Leave to Oppose Adoption Requires a Substantial Case, Not Proof of Probable Success

1. Introduction

This judgment clarifies an important distinction in adoption proceedings: deciding whether a parent should be permitted to oppose adoption is not the same as deciding whether adoption should ultimately take place. The Court of Appeal held that a mother who had demonstrated substantial positive changes should have been allowed to contest the adoption application. The Family Court had effectively demanded too much at the permission stage and had attached excessive weight to the uncertainty associated with further proceedings.

The decision does not introduce a new statutory test. Rather, it reinforces established authority requiring applications under section 47(5) of the Adoption and Children Act 2002 to remain a meaningful safeguard. A parent must present a substantial case deserving consideration, but need not establish that opposition will probably succeed.

The appeal concerned a four-year-old child, D, who was living with a prospective adopter. The mother sought permission to oppose adoption after making significant progress in addressing the difficulties that had led to the child’s removal. Brighton & Hove City Council opposed her application, emphasising the child’s settled placement and the uncertain durability of the mother’s recovery.

2. Background and Procedural History

The original care and placement orders

Care proceedings began in April 2024, when D was approximately 21 months old. The principal concerns involved the mother’s drug and alcohol use, mental health difficulties and exposure to abusive relationships. There was, however, positive evidence about her basic care of D and the quality of their relationship and contact.

Following a contested final hearing in March 2025, HHJ Levey recognised the mother’s vulnerability, traumatic history, candour and commitment to rehabilitation. He nevertheless concluded that the underlying risks could not be resolved within D’s timescale. He refused a residential assessment and made care and placement orders, finding adoption to be the only realistic option capable of meeting D’s long-term welfare needs.

D last saw the mother in September 2025 and moved to the prospective adopter in October 2025. An adoption application followed in January 2026.

The mother’s subsequent progress

In support of her application for permission to oppose adoption, the mother provided evidence of:

• abstinence from drugs and alcohol since August 2025, supported by testing and engagement with recovery services;
• maintenance of abstinence despite significant bereavements;
• completion of psychotherapy;
• stable accommodation;
• the ending of an abusive relationship and a restraining order against the former partner;
• a new relationship described as stable and supportive; and
• care of her younger child, R, without care proceedings, although R remained subject to a Child Protection Plan.

Professionals corroborated important aspects of this account. The local authority accepted that the mother had achieved a significant change, including substantial progress in overcoming substance misuse. Its concern was whether those improvements would endure, especially if she resumed responsibility for D.

The refusal of permission

The Family Court found that the statutory requirement of changed circumstances was satisfied. It nevertheless refused permission at the second, welfare-based stage. The judge considered the mother’s progress relatively recent and insufficiently tested, identified gaps concerning her partner and any proposed return of D, and placed considerable weight on the child’s existing security and permanence.

The mother appealed, arguing that the judge had undervalued her progress, treated evidential gaps as determinative at a preliminary stage, and reached the wrong welfare conclusion.

3. Summary of the Court of Appeal’s Decision

The Court of Appeal unanimously allowed the appeal and granted the mother leave to oppose the adoption application. Lord Justice Peter Jackson gave the substantive judgment, with which Lord Justice Newey and Lady Justice May agreed.

The principal conclusions were:

1. The permission decision requires a broad, practical welfare assessment. It must not become a trial of the adoption application on incomplete evidence.
2. The relevant question is whether there should be an opposed adoption hearing. It is not whether the child should ultimately be adopted.
3. A parent needs a solid case, not probable success. The case must deserve full consideration, but need not be more likely than not to succeed.
4. The evidence did not justify the weight placed on short-term disruption. Although further proceedings would understandably trouble the prospective adopter, there was no reason to believe that D would herself be affected or that the placement would be endangered.
5. Some evidential gaps required professional investigation. In the circumstances, gaps concerning the partner and a rehabilitation plan should not have defeated an otherwise substantial application.

The proceedings were remitted for an early case management hearing before a judge nominated by the Family Presiding Judge. Crucially, the Court of Appeal expressed no view about whether an adoption order should ultimately be made.

4. The Statutory Framework

Under section 47(5) of the Adoption and Children Act 2002, a parent or guardian cannot oppose an adoption application without the court’s permission where the child has been placed with prospective adopters under a placement order. Section 47(7) prevents permission being granted unless circumstances have changed since the placement order.

The resulting assessment has two stages:

1. Changed circumstances: Has there been a relevant change since the placement order?
2. Welfare evaluation: Taking all circumstances into account, and treating the child’s lifelong welfare as paramount, should the court permit opposition to adoption?

Satisfying the first stage does not automatically determine the second. Equally, the second stage must not require a parent to prove the eventual merits before obtaining the opportunity to contest them. The nature and extent of the changes remain important throughout the welfare assessment.

5. Precedents Cited and Their Influence

Re B-S (Children) [2013] EWCA Civ 1146

This was the leading authority and the principal foundation of the decision. The judgment drew on several connected propositions:

• Paragraph 59: A parent’s prospects must be “solid”, rather than merely fanciful, because reopening the proceedings must be consistent with the child’s welfare.
• Paragraph 70: Section 47(5) must provide a meaningful remedy, potentially benefiting both parent and child. The permission test should not be described as “stringent”.
• Paragraph 74(iii): Where circumstances have changed and the parent has solid grounds, the court must consider very carefully whether the child’s welfare really necessitates refusing permission.
• Paragraph 74(vi): The greater the positive change and the stronger the grounds, the more cogent the welfare reasons for refusal must be.
• Paragraph 74(viii): Lifelong welfare requires a long perspective, avoiding excessive emphasis on the immediate consequences of contested proceedings.
• Paragraph 74(ix): Distress or uncertainty experienced by prospective adopters must not receive undue weight.
• Paragraph 74(x): The threshold must not become effectively unachievable.

The Court of Appeal found that the Family Court had correctly identified these principles but had not applied them consistently. Its detailed assessment had effectively become a prediction that the mother would lose, rather than an assessment of whether her case deserved a contested hearing.

Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616

This earlier authority supplied an important warning, repeated through Re B-S: parents should not be discouraged from improving their circumstances or seeking to prevent adoption by an unattainable permission threshold. That warning directly informed the conclusion that the mother’s substantial achievements required meaningful consideration.

M v Warwickshire County Council [2007] EWCA Civ 1084

The court identified this decision, alongside Re P (Adoption: Leave Provisions), as part of the earlier jurisprudence broadly endorsed in Re B-S (Children). The present judgment did not separately analyse its facts or extract an additional rule from it. Its relevance was to the established doctrinal foundation of the two-stage approach.

Re M (A Child: Leave to Oppose Adoption) [2023] EWCA Civ 404

This decision clarified that prospects of success are important but are not an independent or exclusive test. In particular, “more than just fanciful” and “solid” are not interchangeable descriptions: a case can avoid being fanciful without necessarily having sufficient substance.

The essential second-stage question was whether, considering all the circumstances and the child’s lifelong welfare, the court should revisit the adoption plan approved when the placement order was made. The present judgment reinforced that this is a decision about allowing an opposed hearing, not a premature determination of adoption itself.

Re W (A Child: Leave to Oppose Adoption) [2020] EWCA Civ 16

This authority supplied the procedural warning central to the appeal: the permission application must not develop into a trial of the adoption application on incomplete evidence. A solid case is one with sufficient substance to require full consideration before adoption is decided.

The quoted passage also explained that expert or oral evidence would not ordinarily be expected at the permission stage. If the court seriously considers such evidence necessary, that may indicate that permission should be granted. This supported the conclusion that unresolved professional assessment questions should not have been treated as decisive against the mother.

Re H (A Child) [2015] EWCA Civ 1284

Borrowing an expression from a different context, the court said the question was whether the parent’s case was a “runner”, not a “winner”. This was an explanatory analogy, not the importation of a separate statutory test. It captured the difference between a substantial case deserving adjudication and a case already shown likely to prevail.

R (A Child: Leave to Oppose Adoption) [2026] EWCA Civ 673

The court cited this as a recent decision following Re B-S (Children). It did not undertake a separate factual comparison or identify an additional proposition from it. Its significance was to demonstrate the continuing application of the established framework.

The reference to Re B

Through its quotation from Re B-S, the court recalled Re B and the principles that adoption is a “last resort” and permissible only where “nothing else will do”. These principles explain the importance of allowing a substantial challenge to be heard. They do not displace the paramountcy of the individual child’s welfare or predetermine the outcome of the eventual hearing.

6. Analysis of the Legal Reasoning

A permission decision must remain distinct from the final merits

The central error was a mismatch between the question formally identified and the question effectively answered. Although the Family Court recognised that it was considering permission, its assessment of whether the mother’s prospects were “sufficiently strong” became, in substance, a judgment that she would not succeed.

The distinction is consequential. At the final adoption hearing, the court must determine the adoption application on the evidence then available. At the permission stage, it asks whether the changed circumstances and welfare considerations justify reopening that substantive examination. Requiring proof of likely success risks preventing the very investigation needed to reach an informed final decision.

Nevertheless, the Court of Appeal did not endorse permission whenever opposition is merely arguable. The application still needs substance, and the child’s welfare remains paramount.

Substantial change must have practical significance

The mother’s progress was not speculative or supported only by assertion. It covered the principal areas underlying the original intervention and was substantially corroborated. The Family Court accepted that it was genuine and substantial.

Those findings mattered beyond opening the statutory gateway. Under Re B-S, substantial positive change increases the strength of the case for reconsideration and requires correspondingly cogent welfare reasons if permission is refused. The Court of Appeal considered this a clear case in which refusal would undermine the meaningful remedy Parliament intended.

Lifelong welfare includes the value of a properly informed decision

The judgment’s most distinctive welfare insight appears at paragraph 38. The court recognised that permission could benefit D even if adoption ultimately remained the correct outcome.

D would grow up knowing about the mother and sibling, and face-to-face contact was a possibility. If adopted, she could later need to understand whether adoption remained necessary despite the mother’s improvements. If adoption was no longer appropriate, refusing permission would prevent the court from reaching that conclusion.

This reasoning treats proper scrutiny as potentially valuable to the child’s future understanding of her life and family relationships. It does not make litigation beneficial in every case, but it shows why the welfare analysis cannot be confined to immediate stability.

Placement stability matters, but its threatened disruption needs evidential support

The court acknowledged the prospective adopter’s understandable anxiety and praised her focus on D’s needs. It did not dismiss the value of D’s secure placement.

The difficulty was the absence of evidence that allowing a contested hearing would affect D herself or put the placement at risk. The Family Court had therefore given excessive weight to an assumed short-term welfare consequence. Anxiety for an adult and harm to a child are related possibilities, not automatically equivalent facts.

Evidential gaps must be assessed in context

The Family Court had legitimately identified unanswered questions about the mother’s partner and how any return of D might work. The appellate objection concerned the use made of those questions.

The mother had already provided substantial evidence. Some remaining matters required professional assessment and input, rather than further unsupported assurances from her. Treating those unresolved issues as fatal risked making permission depend on completing the assessment that a contested process would enable.

The judgment does not establish that every evidential gap favours permission. It distinguishes questions requiring time from those capable of clarification through further evidence and emphasises a practical, case-specific assessment.

Existing guidance was sufficient

The local authority invited further guidance if the appeal succeeded, suggesting that substantial-change cases might require more detailed scrutiny of prospects and welfare. The court declined: existing guidance applied to stronger and weaker applications alike. Indeed, excessive detail could itself obscure the preliminary nature of the decision.

7. Practical and Wider Impact

The judgment is likely to influence both the preparation and determination of applications for leave to oppose adoption.

• For judges: Reasons should distinguish the consequences of permitting opposition from the consequences of eventually refusing adoption or returning the child home.
• For parents: Corroborated improvement remains important. Permission requires a substantial case, but not proof that rehabilitation or opposition will succeed.
• For local authorities: Arguments based on delay, uncertainty or placement disruption should identify their actual implications for the particular child, rather than assume harm.
• For evidence and case management: Courts should distinguish genuine deficiencies in an application from issues appropriately investigated after permission.
• For welfare analysis: Immediate security must be considered alongside family relationships, identity and the lifelong significance of a properly examined adoption decision.

The decision does not create an automatic entitlement to reopen adoption whenever a parent improves. Nor does it diminish the importance of secure adoptive placements. Its effect is to ensure that those considerations operate within the correct permission framework.

8. Complex Concepts Simplified

Placement order

An order authorising a local authority to place a child for adoption. It is distinct from the later order completing the adoption.

Leave to oppose

Permission to contest the adoption application. Obtaining it does not mean adoption will be refused or the child returned home.

Statutory gateway

The initial requirement that circumstances have changed since the placement order. Passing it allows the court to consider whether permission should be granted.

A “solid” case

A case with enough substance to deserve full consideration—not merely an unrealistic possibility, but not necessarily a probable winner.

Paramount welfare

The child’s welfare is the court’s overriding consideration. In adoption proceedings, the assessment extends throughout the child’s life.

A trial on incomplete evidence

A preliminary hearing improperly used to decide the eventual outcome before the evidence needed for that decision has been obtained.

9. Conclusion

G (A Child: Leave to Oppose Adoption) reinforces the distinction between a substantial challenge deserving a hearing and a challenge already shown likely to succeed. The mother’s evidenced progress justified the former; the Family Court had effectively demanded the latter.

The broader significance is that lifelong welfare may require scrutiny of whether adoption remains necessary, rather than simply preservation of an apparently settled course. Granting permission opened that inquiry. It did not answer it.