Leave to oppose adoption: good practice guidance

In the recent case of R (A Child: Leave to Oppose Adoption) [2026] EWCA Civ 673 [1] the Court of Appeal provides a reminder of the guidance to be applied when the court is considering an application for leave to oppose the making of an adoption order. In the first instance decision the judge was faced with an application by the birth mother, who was a litigant in person. Having heard from the mother and the solicitor for the local authority, the judge refused the mother’s application for leave to oppose and, at the local authority’s request, made the adoption order the same day. The mother then appealed the judge’s decision.

The Court of Appeal (per Peter Jackson LJ) set out a helpful summary of the key principles from the authorities to date:

“28. There has been a consistent approach to the application of these provisions for years, as seen in In re P [2007] EWCA Civ 616, [2007] 1 WLR 2556; In re B-S (Children)(Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563; and In re M (A Child) [2023] EWCA Civ 404, [2023] 4 WLR 36. In the last of these decisions, I summarised matters in this way:

(1) Section 47 is “intended to provide a real and meaningful remedy… it should not be too narrowly applied”: [8], and [70]-[72] of Re B-S.

(2) An application for leave to oppose involves a two-stage process. There is first the “threshold” question of whether there has been a change of circumstances, and second the “broad evaluation” of whether leave should be granted in light of the child’s welfare: [9], summarising Re P.

(3) In cases where there has been a change in circumstances, the two stages will become “intertwined” and the court will use its assessment of the relevant change as part of the welfare assessment. That said, there will be cases where,  notwithstanding sufficient change for the purposes of the first stage, it will be quite inadequate to cause the court to revisit the plan for adoption: [10].

(4) At the first stage, the asserted change must be relevant to the grant of leave and “of a degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings”. There is no requirement for the s 47(7) change in circumstances to be ‘significant’ and “the test should not be set so high so as to be unachievable”: [12], summarising Re P at [30]-[32].

(5) There is also no requirement for the change to be “unexpected or unforeseen” (paragraphs [14]-[16]). More generally, there is no reason to add any gloss to the simple language of section 47(7): [16(1)].

(6) The evaluation at the second stage must take account of all the circumstances and, in particular, (a) the parent’s ultimate prospect of success if they are granted leave and (b) the impact on the child if the parent is given leave: [20], citing [74] of Re B-S. ‘Prospect of success’ refers to the prospect of successfully resisting the making of an adoption order and not the prospect of the child being returned to the parent (ibid), although there will be cases where adoption and rehabilitation are the only possible outcomes so that the distinction collapses: [22].

(7) In summary, the essential question at the second stage is this: “Taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?”: [23].

In this case the mother criticised the judge at first instance for eliding the two stages of the process, a submission that was not accepted. However, the Court of Appeal did accept that the judge had not expressed a clear view about the merits of the application at the second stage, which he should have done. Per Peter Jackson LJ at paragraphs 47 and 48:

“47. In cases where a court that is refusing leave to oppose at the first stage also considers that the application would also fail at the second stage, it has for some years been good practice to state that conclusion, giving brief reasons, as an alternative basis for the decision. That practice should be followed in all cases where the court feels it to be appropriate. By drawing attention to the welfare of the child, it enables applicants to have a wider understanding of why their application has not succeeded. Further, if there is an appeal against the decision at the first stage, it may be important for the parties and the appeal court to know what the judge would have decided at the second stage. In some cases an appeal may have to be allowed and an adoption order set aside because the court has not taken this belt and braces approach.

48. In the present case, the judge could, and in my view should, have said that, on the assumption that he was wrong about change of circumstances, the application would have failed at the second stage. The prospects of the birth parents successfully opposing the making of an adoption order lacked any solidity and there could be no possible welfare benefit to A in giving them leave to pursue their entrenched opposition at the final hearing. It was, in short, a very clear case in which birth parents had failed to satisfy the court that the plan for adoption should be revisited, and the judge should have said so."

Ultimately the Court of Appeal decided in this case that, despite ‘shortcomings’ in the judge’s judgment, the decision to refuse the application for leave to oppose the making of an adoption order was not wrong.

The Court of appeal was also critical of the fact that the judge made the adoption order on the same day as refusing the mother’s application. The Practice Guidance (Adoption: Final Hearings) [2018] 1 WLR 2232 is clear that a parent’s application for leave to oppose the adoption application and the final hearing of the adoption application should not be listed on the same day and that no fewer than 21 days should elapse between the refusal of leave and the listing of the final hearing.

Peter Jackson LJ makes the following observations about the first instance judge’s decision to make the adoption order:

“51. The making of the adoption order at the same time as the decision on the application for leave to oppose was procedurally irregular. The local authority should not have asked the judge to make the order and he should not have made it, particularly as the birth parents were quite likely to want to take the matter further.

52. As Re W shows, there are several reasons why the Guidance must be followed in almost every foreseeable circumstance. First, an adoption order is the most fundamental order in the court’s repertoire and there is no excuse for procedural informality. Second, because birth parents are entitled to exercise their right to seek permission to appeal in accordance with the rules, and they should not have to fall back on an appeal process to vindicate that right. Third, it avoids a final adoption order having to be set side if an appeal from the interlocutory leave to oppose order should succeed. Fourth and in consequence, disregard of the Guidance may overshadow an important time in the lives of two families, by creating painful anxiety for adopters and unfairly raising the hopes of birth parents. Take the present case, where the appeal process has taken four months and shifted the focus from where it ought to have been. The birth parents have not had to use this time to grieve A’s formal adoption, and the adopters and their family have not been able to unconditionally celebrate A becoming a full member of their family. Matters might have been worse still if the applicant had not made her application to this court so promptly, as a later application for permission to appeal out of time would doubtless have caused anxiety, even if an extension of time was refused.

53. Had the judge’s decision on leave to oppose an appeal been set aside on appeal, the adoption order would necessarily have been set aside: Re W at [28-29]. However, in circumstances where permission to oppose was correctly refused and where the applicant has had a full opportunity to put her case before this court, I do not consider it arguable that the procedural irregularity led to any substantive injustice. On the contrary, it would be unjust to the adopters and to A if this unwitting error led to the need for the adoption order to be set aside and remade. The application also fails on this ground.”

Oliver Millington is a barrister at Deka Chambers.