The Court of Appeal refused a birth mother permission to appeal against a refusal of leave to oppose adoption, but gave guidance on stating the legal tests and on not making an adoption order on the same occasion as refusing leave.
Key facts
- Who: Birth parents seeking leave to oppose an adoption order, their representatives, local authorities and family judges
- From: Judgment of 28 May 2026
- Source: R (A Child: Leave to Oppose Adoption), Re [2026] EWCA Civ 673
In R (A Child: Leave to Oppose Adoption), Re [2026] EWCA Civ 673, the Court of Appeal (Lord Justice Peter Jackson, Lord Justice Baker and Lord Justice Dove) gave judgment on 28 May 2026 after a hearing on 21 May 2026. The appeal came from the Family Court at Telford (HHJ Lopez).
Background
A, a girl who will soon turn 3, was placed with foster carers when she was two days old and has lived with them ever since. In October 2024 the judge made a care order and a placement order. Her foster carers were approved as adopters in March 2025 and applied for an adoption order in July 2025. In September 2025 her birth mother applied for leave to oppose it.
The earlier proceedings concerned six children in total and involved serious findings against both birth parents, including neglect, physical, emotional and sexual harm, and failures to protect.
On 13 January 2026 the judge refused leave to oppose and then made the adoption order at the same hearing.
The question
The mother sought permission to appeal on six grounds, including that the judge wrongly equated acceptance with insight, did not carry out a child-specific analysis, gave inadequate reasoning about risk, and acted unfairly in making the adoption order on the same day.
The decision
Permission to appeal was refused. The court accepted there were some shortcomings in the judge's treatment of the application, but held it was not arguable with a real prospect of success that his decision was wrong or unjust. The application was fairly considered on its merits and the outcome was inevitable. The irregularity in making the adoption order at that hearing had been addressed by the subsequent appeal process, and there was no substantive injustice.
Although this was a permission decision, the court heard full argument and gave permission for it to be cited, because the application raised matters of practice and procedure that required guidance.
The guidance
The court said:
- When considering applications for leave to apply to discharge a placement order or to oppose an adoption order, the court should articulate the legal tests correctly.
- Where leave is refused at the first stage because the court is not satisfied there has been a change in circumstances since the placement order, and 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. Paragraph 13 says no fewer than 21 days shall elapse between the refusal of leave and the listing of the final hearing.
What this means for birth parents and their representatives
The Court of Appeal has restated that courts considering leave to oppose adoption should set out the legal tests correctly and, where relevant, explain any alternative welfare basis for refusing leave.
It has also said that an adoption order should not be made on the same occasion as a refusal of leave to oppose, and that the Practice Guidance on listing, including the 21-day period, should be followed.
In this case the court found that the irregularity of a same-day adoption order had been addressed through the appeal process and that there was no substantive injustice.
Sources
- R (A Child: Leave to Oppose Adoption), Re [2026] EWCA Civ 673, Court of Appeal (Civil Division), 28 May 2026