Getting the balance right – the importance of a thorough evaluation of competing options following Re S (Foster Care or Placement for Adoption) [2026] EWCA Civ 47

The recent decision in Re S provides a helpful illustration of the careful balancing exercise which must be undertaken when comparing options of adoption and fostering.

Background

Proceedings concerned S, aged 4 years and 8 months. Concerns arose about the mother’s parenting when S was about 2 years old, prompting Local Authority involvement. After the identification of bruising on S’s inner arm which was believed to be non-accidental, public law proceedings were brought. However, the Local Authority did not pursue findings about the origin of the bruising. 

In the sixteen month period between commencement of proceedings and the final hearing, S only spent four months in her mother’s care, with close supervision in a residential assessment. The residential placement ended following negative reports about the mother’s ability to care for S, and S moved to live with a maternal aunt and uncle. Unfortunately, they could not offer the care S required. 

In early May 2025, S was placed in foster care, where she remained at the time of the proceedings. The mother, at the time of the final hearing, had been seeing S twice per-week with foster carers supervising one of those visits. By the time of the final hearing in late September 2025, S was observed to be well-settled and emotionally secure with her foster carers. The Local Authority applied for a placement order two working days before the final hearing. At the commencement of the hearing, the Local Authority sought a closed adoptive placement, although this position was revised to open adoption with annual face-to-face contact following the social worker’s oral evidence on the first day. The Local Authority’s final care plan proposed to search for an adoptive home for six to nine months, following which they would place S in long-term foster care and explore the possibility of S being placed in long-term foster care

At the final hearing HHJ Tolson KC made a care order but refused to make a placement order, preferring long-term fostering for S with contact with her mother at once per fortnight. The Local Authority sought to appeal the refusal of the placement order. Permission was granted on 1 December 2025 by Peter Jackson LJ. 

Grounds of Appeal

Ground 1: failure to undertake an adequate, comparative analysis of long-term foster care or adoption – the ‘balance sheet’ approach

The Court of Appeal recognised that the applications presented to the court “offered a stark choice – either the Judge approved the application for a placement order for adoption on the basis of the local authority care plan, or he refused it on the basis that S’s future would be better served by foster care.” ([54]). It is integral therefore, the Court made clear, that when reaching any such decision the tribunal undertakes a consideration of competing factors relevant to each option.

HHJ Tolson KC, however, failed to undertake such a “side-by-side comparative analysis” ([55]). Nevertheless, it was not fatal to the judge’s decision. It was still possible to identify the competing factors which the Judge had weighed in coming to his decision. In particular, the Judge highlighted the ‘box analysis’ undertaken by the social worker and evaluated the Guardian’s analysis of the pros and cons of the available options. Indeed, the Judge had reproduced substantial elements of this within the judgment itself. Although not in tabular form, the Judge’s reasoning was evident in the analysis he had undertaken. Thus, Cobb LJ made clear “a failure to set out the options in a side-by-side balance sheet analysis … will not pave the route towards certain success on appeal.” ([42]) What matters is “whether a judge actually failed to balance the factors in such a way as to lead them into error” (ibid). 

Ground 2 – consideration of availability of current foster placement as a long-term placement

The appellants contended that the Judge was not entitled to reach the conclusion “that the carers have expressed a settled desire to care for [S] during her minority” (original judgment [38i]). It was argued that the Judge’s view was formed on the assumption that the current foster carers would be highly likely to continue meeting S’s needs throughout her remaining minority and into adulthood. The foster carers had however only been approved as short-term carers.

Whilst the Court determined that the Judge had “expressed a higher degree of confidence in the long-term potential for the current placement than the evidence at the hearing, taken as a whole, truly permitted” [69], following Peter Jackson LJ’s direction the foster carers had expressed a willingness to provide long-term care for S. This therefore in effect neutralised the second ground of appeal.

Ground 3 – insufficient consideration of advantages of open adoption

As set out above, the Local Authority changed their position as to one in favour of open adoption following the first day of the final hearing. S and her mother, at the time of the final hearing, were seeing one another twice per week. The Judge acknowledged that the mother had been managing the contacts well, with professionals praising the relationship between them. The Judge had recognised that the loss of S’s relationship with her mother would be “highly likely to be detrimental”, considering “that the loss may be irreplaceable” (judgment [38a]).

The Judge set out a template for ‘optimal contact’, with fortnightly contact being deemed the appropriate level.However, the Judge directly grappled with the practical reality that even in a “modern world” of increasing post-adoption contact following Re S (Placement Order; Contact) [2025] EWCA Civ 823, that level of contact may very well be too substantial an inhibition on the potential to find an adoptive home ([71]). The Judge was accordingly justified in reaching his view. 

Ground 4 (a) – the negative assessment of the Local Authority’s ability to find a placement for S

The Local Authority argued that the Judge was unduly pessimistic in relation to this ground. The Guardian’s evidence set out that contact at six times per year would be appropriate, but that it would be “highly unlikely” that purported adopters would be agreeable to that level of contact (judgment [33]). That frequency, it should be noted, was substantially less than that proposed by the Judge.

Reinforcing the Judge’s pessimism was the statistical evidence of the Team Manager of the regional adoption agency. As a result, the Judge made it clear that he “accept[ed] that the (un)likelihood of a placement is not a bar to a placement order, but it must be a relevant factor, especially in a child who, it is common ground, needs to settle (or rather remain settled) now” (judgment [40d]). The Judgewas, again, therefore entitled to reach the view he did.

Ground 4 (b) – the negative assessment of the Local Authority’s commitment to finding an open adoptive placement

The Court of Appeal set out three material facts at which substantiated, and indeed justified, the Judge’s view. They are reproduced in full ([75]):

i) The authority’s plan prior to the start of the hearing had been to find a closed adoption placement for S under the placement order; only on the second day of  thehearing did it change its tune – prompting the Judge’s remark “it has the feel of forensic necessity about it” (judgment [14]);  

ii) The final evidence of the Local Authority showed that it had “… not seriously considered the option of long-term fostering” for S (judgment [14]); and  

iii) The Local Authority had known nothing of the circumstances in which the  current foster carers had adopted their children; this showed that “careful thinking on the relative merits of adoption against long-term foster care has been lacking” (judgment [18]).

Ground 5 – failure to give adequate reasons for departing from professional recommendations

Cobb LJ set out that, in coming to his decision, the Judge appropriately addressed the breadth of professional views which he was presented with. He did so by:

• Quoting extensively from the evidence of the Guardian and the social worker’s final evidence.

• Considering the depth, or lack thereof, of the Local Authority’s research into the position of the current foster carers

• Underlining the unbalanced review of the Local Authority in failing to consider long-term fostering either adequately or at all

The Court highlighted that the Local Authority’s change of position during the course of the hearing “redeemed its professional stance to some degree” ([76]), but the Judge was fair in his treatment of the matter as a finely balanced one. Indeed, the Court highlighted that the matter was so finely balanced that by the time of the appeal the Guardian’s position had “tilted onto the other side” (ibid).

Conclusion

What matters in each individual case is the clarity with which the reasoning underpinning any decision is set out, paired with a balanced evaluation both by the relevant professionals and the tribunal as to the available options. In this respect, it is worth setting out in full – as Cobb LJ did – the words of Peter Jackson LJ in Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948; [2025] 1 FLR  815:

“[14] In many cases about children there are a number ofpossible plans. One judge might choose one, another judge might choose another. So long as the judge takes the correct legal approach, explains his or her thinking, and makes a decision that will work for the child, that is fine. We will not allow an appeal just because we might think that another possible plan would have been better. We can only step in if we have been shown that the judge did not approach the decision correctly or explain it properly, or if the judge’s chosen plan will not work”.  

Practical Takeaways

When considering the viability of foster care or adoption:

• Do not simply compare the options in principle

• Adopt a balance sheet approach to provide a structured and detailed analysis of available options as a helpful aide memoire 

• Despite the advances towards increased post-adoption contact, any welfare assessment must be underpinned by the evidence particular to the relevant child

• Fully explore the views of current foster carers and the availability for potential provision of long-term care