Court of Appeal sets aside dismissal of application for placement order, finding welfare analysis by recorder “went awry”

In L (A Child: Placement and Contact Orders), Re [2026] EWCA Civ 639 (20 May 2026), Lord Justice Peter Jackson, with whom Lady Justice King and Lord Justice Bean agreed, concluded that the recorder’s welfare analysis “went awry” when he dismissed the local authority’s application for a placement order and made a care order instead.

The case concerned A, a young girl who had been in foster care since she was 11 months old.

In September 2025, an application for a placement order was made in respect of A, who was then aged 14 months.

In January 2026, by which time A was one-and-a-half years old, Recorder Calway dismissed the application and made a care order.

Lord Justice Peter Jackson noted: “The recorder judged that the importance for A of the sibling and parental bonds outweighed the benefits of adoption. He refused to make a placement order because he was not satisfied that these important relationships would be retained if an order was made.

“As I shall explain later, there are a number of difficulties with the process by which this conclusion was reached, and with the order that resulted. They arose from the recorder's endorsement of an outcome that none of the parties had promoted and that the court had consequently not investigated or analysed, leading to an order that contains no workable plan for A's future. This situation arose because no discernible weight was given to A's most pressing need, which was to have a home of her own for her childhood and beyond, and because the recorder underestimated his own power to secure the benefits of sibling contact for her.”

The parents in the case had been together for more than 15 years. They had four boys born between 2012 and 2018.

Lord Justice Peter Jackson said the significant history began in August 2022, when police attended a road traffic accident to find the parents and four children in a car with cannabis and £30,000 worth of cocaine.

"In November 2022, following a number of call-outs for domestic abuse incidents, the father was arrested for assaulting the mother. He then repeatedly breached bail conditions by contacting her and the children. The mother was considered to lack insight.

“Against this background, in March 2023 the local authority issued the first of two sets of care proceedings. The mother and children entered a refuge, returning to the family home in August 2023. The local authority sought the removal of the children, but that was not approved by the court. There continued to be difficulties in keeping the father away and the mother became pregnant with A.....”

Following further incidents, in April 2025, the local authority issued a second set of care proceedings and interim care orders were made.

In May 2025, after a two-day contested hearing, the children were removed to foster care.

An assessment of the family was carried out by a clinical psychologist. In a report in June 2025, he identified a history of chronic domestic violence, paternal substance misuse, neglect and poor home conditions, inconsistent and unsafe parental care, repeated separations and instability, unaddressed trauma, parental ADHD, and two children with ASD:

"In summary, the children's difficulties are not isolated incidents but rather the direct, cumulative outcome of a deeply chaotic, unsafe, and emotionally neglectful early childhood, compounded by unaddressed trauma and parental challenges."

Lord Justice Peter Jackson said the children's social worker between January 2023 and September 2025 developed a good working relationship with the family, and her extensive written evidence showed how well she came to know them.

"She carried out repeated assessments of the parents individually and as a couple, wrote a comprehensive 'Together and Apart' sibling attachment assessment in July 2025, and made a number of court statements, culminating in a final statement in September 2025. That statement concluded with an analysis of the options for the children. For the boys, she set out the advantages and disadvantages of a return to parents and of long-term foster care, and she firmly favoured the latter course. In A's case, her equally firm opinion was that long-term foster care was not appropriate.”

For A, the social worker refocused her analysis from the perspective of adoption.

She said: “Adoption is being sought for A because, at one year old, she is at a critical stage of attachment formation and requires legal and relational permanence to ensure her lifelong security and wellbeing. Foster care would provide stability in the short term, but it would not guarantee A the permanence and family identity that adoption can offer. Research consistently shows that timely adoption provides very young children with the best opportunity to form secure attachments, resilience, and stability into adulthood.”

The final hearing took place over six days in November and December 2025. The recorder had 2000 pages of written evidence, and he heard oral evidence from eleven witnesses, including the social worker, the clinical psychologist, the parents and the Guardian.

Lord Justice Peter Jackson observed: “The hearing was dominated by the question of whether the five children could safely be returned to their parents. The parents' case was that this should happen under a supervision order, either immediately or after a short further period of assessment. The mother offered to separate from the father, who was due to stand trial for the drug offences in January, if that would allow the children to return. No party contended that long-term foster care would be an acceptable outcome for A. The recorder reserved his decision.”

In a written judgment handed down in January 2026, the recorder noted a number of positives in relation to the parents, particularly the mother, but he doubted that they could remain separate for long.

He found that they both minimised what he described as their real problems. He considered the social worker to be an impressive witness and he accepted her evidence about the parents' ability to change. He agreed with her conclusion that no safe system could be devised for any of the children to return home at that time, or following any further assessment. He accordingly made care orders for the boys on the basis of the updated care plans.

Having made a care order in respect of the boys, he returned to consider A. He said: “In respect of A, I have another option to consider. Having decided that it is too risky for any of the children to live with the parents at this time, I am drawn to make a care order in A's case for the reasons set out above. Should I go on to make a placement order?

“I have given this very anxious consideration. I have considered the benefits of adoptions as set out in the evidence of the local authority and the Guardian. It would provide her with a forever family and stability. As a long term fostered child she would remain in the care system and be subject to all the bureaucracy and reviews with no certainty that her carers would remain the same.

“However, she would cease to be member of her birth family. There would be no guarantee of contact with her siblings and parents. The bonds are significant […] and will be at real risk of being lost if an adoption plan is endorsed.

“I have thought very carefully about these options for A. It's been a difficult and finely balanced decision, but one I am clear about.

“A's interest in remaining a member of her family outweighs the benefits of a placement order in my view. I am unable to be satisfied that her important relationships with her parents and siblings would be retained if a placement order was made.

“I will refuse the application for a placement order in A's case and make a care order. I judge that the importance of the sibling and family bonds outweigh in her case the benefits of adoption.

“That is my judgement."

The local authority appealed the decision on the following four grounds:

• The conclusion reached by the judge was not a case that was actively being put or explored as part of the trial.
• The judge failed to properly analyse the advantages and disadvantages of remaining in foster care as opposed to the permanence offered by adoption.
• The judge failed to carry out an analysis of whether the sibling and family bonds could be secured by way of post adoption contact orders.
• In rejecting the local authority's care plan for A, the judge was wrong not to invite the local authority to provide an amended care plan.

Analysing the case, Lord Justice Peter Jackson concluded that the recorder’s welfare analysis “went awry, both in substance and in structure”.

He said: “A stand-out feature of the welfare checklist was 'the child's particular needs'. A is an infant at a critical stage of attachment formation, and on any view the greatest of her particular needs was what [the social worker] described as 'permanence that is both legal and relational to support her healthy development into childhood and beyond': in other words, she needed a home and a family to grow up in. The need was identified by all the professional witnesses, and there was no reason to undervalue it. However, the judgment contains only a brief reference at [184] to 'a forever family and stability', describing it as a benefit rather than a need.

“In the same way, there was no robust assessment of how long-term fostering could meet A's need for permanence. No party promoted it, and such evidence as there was about it was all one way and uncontested. As [the social worker] said, foster care would provide stability in the short term, but it would not guarantee A the permanence and family identity of adoption.”

Lord Justice Peter Jackson observed that the court was not being confined to an 'either/or' choice. Instead, the professionals advocated 'both/and', whereby A has both the benefits of adoption and of a continuing relationship with her birth family.

He said: “If the court considered this unachievable, it had to explain and justify its disagreement before dismissing the local authority's application.”

He allowed the appeal and set aside the dismissal of the application for a placement order.

Lord Justice Peter Jackson continued: "In these circumstances we would only remit this application to the Family Court if we were for some reason unable to make a decision ourselves, for example because there was more than one realistically possible outcome, and further evidence was needed.

"Here, I can find no reason for remitting. We have the recorder's uncontested findings of fact and the core evidence that was available to him. Moreover, as is clear from my reasons for allowing the appeal, I have reached the view that there is only one possible way of discharging the court's statutory duty to make A's welfare throughout her life its paramount consideration, and that is to dispense with the parents' consent under s.52 ACA 2002 and to make a placement order now. The order is necessary and the interference with the family's Article 8 rights is proportionate."

On the issue of contact, the Court of Appeal judge said: "The substitution of placement order on appeal also occurred following successful appeals in Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948, and in Re R and C (above). In the latter case, this court also made a contact order under s.26(2)(b) ACA 2002, and in my view the facts of the present case call for a similar approach.

"I would make an order requiring the local authority to allow supported face-to-face contact between A and her siblings in accordance with the care plan, namely (a) at the current level of once a month until A is placed for adoption, and (b) thereafter and until A is adopted, four times a year. I would not make any order in respect of contact by either parent, but would approve the care plan which provides for them to have supported contact (a) at the current level of once a month until A is placed for adoption, and (b) thereafter and until A is adopted, face-to-face contact once a year and an exchange of letters and photos once a year. The making of an order in respect of sibling contact only reflects the Guardian's submissions to us, as recorded above. Given the uncertainties surrounding the parents' circumstances and their reaction to the outcome, the no order principle applies."

Lady Justice King and Lord Justice Bean agreed.

Lottie Winson