Post-placement contact – formalising contact with an enforceable order or leaving it to the local authority’s discretion?
Re B-A (Placement Order and Contact Order) [2026] EWCA Civ 356
Introduction
In public law proceedings, post-placement contact between biological parents and their children is guided by central principles and legal provisions:
Best Interests of the Child: The paramount consideration in all proceedings is the welfare of the child, and any contact arrangements must serve the child’s best interests.
Contact Orders: Courts can issue contact orders that specify the terms of contact between the child and their biological parents after they have been placed with prospective adopters under a placement order. This can include direct contact (face-to-face visits) or indirect contact (letters, phone calls).
Assessment of Risk: Before allowing contact, the court will assess any potential risks to the child, considering the parents’ history, and any previous concerns regarding the child’s safety and well-being.
Frequency and Nature of Contact: Decisions about how often and in what form contact will take place depend on the individual circumstances of the case, with the courts striving to strike a balance between maintaining familial bonds and ensuring the child’s safety.
Local Authority’s Role: The LA is typically responsible for facilitating contact and may propose contact arrangements which are considered to be in the child’s best interests.
Review and Modification: Contact arrangements can be reviewed and/or modified over time, reflecting any changes in circumstances, such as improvements in the parents’ situation or the child’s needs.
Overall, the aim is to support the child’s emotional well-being while ensuring their safety and security in a stable environment. Each case is assessed individually, based on the relevant facts, to determine the most appropriate arrangements.
In the recent case of Re B-A, the Court of Appeal (CoA) dismissed the LA’s appeal against a Section 26 Adoption and Children Act 2002 contact order made by HHJ Lazarus, providing for limited face-to-face parental contact after placement for adoption. In its decision, the CoA addressed issues related to the placement of a child with prospective adopters and the extent of contact between a child and their biological parents. It has highlighted the complexities involved in child welfare cases, specifically in balancing parental rights, safety and risk, alongside continuing emotional connections. The CoA has reemphasised the need for decision-making that serves the child/children’s best interests, while reflecting on the importance of, when appropriate, maintaining familial connections post-placement. This case reaffirms the careful approach required in the family court when considering placement orders and continued contact.
The facts
Over two years before the CoA’s decision, the LA applied for care orders under Part IV of the Children Act (“CA”) 1989 in respect of four children, A, B, C and D. At the time of the final hearing, they were 13 (A), 10 (B), 3 (C) and 2 (D) years old, respectively.
The LA had been involved in supporting the family for four years before issuing care proceedings, which were then initiated due to the LA’s increasing concern about the mother’s serious and complex mental ill-health (including being depressed, suicidal, having complex PTSD and a borderline and/or emotionally unstable personality disorder), alongside concerns of neglect, emotional abuse of the children, and her chaotic lifestyle. Separately, the relationship between the parents was also acrimonious and volatile, which had been evident in earlier private law proceedings. The mother had previously made serious allegations of abuse against the father; however, these were not pursued, and no findings were made.
In the public law proceedings, HHJ Lazarus heard the final hearing of the applications, which led to two judgments: the first in June 2025 (J1) and the second in December 2025 (J2). The LA had also made applications for placement orders regarding the younger two children, which had been issued under Part I of the Adoption and Children Act 2002. In December 2025, which was the 94th week of the proceedings, final orders were made both regarding placement and contact.
The Judge concluded the proceedings differently for the four children. A care order was made in relation to child A on the basis that she would remain in foster care, a supervision order was made for child B to live with his father, and care and placement orders for children C and D were made, for them to be placed for adoption. It was made clear that they should ideally be placed together.
Regarding post-placement contact, the biological parents’ positions differed. The mother did not seek a post-placement contact order between her and C and D; however, the father did. Of note, the father was not deemed to pose the same risk to the children as the mother, and this was an important factor in the case.
The final order contained the contact orders (pursuant to section 26), including: (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.
A central feature of the case related to the father being a “very vulnerable” man, who could not read or write, had a significant learning disability and was functioning in the extremely low range of adult intellectual ability, and had an underlying developmental disorder. This, alongside the analysis of him being an “extremely good-hearted somewhat compliant but cognitively challenged person, who loves his children very much’ ([J1] [109]) and that the father enjoyed “regular contact” with C and D (as noted by Cobb LJ), was inextricably linked to the both HHJ Lazarus’ and, later, the CoA’s decision.
The Appeal
“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” (Cobb LJ, [3]). The appeal related to children C and D only.
The LA relied on the following four grounds of appeal (summarised in the CoA Judgment [43]):
- Failed welfare analysis: As the court had determined that the welfare outcome that best met the needs of children C and D was adoption, endorsing the professional consensus that it was undeniably in the children’s best interests (especially if they could be placed together), the Judge failed to carry out a welfare analysis that properly accounted for the relative advantages and disadvantages of making a contact order in the father’s favour;
- Professional advice overlooked: The Judge failed to give adequate weight to the unchallenged social worker’s evidence that parental contact would likely cause a drastic reduction in the pool of prospective adopters;
- Violation of the ‘No Order’ principle: The Judge failed to properly apply the ‘no order’ principle (under section 1(6) of the 2002 Act) where the LA was willing to support face-to-face contact between the children and the father, placing undue weight on the father in terms of the difficulties he would have navigating the administrative demands regarding seeking out the contact;
- Adequate Reasons: The Judge failed to give adequate reasons for departing from the Guardian and allocated Social Worker’s recommendations that the Court should not make a contact order (the final care plan and the Guardian both proposed that the children and the father have continued contact following their placement for adoption, but opposed the making of a section 26 order).
The LA urged the court to conclude that the Judge erred in making a section 26 order and sought that the CoA discharge the order, and replace it with a recital (reflecting their intentions to arrange post-placement contact) on the face of the order. The father opposed the appeal.
Cobb LJ noted [48]: “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 his analysis, Cobb LJ stated: “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]). Cobb LJ noted that HHJ Lazarus had accepted that a section 26 order was ‘an established need’ [J2][184]) and not just ‘desirable’, recognising the father’s warm, positive relationship with the children, his cooperation with professionals, and fundamentally that his significant illiteracy and learning disability meant he would be “grossly disadvantaged” in navigating the necessary processes to maintain contact without a court order in place [182].
There was, therefore, a strong consideration and analysis that when the court applies its discretion under this responsibility, different judges would reach different decisions as to whether a section 26 order or a recital as to post-placement contact was the right route to take, with both having their requisite advantages and disadvantages.
Consistent with views in previous cases, the family finder within the LA opined that post-adoption parental contact would drastically reduce the pool of prospective adopters. However, this case brought into question whether this was materially affected only if a section 26 order were made, as opposed to prospective adopters being informed that the LA was committed to supporting, albeit limited, face-to-face contact per year with the father, only recorded on the face of the placement order by recital. This decision by HHJ Lazarus reflected the previous decision in S (Placement Order: Contact) [51], that where in the child’s interests future contact was necessary, it should be ordered regardless of whether it made the process of locating an adoptive family more challenging.
Once the court has made the necessary final orders, whether for a child to be adopted or otherwise, it is for the court to consider what, if any, ongoing contact should take place between that child and their biological parent(s) in accordance with section 46(6) of the ACA 2002. The CoA found no flaw in HHJ Lazarus’s decision or “any gap in her logic or lack of consistency”. It is for the court to take responsibility for this balancing exercise: it is not for the children’s prospective adopters or the LA to do so (Re P; [149] and [151]).
Having dismissed grounds 1 to 3, Cobb LJ approached ground 4 in respect of the professionals’ concern about a section 26 order impacting to such an extent on an order on family finding. Cobb LJ analysed that, despite the Judge expressly accepting these opinions when considering welfare issues, in terms of the range of orders available to her, this was firmly within judicial territory and by not explaining why she departed from the opinions, this did not impugn the decision.
Cobb LJ, in dismissing the appeal, with the agreement of Lady Justice Falk and Lord Justice Phillips, stated: “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.”
Conclusion
In applying recent authorities, where the children’s welfare needs require post-placement contact, even if this adds complexity to family finding, HHJ Lazarus made the correct order when considering the distinctive circumstances of this case. Each case turns on its own facts, hence the wide-ranging discretion afforded to judges, to enable tailored analysis and decision-making. Further, the CoA provided a reminder of the safety net offered by virtue of section 27(1) of the Adoption and Children Act 2002 that an application can be made to vary or revoke a section 26 order if this proved to be too significant an impediment to an otherwise suitable placement.
Ultimately, when assessing and balancing the benefits of continued meaningful contact between the children and their father, against the element of the father’s likely inability of being able to navigate the system due to his vulnerabilities, if this was only reflected in a recital, the CoA determined that a section 26 order was the correct order to make.
DoLs – a shift from formalism to realism?
T (Inherent Jurisdiction: Deprivation of Liberty) [2026] EWCA Civ 307
Introduction
Deprivation of Liberty Safeguards (DoLS) are an amendment to the Mental Capacity Act 2005 for England and Wales, ensuring that individuals in care homes or hospitals, who lack capacity to consent, are not deprived of their liberty without legal authorisation and protection. These safeguards ensure the restriction is necessary and in the person’s best interests.
As DoLS do not apply to children under 18, in public law cases involving children needing secure care, DoL Orders via the High Court’s inherent jurisdiction, or secure accommodation orders under Section 25 of the Children Act 1989, are used. This is when children are at risk of significant harm, and restricted freedom is required to protect them and/or others.
The facts
A 17-year-old child (“T”) had been in care for seven years. He had complex needs, including severe self-harming and violent behaviour, attention deficit hyperactivity disorder, and autistic spectrum disorder. His parents separated when he was a young child, and he has had no contact with his father for several years.
T had previously been in the care of the LA with his mother’s agreement under section 20 of the Children Act 1989 and had been made subject to a care order as he was deemed ‘beyond parental control’. He has remained in the LA’s care since 2019 as a result.
In January 2025, T was placed in a residential unit, which was located some 200 miles from his family home. His challenging behaviour continued, and multiple incidents occurred following his move to the placement. An added complication was that the placement he was in became unregistered in October 2025 after an Ofsted inspection raised concerns about staffing levels.
However, due to a particularly violent incident on 4 March 2026 (when T made threats to burn the property and used a metal pole to threaten the staff), he was arrested. The next day, the LA applied under section 9(1) for an order seeking leave to apply under the inherent jurisdiction for an order authorising the deprivation of T’s liberty.
Initially, short-term authorisation was granted by HHJ Reardon, sitting as a High Court Judge. However, thereafter, HHJ Basue refused to extend the order after an application from the LA (supported by T’s mother and by his children’s Guardian). The reasons for refusal were based on:
Speculation and lack of evidence: Speculation as to T’s risk to others and to himself, without evidence from an appropriately qualified expert [9].
Inherent jurisdiction: Belief that inherent jurisdiction was not available due to section 25 of the Children Act and that a secure accommodation order under this section was the proper route as a statutory alternative, alongside there being no reasonable cause to believe that if the Court’s inherent jurisdiction is not exercised, T is likely to suffer significant harm [10].
Evidence of self-harm dismissed as minimal: The only evidence of self-harm was a one-off incident, and there was no indication of a likelihood of future significant harm [11].
Suitability of the placement: Given the concerns expressed by the Police, the Judge was not satisfied that the placement was suitable [12].
In summary, HHJ Basue did not consider that authorising the deprivation of T’s liberty was justified when he was said to be committing criminal acts against others, something which was not covered by a process governed by statute, but which is, rather, within the inherent jurisdiction of the High Court, and that there are no charges either admitted by him, or proven against him beyond reasonable doubt [13].
The LA appealed this decision, and the CoA allowed the appeal.
The appeal
The appeal related to the question of whether the High Court’s inherent jurisdiction could be invoked in situations where no secure accommodation was available under section 25 of the Children Act 1989.
The LA put forward the following grounds (summarised [37]):
- Error of Law and lack of alternative placement: The judge erred by refusing the LA leave to invoke the inherent jurisdiction of the High Court by relying on the use of section 25 of the Children Act 1989 as a statutory alternative to invoking the inherent jurisdiction, therefore preventing the Court from granting leave to invoke the inherent jurisdiction pursuant to section 100(3) of the Children Act 1989. The judge failed to consider that there was no available secure placement.
- Error of Facts: The judge erred in applying the facts by concluding that T had not suffered harm or was at risk of suffering harm as a result of his behaviours against others and then misapplied it as a barrier to the court making an order pursuant to the inherent jurisdiction in T’s best interests. Separately, the judge erred in the factual analysis by concluding that T was not at risk of suffering significant emotional harm due to placement instability that may arise from T’s dysregulating behaviours, and the judge was wrong to conclude that there was not sufficient evidence before the court to reach that conclusion.
- Error regarding statutory defence: The judge was wrong to conclude that the placement staff had a statutory defence of self-defence by virtue of section 3 of the Criminal Law Act 1967.
- Misplaced Focus on Criminality: The judge was wrong to find that the deprivation of liberty order sought was to be used as a mechanism to punish T’s alleged criminal offending and also by subsequently concluding that as T was not present and there were no findings made to the criminal standard of proof, that this prevented the court from authorising T’s restrictions at his placement.
- Welfare analysis and best interests: The judge failed to undertake an appropriate welfare analysis as required by section 1 of the Children Act 1989, including the impact on T if he were to move placement from one where he wished to remain.
The CoA held that the judge erred in law on two grounds [40].
The first was that the judge wrongly concluded that section 100(4)(a) of the Children Act 1989 precluded granting leave to invoke the inherent jurisdiction because a section 25 order was theoretically available (when the chronic shortage of secure accommodation meant the result sought could not be achieved through section 25, regardless).
The second was that the judge had carried out a flawed analysis under section 100(4)(b) regarding the element of “harm”, which includes an array of factors as opposed to merely physical harm. “Harm” can include emotional and psychological harm as (per section 105(1), the word “harm” in the Act has the same meaning as in section 31(9): “ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another” [42]). Considering T’s historically dysfunctional, violent, and unpredictable behaviour, especially the incident which led to his arrest, there was clearly, at least, reasonable cause to believe T was likely to suffer significant harm if the court did not intervene.
With this decision, the CoA confirmed that the inherent jurisdiction remains available to authorise the deprivation of liberty for children; however, it should not be refused simply because section 25 of the Children Act 1989 exists in theory. Due to the fact that there was no reasonable alternative, the result which the LA sought to achieve by imposing restrictions on T’s liberty to protect him from significant harm, in reality, could not be achieved by an order under section 25. This, Baker LJ noted, when considered with T’s wishes to remain in the accommodation (which he had been in for over a year), meant that it would be against his welfare to move him, and the judge’s interpretation of section 100(4)(a) was “manifestly too narrow” [41].
Baker LJ, with the agreement of Miles LJ and Newey LJ, concluded that the refusal to extend the order on the basis that the LA could apply for a secure accommodation order under section 25 and that there was insufficient evidence that T would suffer significant harm, so that authorising deprivation of liberty to protect others from T’s violent behaviour, was wrong.
Conclusion
When balancing the continuing and escalating risks against T’s vocalised wishes and feelings to remain where he was, the Court decided that authorising the extension of the order at the unregistered placement was in his best interests. Further, as has been evident with all placements in recent years, there was a sheer lack of alternatives. This case highlights the continuing and essential need for High Court intervention when suitable, registered secure accommodation is unavailable for children with high-risk behaviours.
The case of T did not overhaul the law; however, it somewhat fine-tuned how and when the High Court’s inherent jurisdiction can be used to authorise a child’s deprivation of liberty, especially in the context of the ongoing shortage of secure accommodation.
Ultimately, inherent jurisdiction is not a last resort and is a real safeguard. In the current climate, the courts are urged when balancing human rights, a welfare analysis and statutory limits, to also be realistic about system failures and the lack of available placements. As such, this case has highlighted a shift from the formal legal approach to a real workable alternative.
