Judge was not wrong to prefer long-term fostering, even if he did not follow recommended format for balancing factors: Court of Appeal

In S, Re (Foster Care or Placement for Adoption) [2026] EWCA Civ 47 (05 February 2026), Lord Justice Cobb concluded that although the judge's analysis and reasoning would have been “considerably more structured, and altogether clearer”, had he exercised a side-by-side balance sheet model, he was “not wrong to have preferred long-term fostering over adoption”.

The case concerned S, a girl aged 4 years 8 months.

S is the subject of a care order made under the Children Act 1989 in favour of the local authority and is currently in foster care.

When making the care order in respect of S in September 2025, HHJ Tolson KC (the Judge) separately refused the local authority's application for a placement order under section 21 of the Adoption and Children Act 2002 (ACA 2002).

It was against the refusal of the application for a placement order that the council appealed.

Cobb LJ noted: “The focus of this appeal is whether the Judge was wrong to reject the Local Authority's application to seek authorisation to place S for adoption, where the only realistic alternative was a long-term placement in foster care.”

Lord Justice Cobb observed that the judge's conclusions were materially influenced by two findings, namely that:

i) "[S] is best placed in her current foster placement in the long-term"

ii) It would be in S's best interests for her to have continuing direct (face-to-face) contact with her mother "not less than once each fortnight".

Cobb LJ said: “[The Judge] nonetheless gave the Local Authority limited discretion to reduce the frequency to once each month ‘in the event that the current foster carers cannot support more frequent contact’ (judgment [1d]).”

In his judgment, HHJ Tolson KC outlined the key factors which had informed his preference for long-term fostering for S compared with adoption.

He referred to the fact that S was "happy and settled where she is" and the "catastrophic" effect on her ability to trust adults and transfer affections were she to be required to move.

He raised specific concern about the "substantial loss" to S if her contact with her mother was confined to only one visit per year.

Before considering the grounds of appeal, Cobb LJ drew together the submissions on relevant caselaw under the following headings: adoption formalities; adoption vs long-term fostering; adoption and contact; balance sheet exercise; relevance of the difficulties of finding an adoptive placement.

He said: “The contrasting characteristics of adoption compared to long-term fostering are well-rehearsed in existing caselaw.

“The core difference between adoption and fostering is one of legal status and identity for the child; adoption provides the strongest legal security, vesting parental responsibility in the adopters, in contrast to fostering which offers a significantly different legal status for the child, for whom parental responsibility remains shared between the local authority which holds the care order (which maintains enduring oversight and monitoring of the placement) and the birth parents.

“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. It has often been said that adoption offers a greater sense of 'belonging' for the child (see for example Black LJ as she then was in Re V (Long-term Fostering or Adoption) [2014] 1 FLR 670 at [96]), which is achieved by the mutual commitment of adoptive parents and child.”

Cobb LJ continued: “[…] The caselaw to which we were taken also rightly emphasises the importance of the 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 (see McFarlane LJ (as he then was) in Re G (Care Proceedings: Welfare Evaluation) [2014] 1 FLR 670, at [54]) ('Re G').”

The local authority’s grounds of appeal were as follows:

i) Ground 1: The Judge was wrong in that he failed to undertake any, or any adequate, comparative analysis of the advantages and disadvantages of long-term foster care and adoption.

ii) Ground 2: The Judge was wrong to have concluded that the current foster placement was available as a long-term placement and/or was 'at least highly likely' to continue meeting S's needs throughout the remaining 14 years of her minority and into adulthood.

iii) Ground 3: The Judge erred in failing properly to recognise, and/or properly to weigh in the balance, the advantages of an open adoptive placement for S.

iv) Ground 4: The Judge was wrong to have concluded that the local authority / adoption agency:

a) Was unlikely to find a suitable adoptive placement for S;

b) Was not committed to finding an open adoptive placement for S.

Further, and in any event, the Judge erred in placing undue weight on these conclusions in his welfare analysis.

v) Ground 5: The Judge was wrong in that he failed to give adequate reasons for departing from the professional recommendations of the Local Authority and the Guardian that adoption was the outcome which most appropriately met S's welfare best interests.

Discussing the case, Cobb LJ observed that by September 2025, when the applications were before the court, permanence planning for S in a substitute family had “become complex”.

He said: “Several factors rendered this task problematic: S was nearly 4½ years old, and thus older than many children placed for adoption; she had experienced a disrupted early life, having suffered proven neglect in the care of her mother; she had moved several times since her removal from her mother's care in May 2024, and this had been "traumatising" to her (as described in the local authority's final care plan); she had a need for emotional and legal stability; she enjoyed a positive ongoing relationship with her mother, who was for reasons not challenged in this appeal unable to care for her; she was settled and happy in her current short-term foster placement.

“[…] The realistic permanent placement options for S were therefore adoption or long-term fostering. There were, unsurprisingly, pros and cons of both options.”

Cobb LJ accepted counsel for the local authority’s primary submission that given the binary choice, it was “at the very least highly desirable” that HHJ Tolson should have undertaken a side-by-side comparative analysis of the competing options - identifying the factors relevant to an adoption application as against long-term fostering, especially long-term fostering by the current foster carers.

Lord Justice Cobb said: “The Judge did not perform the side-by-side balance sheet analysis. That is clear. It would have been far better had he done so. It seems to me that his failure to do so may at least in part have been attributable to the fact that the Local Authority had only very shortly before the final hearing issued its application for a placement order, and its plan for the adoption of S was still evolving in material ways as the evidence in the final hearing unfolded. Moreover, the Local Authority evidence was in itself defective (as the Judge pointed out) as the social worker himself had ostensibly considered "no other option than to recommend a care plan of adoption" for S and had not given proper consideration to the merits of long-term fostering.”

He continued: “However, overall, the failure to generate such a balance sheet did not in my view fatally undermine the Judge's ultimate decision. I am satisfied that it is possible to identify within the judgment as a whole the Judge's consideration of the competing factors relevant to each of the options, and this legitimately enabled him to express the view that placement for adoption should be preferred only when 'nothing else will do'.”

Cobb LJ acknowledged that the judge's analysis and reasoning would have been “considerably more structured, and altogether clearer”, had he exercised the balance sheet model.

He said: “The simple but effective discipline of a side-by-side analysis would have, I suggest, assisted the Judge to clearer thinking, and would have rendered his judgment less vulnerable to challenge; this did not need to be done in tabular form, but may have been helpful if it had been so presented. Notwithstanding this deficiency of the judgment, it is possible to identify within it proper reasons for his conclusions which sufficiently cogently justify his decision.”

Cobb LJ observed that HHJ Tolson “made clear” that he had taken account of the relatively insecure legal status of long-term fostering compared with adoption. “Specifically:

i) He spoke of the "relative merits" of the options and "in particular on the instability of [foster care]". (Court of Appeal judge’s emphasis)

ii) He recognised and gave voice to the "poor outcomes for children in care" (judgment [18]); and

iii) He acknowledged the "background norm" of the threat of harm (by placement breakdown) in fostering and adoptive placements (judgment [38c]).”

On ground 1, Cobb LJ concluded: “Overall, I remind myself that the balance sheet is an "aide memoire", and/or a "route to judgment" […] it is not the judgment itself. In this case, having studied the judgment as a whole, I have concluded that the Judge adequately covered the relevant pros and cons of the options before him.”

Turning to ground 2, Cobb LJ said: “At the Issues Resolution Hearing, three weeks before the final hearing, the Judge had directed the parties to obtain the views of S's current carers, and specifically whether they would be willing to care for S on a long-term basis under a care order or under adoption. This plainly flagged early judicial thinking as to possible outcomes for S. The Children's Guardian and social worker spoke to the foster carers; in the Judge's view, the former investigated this ‘more closely’ than the latter.

“From the evidence presented to him, the Judge assumed that the current foster carers would be ‘highly likely’ to go on meeting S's needs ‘given the guardian's view of their commitment to her, which I accept as accurate’ (judgment [30b]).

“The Judge later said that ‘there are much stronger indications than usual that long-term foster carers – that is to say her current carers – will continue in their relationship with [S] beyond her minority’ (judgment [38g]). The Judge's characterisation of the foster carers as ‘long-term’ was wrong; they are approved as short-term carers only.” (Court of Appeal judge’s emphasis).”

Counsel for the local authority contended that HHJ Tolson was “not entitled” to reach these conclusions on the evidence presented at the final hearing.

Cobb LJ accepted the submission that the judge 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.

He said: “However, the more recent researches have revealed that the foster carers are in fact prepared to offer a long-term home for S (‘we would be willing to care for [S] for as long as we are able, potentially throughout her entire childhood’) – a view aligning with the earlier report of the Children's Guardian. While that placement cannot be confirmed as necessarily ‘available’ for S given the outstanding requirement that they obtain local authority approval as long-term carers, the recently filed evidence effectively defuses Ground 2.”

Although the local authority had only very late in the day advocated open adoption for S, by Ground 3 it criticised the judge for insufficiently considering its "advantages".

Analysing this ground, Cobb LJ said: “The benefit to S of maintaining a proper relationship with her mother through contact was central to the Judge's overall decision, and he reflected the significance of this relationship in the analysis section of his judgment.

“The Judge described the prospect of S losing her relationship with her mother as ‘highly likely to be detrimental to [S]’.

“[…] The Judge therefore set out his optimal contact 'template' in the final order; this reflected what I assess as the ‘necessary’ arrangements for future contact (rather than the merely ‘desirable’). The Local Authority has not sought in this appeal to argue that this contact template is flawed. [Counsel for the local authority] rightly acknowledges that the quality and frequency of the current contact were obviously relevant matters to be factored into the overall welfare analysis when selecting the type of placement for S.

“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 S which would accept this level of contact would – even in the ‘modern world’ of increased post-adoption contact – be too formidable a task.”

Ground 3 was rejected.

Ground 4 raised two linked points: First, the local authority's ability to find a placement for S, given all the circumstances, and secondly the commitment of the local authority to do so. (Court of Appeal judge’s emphasis).

Cobb LJ said: “It is said that the Judge was unduly pessimistic in relation to the first point, and unfair in his assessment of the second. I do not agree.

“[…] Notwithstanding the ‘clear shift’ over recent years towards post-adoption contact, the Judge was entitled in my view to be doubtful of the chances of finding a placement which would accept contact at the level proposed by the Judge, particularly given the statistics offered by the Team Manager of the regional adoption agency in her statement filed only part-way through the hearing.”

Ground 4 was also rejected.

Finally, turning to ground 5, Cobb LJ was satisfied that the Judge “accurately reflected the range of professional views in his judgment” - noting that HHJ Tolson “quoted widely” from the Children's Guardian's report, and provided a number of extracts from the social worker's final evidence.

Concluding the case, Cobb LJ said: “This finely balanced case turned, as most such cases do, on its individual facts. The Judge was right to view S's situation as unique, and he explicitly focused on ‘the particular circumstances of this little girl’. While the case law reviewed above is illuminating and of considerable assistance in setting the framework in which the Judge's decision was to be made, and this appeal must be considered, the Judge's welfare assessment had to be informed by the evidence particular to S. Having balanced up those factors adequately (as I have found that he did), albeit not in the recommended format, I am satisfied that the Judge was not wrong to have preferred long-term fostering for S over adoption.

“As it turns out, he was further entitled to conclude that the current carers would want to, and would probably be able to, care for S for the long-term, and that her interests would be best served if this could be achieved. The Judge cannot thus be faulted for concluding that S's welfare did not 'require' the dispensation of her parents' consent to her placement for adoption.

“I do not consider that the Judge fell into error in refusing the application for a placement order. As we informed the parties at the conclusion of the hearing, I conclude that it is right to dismiss this appeal.”

Lord Justice Lewis and Lord Justice Lewison agreed.

Lottie Winson