ON APPEAL FROM THE FAMILY COURT AT TELFORD
HHJ Lopez
WV133/25
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE PETER JACKSON
LORD JUSTICE BAKER
And
LORD JUSTICE DOVE
R (A Child: Leave to Oppose Adoption)
Sharmeen Quadri (instructed by direct access) for the Appellant Mother
Lorna Meyer KC and Kirsty Gallacher (instructed by Shropshire Council Children Services) for the Respondent Local Authority
The Respondent Father did not attend and was not represented
The Child was not a party and was not represented
The Respondent Adopters did not attend and were not represented
Hearing date : 21 May 2026
Approved Judgment
This judgment was handed down remotely at 10.30am on 28 May 2026 by circulation
to the parties or their representatives by e-mail and by release to the National Archives.
.............................
Lord Justice Peter Jackson :
Introduction
This is an application for permission to appeal from an order of HHJ Lopez, dated 13 January 2026, by which he refused an application for leave to oppose the making of an adoption order in respect of A, a little girl who will soon turn 3. The applicant is A’s birth mother. Having refused the application, the judge went on to make an adoption order.
A has never lived with the applicant. When she was two days old she was placed with foster carers, and she has lived with them ever since. In October 2024, the same judge made a care order and a placement order. In March 2025, her foster carers were approved as adoptive parents and in July 2025 they applied for an adoption order. In September 2025, the applicant applied for leave to oppose the making of an adoption order.
The applicant contends that there were errors and irregularities in the treatment of her application at the final hearing in January 2026. She seeks permission to appeal and an order allowing the appeal. She then asks us to set aside the judge’s order, to set aside the adoption order, and to remit her application for leave to oppose to the Family Court, or to decide it ourselves on the basis of the updating statements for which permission has been given.
At the end of the hearing, we announced that permission to appeal would be refused. The applicant is right to say that there were certain shortcomings in the judge’s treatment of her application, but it is not in my view arguable with a real prospect of success that his decision was either wrong or unjust. The application was fairly considered on its merits and the outcome was inevitable. The irregularity in the making of the adoption order at that hearing has been addressed by the subsequent appeal process and there has been no substantive injustice.
Although this is a permission decision, we heard full argument. The application raised matters of practice and procedure that require guidance and we therefore give permission for our decision to be cited.
The events in this case underline that:
When the court is considering applications for leave to apply to discharge a placement order or to oppose the making of an adoption order, it should articulate the legal tests correctly.
Where the court refuses such an application at the first stage because it is not satisfied that there has been a change in circumstances since the making of the placement order, and where it has a clear view that the application would in any event have failed at the second stage for welfare reasons, it should state and briefly explain this as an alternative basis for its decision.
An adoption order should never be made on the same occasion as an order refusing leave to oppose. Paragraphs 11-14 of the Practice Guidance (Adoption: Final Hearings) [2018] 1 WLR 2232 should be followed.
The background
There is a very significant history. The birth parents began their relationship in September 2021. At that time the applicant had three children who were living with her. The birth father also had three children who were living with their mothers. Proceedings began at the end of 2022 in respect of the applicant’s three children and two of the birth father’s children, and those five children were removed into local authority care. No proceedings were taken in respect of the sixth child, who lives with her mother.
A is therefore the fourth child of each of her birth parents, and their only joint child. Proceedings were issued in her case when she was born in June 2023 and she was placed in foster care.
The proceedings in relation to all six children came before the judge at two very substantial hearings. On 13 February 2024, he found the threshold to be proved after a fact-finding hearing and on 24 October 2024 he made final welfare orders. These hearings lasted for 19 days in total and the two judgments span 160 pages.
At the first hearing the court made serious findings, including neglect, sexual harm, physical and emotional harm, aggression and violence in the household, and failure by each adult to protect the children. Specifically:
The birth father had repeatedly physically abused five children across three relationships, including one of the applicant’s own children.
The applicant had also repeatedly physically abused that child.
The applicant had neglected the care of her three older children through poor home conditions (described by the judge as being nothing less than squalid on occasion), poor hygiene, dirty/dishevelled presentation, inconsistent bedtimes and routines and unmet health needs. The birth father failed to take any protective action.
The applicant and the birth father caused sexual harm to the three older children, including by way of exposure to sexual activity between themselves and access to sexually explicit material resulting in at least two of the children developing inappropriate sexual knowledge and behaviours.
As a result of the birth father’s behaviour the three older children were frightened of him.
The three older children were emotionally abused by the applicant, including by attempts to silence and/or persuade one of them to retract revelations about the home conditions.
The applicant, being aware of the risk of physical harm the birth father posed to the three older children allowed him into their home, prioritised her relationship with him, and chose not to believe her own children.
In July 2024, the birth father suffered a stroke, from which he has recovered.
At the welfare hearing on 24 October 2024, the judge made care orders in respect of all of the children, and placement orders in respect of A and the birth father’s two younger children. He noted that neither parent accepted the court’s most serious findings of fact and he concluded that the same risks remained if the children were returned. There were no steps that could be taken to reduce or mitigate what the judge described as the significant and multifaceted risks.
In fact, the birth parents had not asked the court to place A in their care. Instead their case was that she should remain in foster care while they were given the opportunity to undertake work with a view to improving their understanding of the problems with their parenting. The judge found that this proposal had no sound evidential basis. He noted that the nature of such work remained unspecified, even at the conclusion of the case, and that the timescales were unknown. The professional witnesses all indicated that any work would require a much greater level of acceptance of the previous difficulties and that, given the birth parents’ stance at the time, there was little prospect of any meaningful change, even if work was undertaken.
The judge reached the very clear conclusion that adoption was in A’s best interests. He found that the risks posed by the birth parents were so serious as to justify it. He dispensed with their consent and made a placement order.
In March 2025, A was matched with her foster carers as prospective adopters and contact with the birth parents took place for the last time. On 25 July 2025, the adoption application was made.
By its orders, the court firmly approved a plan for A to be adopted. However, the birth parents have never accepted that. On 28 July 2025, days after the adoption application was filed, they applied to this court for an extension of time for appealing and for permission to appeal from the 2024 findings of fact and welfare decision. On 7 October 2025, I refused an extension of time for appealing from the 2024 decisions and, for completeness I refused permission to appeal. It appears that the birth parents then attempted to pursue an appeal to the Supreme Court. When that did not avail them, they applied for my decision to be reopened; I refused that application on 17 November 2025.
Meanwhile, on 16 September 2025, the birth parents had applied for leave to oppose the making of an adoption order. Although they were entitled to legal aid for that application, they represented themselves.
The effect of these applications was that the adoption hearing, which had been listed for 4th November 2025, was adjourned until 13 January 2026.
The hearing before the judge
The local authority was represented by a solicitor, with the prospective adopters’ social worker and the team manager of A’s social worker being in attendance. The mother appeared in person, speaking for herself and the birth father, who was working abroad. The judge had the benefit of the Annex A report, dated July 2025, a statement from the applicant dated 29 December 2025, and a statement from A’s social worker dated 6 January 2026. No statement was provided by the birth father.
The applicant’s statement of nine pages confirmed that she and the birth father remained a couple. It included these passages:
“Since the placement order was made, my circumstances, insight, emotional stability, and understanding of children’s needs have changed significantly. My life now is completely different to how it was at the time of proceedings...Iam now in a much stronger position to understand and meet A’s emotional, developmental and relational needs.”
…
Addressing the Findings of the Court
I want to address this carefully because I do not accept that the findings made by the Court were an accurate reflection of what happened, and my appeal history reflects that position…
The findings included allegations of physical harm against myself and [birth father]. I want the Court to be very clear:
• I do not accept that I ever physically harmed any of my children, and neither did [birth father]
• However, I do understand why the Court had concerns based on the evidence it saw at the time.
• My learning has helped me understand safe care, emotional safety, and protective parenting in a much deeper way.
…
I believe A’s welfare requires the Court to grant permission because:
• My change in circumstances is significant, meaningful and supported by evidence
• The original assessment relied on the idea that “no change was possible,” which is now disproven
• A has not seen us for almost a year, and such a drastic, irreversible decision should not be made without the most current evidence
• I can now demonstrate protective parenting, emotional stability, and insight into children’s needs
• A’s identity, heritage and sibling relationships are extremely important and will matter more as she grows
• Adoption permanently cuts legal and emotional identity ties and is the highest threshold in law
• We can offer a slow, child-led, therapeutic transition that supports A’s welfare
• We are willing to maintain her relationships with her carers if she wishes, showing child-focused thinking”
The statement was supported by evidence that the applicant had undertaken a number of online courses: one in 2021, two in 2022 and eight in 2025. She had also undertaken eight sessions of CBT therapy and had completed a safeguarding course in November 2025.
The social worker’s statement described a very strong bond between A and the prospective adopters, who were meeting her needs to an exceptionally high standard. The author did not believe that there had been any significant changes since the placement order was made, and expressed the opinion that it would not be safe for A to be placed with her birth parents.
The transcript of the hearing shows it to have lasted for some 50 minutes, falling between 13.00 and 14.00. The local authority solicitor opposed the grant of leave, saying that “there has not been significant enough change”. The applicant spoke on behalf of herself and the birth father. The judge commented that he knew her well, as she had been in his court many times. He engaged directly with her over the course of six pages of transcript, giving an explanation of the legal framework. In the course of that, he stated:
“… effectively, you have got to show me that there has been a significant change in your circumstances…”
“So, it is a two-stage process. Have you made significant changes? … And even if you have, and even if the Court gives you permission to oppose the making of the order, the Court then got to consider, in light of all the material, whether it is in the welfare interest of the child for that to take place.”
The applicant stated that her case had been put on paper, but that any decision should be made on the basis of up-to-date evidence and that reassessment would test change, with a view to A living with them in due course. She argued that insight could be learned regardless of acceptance of the findings. She had learned that safeguarding was about prevention, not reaction.
Having said that he completely accepted that the birth parents loved A, the judge gave an extempore judgment of some five pages. After setting out the history, he quoted extensively from the applicant’s statement and he summarised the changes that she relied upon:
“20. Therefore, in fairness to this mother who looks after her grandmother, who I think lives with dementia and also assists [father] when he needs it, the mother has set out that she has, in fairness for her, undertaken a considerable number of courses. She sets those out in the document, and I am not going to repeat them, but she has also set out the certificates that she has obtained for being involved in those documents. Just to name a few that she did with Family Lives, sibling arguments and how to manage them, let us play, bringing up confident children, parents together.
21. Also, she has carried out some talking therapies work and she sets all of the matters she has done. Understanding your own trauma, understanding your child's mental health and wellbeing, understanding your relationships, understanding your child from toddler to teenager, understanding the impact of the pandemic on your child and I say some others as well. They are numerous and I have given a flavour of what they are.”
Having reviewed the local authority’s position, the judge continued and concluded:
“24. The mother knows the test very well, but I will discuss it during the course of this hearing. However, effectively, what the mother has to show and she is representing [father] as well. What the parents have to show is that there have been significant changes since the making of the placement order. Mother says, “Well, there would be no concerns about any children since that time.” Well, of course, that is correct, but no children have been living in the care of the mother or the father.
25. Mother's older children are placed elsewhere. Father's older children are placed elsewhere and A has not been placed with them. It is true that the mother has undertaken a significant number of courses in terms of developing understanding of children, in terms of developing how to assist children's upbringing, in terms of assisting children to keep them safe and so on. She is to be congratulating for doing that work. That must have been very difficult to do.
26. However, it is absolutely clear to me from what the mother puts in her documents because this is an honest mother. She tells me what she thinks. She does not try and hide it. She never did. She always tells me what she thought in these proceedings, but neither she or [father] really believed any of the findings that I made about them at all, and they were significant findings about the care that was provided to children and their behaviour towards children. Therefore, I have no doubt that the mother has done all of the work that she said, but it seems to me if it has had any effect upon her at all, it is considerably very – I [re]phrase that.
27. If it has had any effect upon the mother at all, it is a very limited effect because this mother does not accept that she is at risk to A. She does not accept that she behaved in a way that was inappropriate, deliberately or even inadvertently towards the other children, and she certainly does not believe that [father] behaved in that way either.
28. Sadly, I come to the inevitable conclusion that on the totality of the evidence that is before me, all the evidence that was and all the evidence that is there, this mother and Father do not accept any of the concerns. Placing the child in their care would cause considerable worry and concern, but that is not the test that I am applying. That the reality is, has the mother shown that there has been significant change in her circumstances and those of the father, that she has undertaken some work, I have no doubt. That it does not have any real effect upon her thinking, her processing, her understanding is inevitable not only from the papers, but also from what the mother tells me. Therefore, the mother's application and the father's application for permission to oppose the making of the adoption order is refused.
29. Therefore, I will just mention that this is, of course, a case where even if the Court had said yes to that there would be a considerable hurdle for this mother and father to overcome bearing in mind the welfare test would then have to be applied in determining what should happen, and that A has lived effectively with her prospective adopters from her birth. That is not the basis of the decision that I have made. The basis is that there is not sufficient change on the part of the mother or the father. Therefore, I refuse your permission, Ms [name].”
The judge then asked the solicitor what order she sought. The solicitor invited the judge to make the final adoption order that day, noting that there was a plan for letterbox contact twice a year. The judge made the order, stating that he was totally satisfied that it was the appropriate order, and the hearing ended.
Leave to oppose adoption
The application for leave to oppose the making of the adoption order fell under s.47 Adoption and Children Act 2002. Subsection (5) provides that, where a child was placed for adoption under a placement order, a parent or guardian may not oppose the making of an adoption order without the court’s leave. Subsection (7) provides that the court cannot give leave unless satisfied that there has been a change of circumstances since the placement order was made.
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:
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.
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.
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].
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].
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)].
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].
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].
Listing arrangements
The Practice Guidance (Adoption: Final Hearings) [2018] 1 WLR 2232 states:
“Application for leave to oppose
11 The court shall never list the parent’s application for leave to oppose the adoption application, and the final hearing of the adoption application on the same day.
12 If an application for leave to oppose the adoption is listed and determined, and is unsuccessful, the court may then list the application for final hearing.
13 No fewer than 21days shall elapse between the refusal of leave and the listing of the final hearing (McFarlane LJ in In re B (A Child) [2013]) (which is now likely to be the final adoption hearing). It is not appropriate to abbreviate this time-period.
14 While it may be possible for the judge to indicate, when dismissing an application for leave to oppose an adoption application, that an adoption order is likely, on the basis of the current information, to be pronounced at the next hearing (see Sir James Munby P in In re W (A Child) (Adoption Order: Leave to Oppose) (Practice Note) [2014] 1WLR 1993, para 30; In re W (Adoption: Procedure: Conditions) [2016] 1 FLR 454), it should not be forgotten that at the listed final hearing it is still open to another party (i e one who has not been refused permission to oppose the adoption application) to “attend . . . and, subject to paragraph (2), be heard on the question of whether an order should be made: rule 14.16.””
This Guidance followed the decision of this court in In re W (A Child) (Adoption Order: Leave to Oppose); In re H (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177, [2014] 1 WLR 1993 (‘Re W’). These were cases in which adoption orders, made at the same time as applications for leave to oppose were dismissed, had to be set aside when the appeals of birth parents from the refusal of leave to oppose succeeded. As Sir James Munby P stated:
“30 It is profoundly unsatisfactory that an adoption order has to be set aside in circumstances where, even though the appeal has been allowed, the end result of the process may still be that the child is adopted.”
At an earlier stage, Sir James said this about the approach of this court to decisions made before In Re B-S:
“16 Plainly, in the case of judgments given before the decision in In re B-S the Court of Appeal must have regard to and make appropriate allowance for that fact. The focus must be on substance rather than form. Does the judge’s approach as it appears from the judgment engage with the essence? Can it be said, on a fair reading of the judgment taken as a whole – a fair and sensible reading, not a pedantic or nit-picking reading – that the judge has directed his mind to and has provided answers to the key questions?
17 Thus, for example, the mere fact that the judgment recites passages from the earlier authorities in which the phrases “exceptionally rare” or “stringent” appear will not, without more, mean that an appeal is likely to succeed. Nor, to take another example, will the mere fact that the judgment does not engage with matters referred to in para 74 of In re B-S. What is crucial is the effect of the judgment read as a whole.”
Although this is directed to the situation that arose at that time, it states a valid general proposition.
It is also worth noting that in each of the cases in Re W, the birth parents’ appeals succeeded because of a lack of clarity in the application of the two-stage test.
The test for permission to appeal
Permission to appeal may be given only where (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard: CPR 52.5. An appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court: CPR 52.21(3).
The present application
On 30 January 2026, the applicant issued her Appellant’s Notice. She advanced six grounds of appeal, which can be labelled in this way:
Misdirection of law to equate acceptance with insight.
Misdirection to fail to consider the possibility of reassessment.
Failure to conduct a child-specific analysis.
Unfairness in making an adoption order on same day.
Inadequate and speculative reasoning about risk of harm.
Failure to address the applicant’s efforts in undertaking safeguarding training.
On 20 March 2026, I directed that the application should be listed for an oral hearing, with appeal to follow if permission was granted.
Before us the applicant was represented by Ms Quadri who, due to a misunderstanding of the court’s directions, appeared by CVP. The local authority was represented by Ms Meyer KC and Ms Gallacher. We are grateful to them all for their clear and helpful written and oral submissions.
Ms Quadri submitted that:
The applicant accepted the court’s findings or, more precisely that the findings had been made and that that some of them were justified. The court was entitled to evaluate that position, but the lack of a wholesale acceptance of the findings should not have been treated as fatal to the application.
The judge should have respected the two stage process, but he allowed considerations of welfare to silently raise the threshold at the first stage.
The judge’s reasons were inadequate to show why the first stage threshold had not been crossed.
The judge did not explain why the risks to the older children extrapolated into risk for A.
To have made an adoption order, with its fundamental consequences, on the day of the hearing in breach of the guidance provided a compelling reason for an appeal to be heard. The decision could not safely stand after such procedural compression.
As to next steps, Ms Quadri confirmed that the applicant wanted to undergo further assessment to see whether A might be placed in her care and that of the birth father. That indeed was the position presented to the judge in October 2024 and again in January 2026.
Ms Meyer KC’s opposing submissions proceeded in three stages:
The judge had a wealth of knowledge of the birth parents, having witnessed them give evidence twice in 2024. That gave him a clear view of the baseline from which change was to be assessed. The record shows that their expressions of insight were very much the same as they were at the time of the welfare hearing. The judge was entitled to find that, if the courses undertaken by the applicant had had any effect upon her, it was very limited, and there was very little information at all about the birth father. The judge’s four references to the need for “significant” change, may have been slips of the tongue or a response to the submissions made to him, which respectively asserted and disputed that change had been significant. These uses of the word were not meaningless but the judge was aware that change needed to be “sufficient”, as his final statement showed.
It might be good practice for the judge to have declared his position in relation to the second stage of the exercise, but there was no requirement in the case law for him to do that.
To have made an adoption order on the same day was not appropriate. It is a very significant order. However, it has not operated unfairly because an application to this court has been launched and heard.
At this point I should mention the position of the adoptive parents in relation to this application. As with the hearing before the judge, they have been aware of the proceedings and they observed them by livestream, but they have not played an active part. That was pragmatically justifiable because the local authority has been active in resisting the application for permission to appeal. However, had matters reached the point where there was a real possibility of the adoption order being set aside, we would certainly have given them the opportunity to be heard before taking a decision about that matter; as it is, the adopters have not been drawn into a situation that is not of their making.
Analysis and conclusion: leave to oppose
Before coming to the more detailed arguments, I would step back. Having done so, it can be seen that this application for leave to oppose was a very weak one. At the first stage, it relied on one tenuous form of change in respect of just one of two cohabiting birth parents. At the second stage it concerned the prospects of success in opposing the adoption of a child who was virtually as full a member of her prospective adoptive family as if she had been born into it. Moreover, the birth parents accepted that they could not be considered as carers without further assessment. In overview, this was an application that was bound to fail. As the prior appeal history showed, it sprang from the birth parents’ continuing inability, however understandable, to accept the plan for adoption that resulted from the substantial and recent litigation.
It is therefore unexpected that the application for leave to oppose should have given rise to difficulties. However, I remind myself of the circumstances in which the decision was taken. It would appear that the hearing took place during the court’s normal lunch hour and the judge may have accommodated it in the middle of his list. It can be seen from the transcript that he approached the hearing with courtesy and patience and that the applicant had every chance of presenting her application as she wished. The judge then gave his decision on the spot. I bear this in mind when considering the criticisms of the way in which he expressed himself.
I start with the framing of the test at the first stage. This is not a formal ground of appeal, but it is true that the judge stated four times that the applicant had to show “significant” change. As he will have known, that formulation has been disapproved in decisions going back to 2007 on the basis that the statue contains no such intensifier and that birth parents should not be discouraged from improving themselves. The repeated use of the word was therefore inapt. However, I do not consider that it had any effect on the substance of the decision, for the following reasons.
First, because the judgment and the surrounding transcript must be read as a whole, with an awareness of the conditions in which the hearing was taking place. Second, because the judge found that the work on which the applicant relied had not had “any real effect upon her thinking, her processing, her understanding” (my emphasis). Third, because he refused the application because “there is not sufficient change”. Taken together, these matters show that the judge was applying the correct test or at least that the misdescriptions did not lead to any error of substance.
The submission that the judge wrongly equated insight with change does not assist the applicant in the circumstances that arose here. I would accept that it would be wrong to equate the two concepts as a general rule. Some applications for leave to oppose rely on a range of asserted changes. For example, an applicant may rely on recovery from addiction, or escape from a dangerous relationship, or strikingly improved material circumstances, or to a combination of matters of that kind. In such cases, the fact that an applicant may not entirely accept the court's findings may be just one of a number of matters to be considered. Here, however, insight and change coincided because the application was based on just one assertion:
“…my circumstances, insight, emotional stability, and understanding of children’s needs have changed significantly. My life now is completely different to how it was at the time of proceedings.”
It was up to the birth parents to satisfy the court that there had been a change of circumstances. The applicant’s claim was based on self-report and a commendable but limited amount of educational and therapeutic work, and with no similar claim being made in respect of the birth father. Moreover, the asserted change was said to have been made despite a significant degree of rejection of the court’s findings, mirroring the position taken at the welfare hearing in 2024. The judge was in a good position to make the comparison and it is not surprising that he found that there had not been a change in circumstances.
The submission that the judge elided the two stages of the process gains no support from the transcript, and I do not accept that he silently raised the threshold at the first stage for welfare reasons, indeed his concluding paragraph makes clear that he did not. I also reject the submission that his reasoning was insufficient: he squarely rejected the applicant’s claim that there had been a change in her thinking. There is also nothing in the complaint that the judge did not explain why the risks to the older children extrapolated into risk for A: it was obvious that actual mistreatment of three children created a likelihood of significant harm to a fourth child. When considering whether there were grounds for the plan for adoption to be revisited, the court was not required to undertake a full welfare assessment, still less to contemplate further assessment of the birth parents.
It is however unfortunate that the judge did not go on to express a clear view about the merits of the application at the second stage. That he had a clear view of them is evident:
“… there would be a considerable hurdle for this mother and father to overcome bearing in mind the welfare test would then have to be applied in determining what should happen, and that A has lived effectively with her prospective adopters from her birth.”
Despite that, he stated in terms that he was not deciding the application on that basis.
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.
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.
However, that is not a complaint made by the applicant, and for the reasons previously given I conclude that the refusal of the application for leave to oppose the making of the adoption order was not wrong. It was in fact the right order, despite the identified shortcomings.
I finally turn to the circumstances in which the adoption order was made.
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.
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.
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.
Outcome
We refused permission to appeal. The adoption order made on 13 January 2026 stands.
Lord Justice Baker :
I agree.
Lord Justice Dove :
I also agree.
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