This is a guest post by Harriet Humberstone, a law student who begins her Bar professional course this September. Harriet has a particular interest in representing children in both private and public law.
This post will highlight the complex judicial balance that often has to be achieved between maintaining biological ties and protecting a child’s established emotional security. Specifically, whether it is in this young child’s best interests to remain with the foster family she has lived with for most of her life or to be moved to live with her biological half-sister. The hearing lasted three days and the judgment was handed down by Mr Justice McKendrick on 25 February. It’s published as Re T (A Child) (Non-Agency Adoption) [2026] EWHC 391 (Fam).
A significant feature was the delay in this case, in terms of the local authority failing to act sufficiently when the foster parents first expressed interest in adoption. Consequently, the child’s attachment to them deepened to a point where removal became too traumatic to justify.
Outline of the case
T is a three year old girl who has lived with foster parents Mr and Mrs X since she was five days old. The local authority in this matter sought to oppose Mr and Mrs X adopting T and instead move her from London to the North of England to live with her half-sister. Because T hadn’t been placed with Mr and Mrs X under a placement order, this is an example of what’s known as a non-agency adoption. At the hearing’s conclusion, McKendrick J announced to the court that T would be adopted by Mr and Mrs X; a post-adoption contact order was also made. The contact order was issued to ensure that T has regular visits with her biological sister.
Context
The two siblings, T and R, were initially separated after a ‘Together and Apart’ assessment undertaken by the local authority in September 2024 concluded that T and her half-sister should be placed in separate adoptive placements if it wasn’t possible to identify prospective adopters who were willing to adopt a sibling group of two. It should also be noted that there was evidence to suggest ‘R presents with competing needs.’ In October 2024, Mr and Mrs X were being considered as a potential adoptive placement for T. However, in February 2025 the local council informed them that T would be removed from their care and placed for adoption alongside R. The judgment states ‘Mr and Mrs X asked the local authority to reconsider and to obtain a professional assessment on the subject of the impact of disrupting T’s attachment to them. The local authority did not agree to do so.’
Evidence
McKendrick J states that ‘it mostly amounted to different opinion evidence, as opposed to disputed facts’ but I will briefly outline what seems the most relevant evidence. First, T was placed into Mr and Mrs X’s care when she was only five days old, and it is the only family T has ever known. T has grown up with their four sons and they are close. T has thrived intellectually, socially and emotionally. She also has a relationship with their wider family. Interestingly, Mr X notes that his home country’s culture is similar to T’s biological father’s. This is of importance as T would have connection and understanding of her heritage. Mr and Mrs X express their love for T. They confirmed their desire to adopt her at a meeting in December 2024 and were informed two months later she would be placed for adoption with another family. Mr and Mrs X applied for an injunction after the local authority failed to carry out an assessment of the risk that removing T from the only family she had ever known might pose. Mr X also gave oral evidence making it clear that he believes in regular contact between the two sisters.
Reasoning and Outcome
The Welfare Imperative of Stability
Because T was three years old and had never lived with her birth family, the court determined that removing her from the only home and parents she had ever known would cause ‘trauma akin to bereavement’, leading to significant emotional distress and the risk of regression. This attachment was considered the ‘over-arching determining factor’ in the case.
The Importance of Sibling Bonds for Identity
The court acknowledged the statutory guidance and professional evidence emphasising that siblings should generally be placed together to support their lifelong identity and emotional resilience. The judge noted that:
- Fraternity is a ‘cornerstone’ of identity development, helping children understand who they are by ‘looking sideways’ at those they resemble.
- T and R enjoyed a ‘close and loving relationship’ despite never living together, and they identified as sisters.
- There was a future risk of emotional harm if an older T were to look back and struggle to understand why she was kept apart from her birth sister.
The Comparative Welfare Analysis
In weighing these competing needs, the judge balanced the ‘certainty of trauma’ from separating T from her foster family against the ‘risk of future emotional harm’ from being raised apart from her sister. The court concluded that:
- While sibling placement is highly valued, T’s need for continued stability in her primary attachment outweighed the benefits of moving to live with her sister.
- The ‘good reason’ required by law to depart from the principle of placing siblings together was the severe detrimental impact that removal would have on T’s welfare.
The Resolution: Adoption with Mandated Contact
To balance these interests, the court granted the adoption order to the foster parents but simultaneously made a post-adoption contact order under section 51A of the Adoption and Children Act 2002. This order required:
- A minimum of six in-person visits per year between the sisters.
- Ongoing indirect video contact to ensure the relationship is ‘nourished’.
The court intended this arrangement to create a space where T could remain secure in her adoptive family while still developing her shared identity with her sister, thereby mitigating the long-term risks of separation..
Potential Implications
The Primacy of Welfare over Statutory Sibling Guidance
The judgment clarifies that while statutory guidance states siblings should generally be adopted together, this is not a legal presumption that overrides a child’s individual welfare needs.
A Shift in Post-Adoption Contact Judicial Thinking
Historically, courts have been reluctant to impose post-adoption contact orders on unwilling adopters, usually reserving them for ‘extremely unusual’ cases. However, this judgment utilises Section 51A of the Adoption and Children Act 2002 to mandate significant in-person contact and video contact. This may signal a growing judicial trend toward ‘enforced’ sibling contact as a necessary mitigation tool when children are separated, even if it creates a burden on the adoptive families. However, none of the parties in this case objected to the order, so possibly the judge was making it partly to help the families access future support. We summarised a recent case where this happened in our January Roundup, Re C, D, E and F (ACA s51A: contact order after adoption) [2025] EWFC 436 (B)
Validation of Foster Carer Non-Agency Adoptions
The case validates the rights of foster carers to challenge local authority care plans through non-agency adoption applications. By granting an injunction to prevent the child’s removal while the adoption application was pending, the court utilised protective measures, allowing the foster parents’ claim to be heard on its welfare merits rather than being pre-empted by an administrative move.
Image: Two young sisters walking in field – creative commons licence, PublicDomain.net