Children law update - Easter 2026

Kicking off this Easter edition of my standard update in all things children law related, I am going to start with what I think it an extremely topical Court of Appeal decision, with the lead judgment coming from Cobb LJ. Re S (Foster Care or Placement for Adoption) [2026] EWCA Civ 47 was an appeal against a refusal of a Circuit Judge to make a placement order in relation to one child, S. The judge made a care order, which was not subject to any appeal. The local authority presented a number of grounds upon which they argued that the Judge had fallen into error in refusing to make the placement order, including in concluding that S’s current foster placement was available as a long-term placement (within the judgment, Cobb LJ refers to the up-to-date position of the foster carers, who were willing to continue to care for S in the long-term). One of the great things about the judgment is that Cobb LJ provides a comprehensive overview of the authorities relating to adoption weighed against long-term foster care as a welfare outcome and relating to the issue of post-adoption contact. The full summary of the law from His Lordship is as follows:

‘Before looking at the Grounds of Appeal and argument, I turn to the law and some of the relevant authorities to which our attention was drawn in this appeal. I have drawn together the submissions on the law under the following discrete heads: (a) Adoption formalities; (b) Adoption vs long-term fostering; (c) Adoption and contact; (d) Balance sheet exercise; (e) Relevance of the difficulties of finding an adoptive placement.

(a) Adoption formalities: Where a local authority is satisfied that a child who is the subject of an application for a care order (such as S) "ought to be placed for adoption", the authority is under a duty (i.e., it "must") "apply to the court for a placement order" (section 22(2) of the ACA 2002). The application for such an order is ultimately determined by the court by reference to the subject child's welfare "throughout" their life: section 1(2) ACA 2002. However, before considering the child's welfare, the court has to be satisfied: 

i) That the child is the subject of a care order, or the threshold criteria in section 31(2) CA 1989 are met (section 21(2)(a)/(b) of the ACA 2002), and 

ii) That the parents consent to the child being placed for adoption, or that the parent's consent "should be dispensed with" (section 21(3)(a)/(b) of the ACA 2002). 

As to (ii), the court cannot dispense with the consent of the parent unless the court is satisfied that "the welfare of the child requires the consent to be dispensed with" (section 52(1) of the ACA 2002). It is common ground that 'requires' in this context has (as the Judge himself referenced: see §22 above) a "connotation of the imperative". This derives from the judgment of Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535 ('Re P') at [125]:

"'requires' … is a word which was plainly chosen as best conveying, as in our judgment it does, the essence of the Strasbourg jurisprudence. And viewed from that perspective 'requires' does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable". 

(b) Adoption vs long-term fostering: Where, as here, placement for adoption is being considered, both domestic law and Article 8 of the European Convention on Human Rights ('ECHR') require a high degree of justification before such an outcome can be endorsed as being "necessary" and proportionate (per ECHR, especially Article 8) or "required" (section 52(1)(b) ACA 20020): see Lord Wilson in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 , sub nom Re B (Care Proceedings: Appeal)  at [34].

The contrasting characteristics of adoption compared to long-term fostering are well-rehearsed in existing caselaw. A useful review of those characteristics can be found in Re D-S (A Child: Adoption or Fostering) [2024] ewca civ 948 ; [2025] 1 FLR 815 ('Re D-S') at [21]; I do not regard it as necessary to reproduce that paragraph in full here. 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. 

(c) Adoption and contact: Post-adoption direct contact between the birth family (parents and/or siblings) and the adopted child is now much more common than it was even a decade ago; it is now embraced as a model for "the modern world" of adoption (see below). The ACA 2002 provides that at the point of making the placement order, contact orders may be made: see section 26(2)(b) and section 27 (as amended)). At the later stage of the adoption order itself, the court is required again to consider "whether there should be arrangements for allowing any person contact with the child: section 46(6) ACA 2002, and/or at that time or later, can make a contact order under section 51A of ACA 2002. The scope for making contact orders, or something less than orders (i.e., recitals reflecting endorsement of contact plans: see for example Re S (Placement Order: Contact) [2025] EWCA Civ; [2026] 1 FLR 48 ('Re S') at [80]), has been widely discussed by this Court in recent years: see Re P (citation above, see especially [151]); Re B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29  (see in particular Sir Andrew McFarlane P at [59]/[61]/[62]: "the court's order may well … set the tone for future contact" [62]), and Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302 ; [2025] 2 FLR 68 ('Re R and C') (see in particular Baker LJ at [6], and his comprehensive and authoritative review of the caselaw at [22]-[40]; and later [65]: "open adoption … is now embraced as a model in what the President has called the modern world"). In Re R and C, Baker LJ at [39] (quoting from a speech delivered by Sir Andrew McFarlane P in May 2024) separately referred to the "duty" on the judge on the placement order application to:

"… set the template for contact going forward. Where continuing contact in some form is ordered at that stage, this will be an important "known known" about the child to be taken on board by any potential adopters with whom placement may be considered".

Turning back to Re S (see §36 above), Sir Andrew McFarlane P spoke of the "clear shift" over recent years in the direction of travel "in understanding the approach to be taken to the issue of post-adoption contact" (Re S at [71]). He observed (albeit that the issue in that case was sibling contact but the principles are the same in relation to parental contact):

"[44]… In some cases the need to preserve contact will be a preference, in others it may be essential. In all cases it will be necessary to take account of the impact on family finding of a care plan that includes ongoing contact and/or proposals for a s 26 order for contact. There will be some cases where the priority to be given to preserving the sibling relationship will be such that the court should make a contact order, notwithstanding that to do so may make the task of finding an adoptive family more challenging".

And later:

"[74]… it is the responsibility of the court to make orders for contact if they are required to meet the child's welfare needs, as determined under ACA 2002, s 1. The position of potential adopters should not … obviate the court's responsibility to set the template for contact at the placement order stage.

[75] The duty imposed on the court under ACA 2002, s 27(4) to consider the proposed arrangements for contact is an important one. It applies to every application for a placement order, whether or not a formal application for contact has been made. In contrast to all other elements of the care plan for a child who is to be placed for adoption, Parliament has given the courts this responsibility to consider the contact arrangements and jurisdiction to make orders where to do so is in the best interests of the subject child".

I mention here, as Sir Andrew McFarlane P did himself in Re S at [21], the important report of the President's Public Law Working Group report ('Best Practice in Adoption: November 2024) which recommended: 

"…a tailormade approach to the issue of contact for each adopted child which includes and promotes face-to-face contact with important individuals in that child's life if it can be safely achieved and is in the child's best interests"(para.42).

Finally, it is relevant to note in the context of this case a further observation of Sir Andrew McFarlane P from Re S as follows:

"[32] … there is a distinction to be drawn between those cases where continuing direct sibling contact is considered to be necessary for the child's future welfare, and cases where the achievement of an adoptive home is the overarching goal, with future sibling contact being desirable as opposed to a prerequisite. In the former circumstances (as in Re P and Re R and C) the court has 'a responsibility' to make a s 26 contact order".

(d) Balance sheet exercise: 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').

In view of the Judge's specific remarks in his judgment at [17] (reproduced at §22 above, in particular see the passage underlined), Mr Wilson drew our attention to the further judgment of McFarlane LJ in Re W (Adoption: Approach to Long-Term Welfare) [2017] 2 FLR 31 , in which he cautioned against an overly-abbreviated reliance on the phrase 'nothing else will do' in this context; at [68] he said this:

"The phrase is meaningless, and potentially dangerous, if it is applied as some free-standing, shortcut test divorced from, or even in place of, an overall evaluation of the child's welfare. Used properly, as Baroness Hale explained, the phrase 'nothing else will do' is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the European Convention and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002, s 1). The phrase 'nothing else will do' is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see: Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, sub nom Re B-S (Adoption: Application of s 47(5)) [2014] 1 flr 1035 ".

While I do not intend, by my comments which follow, to diminish the importance of these earlier judicial pronouncements, a failure to set out the options in a side-by-side balance sheet analysis in the manner described above will not pave the route towards certain success on appeal. The appellate court must always assess whether a judge actually failed to balance the factors in such a way as to lead them into error. Without a balance sheet this is a much more challenging task; in this appeal we were required to study the Judge's individual pronouncements within the judgment with considerable care. Mr Wilson mounted an impressive challenge on Ground 1, but his arguments were founded on what I regarded as "a narrow textual analysis" of parts of the judgment, and not on the judgment as a whole as Mr Broadbent argued; had we adopted the narrow approach we may well have been encouraged to conclude that the Judge had indeed misdirected himself: Piglowska v. Piglowski .  Moreover, as Baker LJ recently observed in Re N (Refusal of Placement Order) [20023] 2 flr 642 at [33]:

"… although such a style [i.e., setting out the advantages and disadvantages in a balance sheet] might be prudent as a method of ensuring and demonstrating that all relevant matters have been identified and considered, it is not an imperative. As McFarlane LJ observed in Re F (A Child) (International Relocation: Welfare Analysis) [2015] EWCA Civ 882  (at para [52]), while a balance sheet may be 'of assistance' to judges, 'its use should be no more than an aide memoire of the key factors and how they match up against each other … a route to judgment and not a substitution for the judgment itself'".

(e) Relevance of the difficulties of finding a placement: Given the acknowledged challenges of finding an adoptive placement for S given her age and the plan for post-adoption parental contact, coupled with the Judge's pessimism in relation to family-finding generally, we were reminded of the comments of Hughes LJ (as he then was) in Re T (Placement Order) [2008] 1 FLR 172. Hughes LJ had addressed this very point in this way (at [17]):

"… even if there is a real possibility that an adoptive placement will not be found, it by no means follows that adoption is not in the best interests of the child. Since a child cannot usually be placed without a placement order, to say otherwise would be to deprive the child of the chance of what has been determined to be the best possible outcome for him. Mere uncertainty as to whether adoption will actually follow is not a reason for not making a placement order. Indeed, s 22(2)(a), referred to above, clearly contemplates that a placement order may be applied for before it is known whether there will be a care order or not. Plainly a placement order can be, and perhaps usually should be, made at the same time as a care order is made on a plan for adoption which the judge approves, even though at that stage a good deal of investigation and preparation is needed before the child can actually be placed, and it is not known whether a suitable family will be found or not".

This passage was referenced by Peter Jackson LJ in Re D-S at [32]; he confirmed that the court's primary task is to take a decision as to whether adoption or fostering is right for the child as a matter of principle. In order to do that, it will not usually have to have evidence about the availability of placements. However, he added, materially for present purposes, that:

"There may be cases at the margins where specific evidence will be necessary, examples being where the plan is for the adoption of a much older child" (Emphasis by underlining added).

This has some resonance on the instant facts., It is to be noted that the child in Re D-S was 6 months old when the proceedings commenced and 11 months old when the placement order was made. As I have earlier mentioned, S will be 5 years old in just four months time.’

I think the above summary is masterful in that in includes absolutely all the relevant guidance in a number of tricky areas. It is Peter Jacksonesque. Ultimately, the appeal was refused and the Judge’s decision was upheld for a number of reasons. Firstly it is necessary to note that S was 4 ½ years old at the time the Court was considering the care and placement applications, hence locating an adoptive placement for a child of that age was by no means a straightforward task. It was accepted that on the available evidence, the Judge was entitled 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. The Court of Appeal was also satisfied that although the Judge did not set out a side-by-side balance sheet analysis of placement options, he clearly had considered the pros and cons of adoption and long-term foster care: again it is the substance of a Judge’s analysis which is critical in this respect. In addition to this, Cobb J was satisfied that the Judge was justified in forming a negative assessment of the local authority’s commitment to find an open adoptive placement (its plan prior to the start of the final hearing was for a closed adoptive placement, i.e. with no direct contact for the mother). Finally the Court of Appeal was not persuaded that the Judge failed to adequately justify departing from the conclusions of the local authority social work professionals and the children’s guardian. 

For me, one of the central takeaways from this judgment is the changes to adoption as a concept in this jurisdiction. For example, the previous ‘assumption’ adopted by many professionals that adoption would result in an end to all direct contact with parents and be ‘closed’ no longer holds weight (for good reason).

Next up, I turn to the National Deprivation of Liberty List and a judgment from the lead Judge with conduct of the list, Henke J. In East Riding of Yorkshire Council v The Mother & Ors [2026] EWHC 181 (Fam) Her Ladyship was dealing with an application by a local authority to authorise the deprivation of liberty of a 12 year old girl, L, described as a child much loved by her parents. L had a number of complex needs which resulted in her being voluntarily accommodated at a residential placement under s.20, where the care arrangements in place involved 2:1 supervision and arrangements which met the objective limb of the Storck test. Physical intervention was used as a last resort and L was unable to make capacitous decisions: her decision making was significantly influenced by sensory sensitivities and emotional dysregulation linked to her autism. L’s parents consented to the care arrangements and the issue was whether in those circumstances, a Court authorisation was necessary: the issue of parental consent validly permitting what would otherwise constitute a deprivation of liberty was left open by the Supreme Court in Re D [2019] UKSC 42, where is was held that such consent could not validly operate in relation to children over the age of 16. Therefore, although Lady Hale and Lady Black commented on the position of children under the age of 16 in Re D [2019], they did not determine the issue. Accordingly, Mr Justice Keehan’s decision in Re D [2015] EWHC 922 (Fam) still stands, with the relevant parts of that judgment being paragraphs 55-58:

‘When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is inevitable and necessary that I take into account D’s autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life. 

An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15-year-old young person. 

The decisions which might be said to come within the zone of parental responsibility for a 15-year-old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15-year-old son suffers with D’s disabilities. Thus a decision to keep such a 15-year-old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15-year-old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.

The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.’

Henke J provides a thorough analysis of the case law, touching upon the decision of Knowles J in Re Z (a child: deprivation of Liberty: Transition Plan) [2020] EWHC 3038, a case decided after Re D in the Supreme Court. In that case, Knowles J found that what was in terms of restrictions strained the boundaries of what was permitted by a parent with respect to the exercise of their parental responsibility, with Knowles J commenting that:

‘This case turned on the fact that the plan to move Z from his home required the authorisation of the use of force in respect to him. On being told that he had to go to a 52-week residential school, Z said he would lock himself away or defend himself. His parents believed that Z was determined to resist any move out of his home and, in those circumstances and given the history, Z’s safety and the safety of everyone involved demanded a short and effective process which led seamlessly through the levels of intervention until Z was safely inside the car taking him to his new school. 

I accepted the submissions of all the parties that what was contemplated here strained the boundaries of what was permitted by a parent with respect to the exercise of their parental responsibility. There was no immediacy of significant harm in this case as would be recognised by necessity. However, it was anticipated that Z would resist and that the level of restraint or force required to move him safely into the car would be outside that which might be considered reasonable chastisement of a child.’

Henke J also referred to Regulation 20 of the Children’s Homes (England) Regulations 2015, in the context of physical restraint, which permits the restraint of children in order to prevent injury to the child and others, serious damage to property, and in order to prevent a child accommodated in a secure children’s home from absconding (the permissive nature of Regulation 20 has never sat well with me in an Article 5 context). 

L’s parents were loving parents who worked well with professionals: no party questioned that they only had L’s best interests at heart. Henke J articulated the real issue in the case as being:

‘The real question in this case is whether the decisions that L’s parents have made in relation to her confinement fall within the zone of parental responsibility.’

Her Ladyship found that those decisions did fall within that zone:

‘L is 12 years old. Most parents would expect to make most, if not all, significant decisions for a 12-year-old. L’s parents are no different. L’s maturity and level of understanding is relevant to her parents’ need to make decisions for her. L is autistic. Her autism impacts her maturity and level of understanding. She does not have the capacity to make decisions for herself. It is accepted before me that L is not Gillick competent. I have described in earlier paragraphs of this judgment, L’s presentations and behaviours. They are relevant to the risks that she poses to herself and others. Any parent of a 12-year-old would expect to take decisions to enable their child to be protected and would regard such decisions as coming within their zone of parental responsibility. Any parent when considering how to ensure their child’s safety would take into account that child’s behaviours and presentation and the risks that flow from them. That is exactly what L’s parents have done here. In this case, L’s parents have given their consent to the elements of her plan which amount to confinement within Storck limb (a). They have done so to ensure her care needs are met and that whilst she is accommodated away from them, she is safe. The decisions they have taken in that regard are acknowledged to be in L’s best interests. 

That brings me to the restrictions that amount to L’s continuous supervision and control. In my judgment the 2:1 supervision, the locking of doors and windows etc are all matters that fall squarely within the zone of parental responsibility in relation to a 12-year-old who presents as L does. The issue of physical restraint however is less clear and requires careful consideration. I do not accept the local authority’s submission that the Team Teach interventions are part of L’s care and treatment. I have set out in an earlier paragraph how that intervention has been used to “unstick” her. Whilst it may be used for that purpose, the local authority also candidly state in the social worker's statement that Team Teach will be used to prevent L causing harm to herself and others; to prevent L leaving the placement of her own accord to keep her safe; for the purposes of transport to and from the placement and educational provisions/appointments; and to return L to the placement if she absconds. In those circumstances, the restraint used is, in my judgment, objectively a component of her confinement and falls within limb (a) of Storck. 

Further I do not accept the local authority’s submission that the purposes for which restraint is used in this case fall squarely within regulation 20 of the 2015 regulations. Only regulation 20 (1)(a) and (b) would be applicable to L. The scope of those paragraphs is limited. The purpose of restraint and the circumstances in which restraint may be used, if necessary, in L’s case quite clearly go beyond the ambit of regulation 20(1)(a) and(b). 

On behalf of the Guardian, it is submitted that consent to such restraint is outside the zone of parental responsibility in this case. I do not agree. In my judgment the consent to restraint as provided here is part and parcel of L’s parents’ exercise of parental responsibility to ensure her safety and welfare when she is outside their care. It would be neglectful for them to not consent. Without the use of restraint for the purposes already described, L would not be safe.

There is one further element to which L’s parents’ consent, and which concerns the Guardian. That is advance consent to L being administered medication including antipsychotics if deemed necessary by medical professionals. At first blush that may appear extreme but on further consideration, I remind myself that L is under 16 and not Gillick competent and thus her parents can consent to her medical treatment if they consider that it is in their child’s best interests to do so.

It is submitted on behalf of the Guardian that parental consent does not provide L with adequate safeguards. It is argued that without prior court authorisation, there is no objective judge of proportionality and necessity. There would be no court consideration of the restraints to be used and how they would be used or indeed any of the other restrictions her parents have agreed. That is true. However, there is no need for a court process here because in L’s case her parents are acting in her best interests. They are consenting to that which all agree is necessary and proportionate. L’s parents know her and her unique presentations better than anyone. They have watched her grow up and until early last year cared for her daily. They thus are in many ways better placed to make the decision about what is necessary and proportionate for their daughter than others.’

In my view this decision has to be correct: the prospect of having to seek a Court authorisation for any restrictions that may amount to a deprivation of liberty of a child under 16 in a situation where loving and committed parents consent and where the restrictions are such that they fall within the zone of parental responsibility seems completely unnecessary (one can only imagine the floodgate of litigation that could follow if an application was needed in every case where a prospective deprivation was taking or may take place). The proper question to ask has to be the nature and level of the restrictions considered in light of the age of the child in question, or ‘are the consents offered valid within the meaning of Storck limb (b) and are the decisions being taken in the child’s best interests’. If the answers to the latter two points are ‘yes’, then the subject child is not being deprived of their liberty for the purposes of Article 5. 

Following on from this case, Henke J handed down a further judgment in Medway Council v The Father & Anor [2026] EWHC 236 (Fam). This case concerned O, a 15 year old child with complex needs who resided at home with her father. Her father was wholly committed and devoted to her case. The local authority sought authorisations to:

a.Support with personal care at home, at school and at the residential home

b.Being under constant supervision at home, at school and at the residential home.

c.The use of locks on doors to keep O from leaving

d.The use of a 3-point harness to restrain her when being transported on the school bus

The local authority’s argument was neatly summarised by Henke J within the following paragraph:

‘It is argued that O requires all her care needs to be provided by others including agency staff at home, at the residential home where they attend for respite care and after-school club and in school. The local authority submit that O is deprived of her liberty. O is not free to leave the family home, her school or the short stay home. Whilst, it is accepted, locking the front door at the family home would not of itself be an unreasonable restriction on a 15-year-old, a 15-year-old might be expected to have some liberty to come and go as they please or at least enter the garden at will. In contrast, O is under constant supervision. O is restricted from entering areas such as the kitchen in the family home. O is not permitted to go anywhere unaccompanied; O is not free to move around or leave at school, at the residential home or when being transported to school or the residential home. It is said that it does not assist to consider whether those restrictions are imposed by reason of her condition and not externally by the State; O’s freedom of movement is controlled by the State at home by the Agency Staff, at the short stay home provided by the local authority and at school. Further, it is said that it is no answer to say that the restrictions are part of a benevolent arrangement in O’s bests interest to which all parties’ consent and which thus do not amount to a deprivation of liberty.’

It is notable that O was not subject to a public law order, nor was she accommodated by the local authority, with all support services being provided pursuant to s.17. Neither the Guardian nor O’s father believed that there was a need for a Court authorisation in the case. Ultimately, Henke J again concluded that parental consent can be validly exercised in these situations in relation to children under 16:

‘In my judgment it is a regime in relation to those under 16 which permits parental consent provided that said parental consent does not leave that child without safeguards. Parental responsibility must be exercised in the best interests of the child. What falls within the zone of parental responsibility is not limitless- see paragraph 55 Re L (above). As a matter of logic, any zone must have boundaries. Where the decisions taken by a holder of parental responsibility are not in the child’s best interests, there are safeguards. The measures include applying to the court to authorise the child’s deprivation of liberty where the parent does not exercise their parental responsibility and refuses to consent to deprivation of their child’s liberty which are necessary and proportionate to safeguard their child. Further if the decision were taken contrary to the child’s welfare, then if the local authority considered the relevant thresholds met, the local authority could apply for public law orders under Part IV and V of CA 1989.’

As was the case in East Riding, the real issue in O’s situation was whether the consent provided by the father fell within the zone of his parental responsibility. In this respect, Henke J stated:

‘I agree with Mrs Justice Lieven that when considering the zone of parental responsibility, it is more appropriate to consider the characteristics of the individual child in question than to compare them to a hypothetical child of the same age – TGA at para 27. The age of the child is relevant- see Re D [2015] EWHC 922 (Fam) at paragraph 56. But age is not the sole factor. Each child has their own unique characteristics. A 15-year-old may be highly intelligent and mature enough to make all decisions for herself. Another 15-year-old may lack the necessary degree of maturity and need a parent to make all decisions for them. Another 15-year-old may be mature enough to make some decisions for herself but not all. Children mature at different rates. They have the capacity to decide different issues at different times. The zone of parental responsibility constricts as the child is able to make decisions for themselves. Conversely, if the child is not Gillick competent then the zone of parental responsibility must, in my judgment, remain relatively wide. Ultimately, what falls within the zone of the appropriate exercise of parental responsibility is fact specific. It is dependent on the decision to be taken and the individual child who is the subject of the decision.’

Ultimately, Her Ladyship concluded that:

‘Given O’s level of maturity and understanding, in my judgment most parents would expect to continue to make decisions for her despite her age. In making decisions for O, they would consider her unique presentation and her individual needs. They would want to factor in the risks she poses to herself and others when taking steps to ensure her safety when she is not in parental care. That is what O’s father has done in her case. He has consented to a package of care to meet her needs and to such confinement as is necessary to ensure she is safe when receiving that package outside his care. That is, in my judgment, an appropriate and responsible exercise of parental responsibility.’

When O’s father was not available in the home or when staff took O into the community, the supervision they provided was 1:1 and constant. Henke J was satisfied that this amounted to a confinement within limb (a) of Storck and, in so far as it is provided by agency staff is imputable to the State -limb (c) of Storck. However, Her Ladyship was also satisfied that it was an appropriate exercise of parental responsibility by O’s father to consent to those steps to keep her safe when he is not available to supervise her himself. ‘If O’s father were to leave O without such provisions being put in place, he would be neglectful of her welfare interests’. Having analysed each element of O’s care arrangements that included restrictive components, Her Ladyship concluded that all of the father’s consents were valid and properly fell within the zone of his parental responsibility. 

My next case is a judgment from the President relating to the use of experts in parental alienation cases: Re Y  (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38. In 2019 a judge had found that the subject children had been alienated from the father by the mother’s highly negative attitude towards him. The judge made these findings having heard evidence from the psychologist, Melanie Gill, who was instructed within those proceedings. The children were directed by the judge to live with their mother and had no contact with their mother from the end of 2019 until 2025. In the early part of 2025, the daughter, then aged 18 years, moved to live with her mother for a few months before returning to her father's care. Later in 2025 the boy, now aged 15, unilaterally left his father's home. He travelled to his mother's home but, in the light of the court’s previous findings, he was removed into police protection and spent a period of time in foster care before going to stay, following an order made by Lieven J, with a friend of the mother. The President discharged that order and replaced it with a child arrangements order providing for Y to live with his mother.

The mother made an application under Part 18 FPR to set aside the previous findings made against her, with the President hearing that application: ultimately the President set aside the key findings made in 2019 and consolidated in a further judgment in 2020. In doing so, the President observed that:

‘When the process that was followed in 2019 is held up for audit against the principles of good practice in cases concerning alleged alienating behaviour which are now well established, every agency involved in these proceedings can be seen to have been at fault. By “every agency”, I am referring to CAFCASS, the children's solicitor, the local authority and the court.’

Melanie Gill was noted by the President not to be a chartered psychologist nor registered with the Health and Care Professionals Council. She produced a report over 100 pages long, which commented upon issues including attachment and ‘alienation’. The conclusions were endorsed by the Guardian. The original judge had finalised matters having attached what was clearly significant weight to Ms Gill’s evidence: the judge did not embark upon a fact finding exercise in relation to the mother’s allegations of abuse made against the father. The basis of the mother’s Part 18 application was that the approach taken by the original judge was not in accordance with the approach to ‘parental alienation’ taken by the President in the case of Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 and extensive guidance on alienating behaviours issued by the Family Justice Council in December 2024 [‘the FJC guidance’]. The judgment in Re C and a more recent authority, P v M [2023] EWFC 254, were both cases which involved the instruction of Ms Gill.

The President provides a thorough and comprehensive overview of the guidance relating to cases of alleged parental alienation (I will not set these lengthy paragraphs out here, but would recommend that the full judgment is read). In relation to instructing psychologists within family cases, the President cited his comments in Re C:

‘In every case the court should identify whether a proposed expert is HCPC registered. A sensible practice, where the expert is unregistered, is for the court to indicate in a short judgment why it is, nevertheless, appropriate to instruct them.’

The President also referred to the proposed rule changes to the FPR 2010 made in mid 2025, albeit these recommended changes involving the definition of a regulated expert have yet to be reviewed by the Rule Committee and passed into law. The President provided the following important guidance in relation to both the instruction of unregulated experts and assessment of alienating behaviours in the context of family cases:

‘The modern approach to the instruction of unregulated experts and the assessment of alienating behaviour

Regarding unregulated experts, the judgment in Re C strongly encourages courts to favour the instruction of regulated experts, and only to turn to an unregulated expert where there are good reasons for doing so, which are to be set out in a short judgment. The need for rigour on the part of the court in identifying and approving the instruction of an expert is stressed; this being particularly so given the potentially confusing use of the title ‘psychologist’.

Whilst it is for the Rule Committee and the relevant minister to decide whether to promote any amendment to the FPR 2010 by a statutory instrument, I am sufficiently concerned by the instruction of an expert such as Ms Gill in Re C, P v M, O v P and the present case, now to go further than I did in Re Cand give firm guidance on the instruction of an expert psychological witness in children proceedings in the Family Court. 

In future, permission should not be given under CFA 2014, s13  for the instruction of an expert ‘psychologist’ who is neither registered by a relevant statutory body, nor chartered by the BPS. It would be good practice, before a potential expert is appointed, for them to be asked to state whether they hold an HCPC protected title, and if so what that is, before any order is made appointing them as an expert. The ‘registered or chartered’ requirement should only be departed from where there are clear reasons for doing so (for example no registered or chartered expert is reasonably available); where that is so, those reasons should be set out in a short judgment.

The issue of alienating behaviour will, predominantly, arise in private law proceedings but, as this case demonstrates, a finding may lead to a radical dislocation of family relationships that is sustained over a period years. The expectation should be that the degree of rigour that is applied by professionals and the court in managing the instruction of an expert in public law proceedings, is similarly applied in private law proceedings of this nature. 

Turning to alienating behaviour, having set out the ground in the early parts of this judgment, it is possible to summarise the modern approach in short terms:

i) As the full title to the FJC guidance makes plain, the reason for the court’s investigation should be ‘a child’s unexplained reluctance, resistance or refusal to spend time with a parent’, rather than the allegations that one or other parent may be making against the other;

ii) Where a child is reluctant, resisting or refusing to engage in a relationship with a parent or carer (element (i) of the three elements in paragraph 10 of the guidance), then the court’s focus will move to element (ii) to consider whether that reluctance, resistance or refusal is a consequence of the action of the estranged parent, where it is alleged that that parent has been abusive to the child and/or caring parent;

iii) If it is found that the estranged parent has not behaved in a way in which the child’s reaction can be seen as an ‘appropriate justified reaction’ [AJR] to such behaviour, or, for other reasons, it is found that the child’s reaction is not caused by any factor such as a child’s ordinary alignment, affinity or attachment [AAA] to the parent with care, then the court will move on to element (iii);

iv) It is only at the stage of element (iii) that the court will focus on whether the caring parent has engaged in alienating behaviours that have directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage with the estranged parent.

v) Thus, where domestic abuse is alleged, and there is a cross-allegation of alienating behaviour, if a fact-finding process is required, the focus of the fact-finding must be to first determine the issues of domestic abuse and secondly to consider whether the child’s refusal to engage with the estranged parent is an ‘appropriate justified reaction’ to any abusive behaviour, or that what has occurred is the result of protective behaviour or a traumatic response on the part of the victim parent.

vi) Courts should not follow the route adopted by the judges in O v P and the present case in determining the issue of alienating behaviour on its own and without determining the underlying facts and, where it is alleged, the primary issue of domestic abuse;

vii) Courts should not appoint an expert to advise in cases where a child is reluctant, resistant or refusing to engage with a parent unless and until there is clarity and, if necessary, facts that have been found, as to the parents’ past behaviour towards each other and the child and, if domestic abuse is proved, whether the child’s reaction to that behaviour is an appropriate one.’

The President set the previous findings aside for a number of reasons, central to which was the fundamentally flawed process adopted by the original judge and supported by various professionals in 2019, including the children’s team.

That just about wraps up my legal updated for this edition. As ever, I hope you have enjoyed the read, or at least found it to be of some vague use. Hopefully I will have the opportunity of wowing you all with another legal update in the summer. 

Michael Jones KC is a barrister at Deans Court Chambers.