of prospective adopters;

iii) The Judge failed to properly apply the 'no order' principle under section 1(6) of the 2002 Act in circumstances where the Local Authority was, in principle, willing to support face-to-face contact between the children and the father, placing undue weight on the difficulties that the father would have in navigating the administrative demands of seeking out contact with the children;

iv) The Judge failed to give adequate reasons for departing from the recommendations of the Guardian and the allocated social worker, both of whom recommended that the Court should not make a contact order under Section 26 of the 2002 Act.

Analysing the case, Cobb LJ said: “The single strongest factor which pointed towards the making of a section 26 order in relation to the father was the Judge's dual assessment of: (a) the central importance of some level of meaningful contact for the boys with their father in the future, coupled with (b) her concern that the father 'would fall at the hurdles of having to navigate the system given his vulnerabilities' if no order were made ([J2][184]).

“[…] This was a case in which the Judge appeared to accept that a section 26 order was 'necessary' (she referred to 'an established need' [J2][184]) rather than merely 'desirable'.”

Cobb LJ continued: “It is well-recognised that in evaluative decision-making such as this, two different judicial minds might reach different decisions without either being appealable. In this case, it is at least arguable that there was no right answer; each of the two outcomes (a section 26 order or a recital) had its inherent benefits and drawbacks.

“However, I respect the fact that the Judge saw a real need in this case for the court to take responsibility for making a contact order; this is a decision which this Court has, through earlier caselaw, urged her to take.

“[…] I can identify no flaw in the judge's treatment of the issue, nor is there is any gap in her logic or lack of consistency. After all, down the line (and indeed consistent with the approach taken by the Judge) it will be for the Family Court to make the necessary final orders, either for adoption, or for revocation of the placement orders if the children are not to be adopted. At that point, again it will be for the court, before making any adoption order, to decide, in accordance with section 46(6) of the ACA 2002, what ongoing contact C and D should have with their father, not for their prospective adopters or the Local Authority to do so (see again Re P at [149] and [151]). The Judge fulfilled the expectations placed upon her by statute and authority, and did so in a manner which in my judgment cannot fairly be impugned.”

He dismissed the appeal on Grounds 1 to 3.

Turning to ground 4, Cobb LJ said: “As to Ground 4, the professionals' concern about the imposition of a section 26 order was focused on the impact of such an order on family finding; this concern was not in my judgment particularly securely rooted in the evidence given by the family finder for the reasons which I have outlined above. The Judge expressly accepted the professional opinions insofar as they related to pure welfare issues, i.e. 'the analysis of the social worker and the Guardian as to the benefits of adoption' ([J2][174]); in this regard, she was right to complement the Guardian for being able to 'grasp and address the complexities and sensitivities in this case'.

“But when it came to her consideration of the range of orders, and the selection of the right order on the facts of this case, this was primarily judicial territory. […] While I accept that it may have been "courteous" (Re J) for the Judge to have explained why in the end she did not accept the professional views of the social worker and Guardian in relation to the making and form of order, her failure to do so did not in my judgment vitiate the decision.”

Dismissing the appeal, Cobb LJ concluded: "For the reasons set out herein, I have not been persuaded that the Judge fell into error in making the contact order in respect of the father's post-placement contact with C and D under section 26 ACA 2002 in this case.”

Lady Justice Falk and Lord Justice Phillips agreed.

Lottie Winson