Leave to Oppose Adoption: Correct s.47 Two‑Stage Analysis, “Belt-and-Braces” Alternative Findings, and a Prohibition on Same‑Day Adoption Orders

1. Introduction

In R (A Child: Leave to Oppose Adoption) [2026] EWCA Civ 673, the Court of Appeal (Civil Division) (Lord Justice Peter Jackson, Lord Justice Baker and Lord Justice Dove) refused a birth mother’s application for permission to appeal against a Family Court order refusing her leave to oppose an adoption under s.47 Adoption and Children Act 2002. The Family Court (HHJ Lopez) had, immediately after refusing leave, proceeded to make an adoption order in respect of a child (“A”), who had lived with the foster carers (later the prospective adopters) since she was two days old.

The appeal was advanced on multiple grounds, including alleged misdirection in the “change of circumstances” test, inadequate reasoning, failure to conduct a child-specific analysis, and procedural unfairness in making the adoption order on the same day. While permission to appeal was refused, the Court of Appeal gave permission for the decision to be cited because it identified recurring practice and procedural points requiring guidance.

2. Summary of the Judgment

  • Permission to appeal refused: despite shortcomings in the Family Court’s handling of the leave application, the refusal of leave was not arguably wrong or unjust with a real prospect of success.
  • “Significant change” language criticised: the judge’s repeated references to “significant” change were “inapt” because s.47(7) contains no such gloss, but the Court of Appeal held the substance showed the correct approach (“not sufficient change”).
  • Stage 2 (welfare) not expressly decided: the Court described it as unfortunate that the judge did not state an alternative conclusion that leave would have been refused on welfare grounds, but that omission did not justify setting aside the result.
  • Same-day adoption order was procedurally irregular: contrary to the Practice Guidance (Adoption: Final Hearings) [2018] 1 WLR 2232, but the irregularity caused no substantive injustice in this case because the leave refusal was correct and the appeal process afforded scrutiny; the adoption order therefore stood.

3. Analysis

3.1 Precedents Cited and Their Influence

The judgment is firmly anchored in the established jurisprudence governing s.47 leave-to-oppose applications and adoption procedure:

  • In re P [2007] EWCA Civ 616, [2007] 1 WLR 2556
    Cited as foundational authority for the two-stage structure: (1) whether there has been a change of circumstances since the placement order; (2) whether, in light of the child’s welfare, leave should be granted. The Court of Appeal reaffirmed that the statutory test should not be overlaid with an artificially high threshold.
  • In re B-S (Children)(Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563
    Reinforced that s.47 is intended to provide a “real and meaningful remedy” and should not be too narrowly applied. The Court drew on the well-known emphasis at para [74] (as referenced in the judgment) that the welfare-stage evaluation should consider (among other things) the parent’s ultimate prospects and the impact on the child.
  • In re M (A Child) [2023] EWCA Civ 404, [2023] 4 WLR 36
    The Court applied the structured summary given in that case (by Lord Justice Peter Jackson) to restate the modern approach: no “significant” requirement, no “unexpected/unforeseen” requirement, and a welfare-driven evaluation at stage two asking whether the court should revisit the adoption plan approved at placement stage.
  • 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
    Central to the procedural ruling. The Court relied on “Re W” to underline why it is “profoundly unsatisfactory” to make adoption orders on the same occasion as refusing leave to oppose, because if the leave refusal is later overturned the adoption order must be set aside, generating avoidable instability and distress.
  • Practice Guidance (Adoption: Final Hearings) [2018] 1 WLR 2232
    Treated as the operative procedural framework, especially paragraphs 11–14: (i) never list leave-to-oppose and final adoption on the same day; (ii) if leave is refused, only then list final hearing; (iii) at least 21 days should elapse between refusal and final hearing. The Court emphasised these are not merely aspirational norms.
  • In re W (A Child) (Adoption Order: Leave to Oppose) (Practice Note) [2014] 1WLR 1993 and In re W (Adoption: Procedure: Conditions) [2016] 1 FLR 454
    Cited (via the Practice Guidance) for the limited proposition that a judge may indicate adoption is likely at the next hearing on current information, but must still preserve proper procedure and hearing rights at the final stage.
  • In re B (A Child) [2013] (as referred to in the Practice Guidance)
    Supports the 21-day interval between refusal of leave and final adoption hearing, guarding against procedural compression.

3.2 Legal Reasoning

(a) The s.47 framework: two stages, no added “significance” gloss

The Court restated that s.47(7) requires only that the court be satisfied there has been a change of circumstances since the placement order. It does not require the change to be “significant”, “exceptional”, or “unforeseen”. HHJ Lopez’s repeated use of “significant change” was therefore a misdescription.

However, the Court of Appeal treated this as a non-material misstatement on the facts. Reading the transcript and reasons “as a whole”, and in context (a short hearing, extempore reasons), the judge’s conclusion was that there was no sufficient change in the mother’s thinking, processing or understanding, and there was almost nothing to show any change for the father. The Court therefore held the outcome was inevitable even under the correct legal formulation.

(b) “Insight” vs “change”: not synonymous, but aligned on these facts

The mother argued (in substance) that she could demonstrate insight and improved parenting capacity without accepting the earlier fact-finding conclusions. The Court accepted, as a general proposition, that it would be wrong to equate insight with change in every case (since change may be demonstrated through objective events such as sobriety, separation from an abusive partner, improved stability, etc.).

But here the asserted change was essentially a single theme: improved insight/emotional stability said to derive from courses and limited therapy, while continuing materially to reject the gravamen of the findings. Given (i) the recent and extensive findings; (ii) the judge’s direct knowledge of the baseline; (iii) the absence of demonstrated change for the father; and (iv) the child’s lifelong placement within the prospective adopters’ care, the Court held the judge was entitled to find that the claimed change had not occurred in any meaningful way.

(c) Stage 2 (welfare): the “belt-and-braces” expectation

A key practice point emerges from paragraphs 46–48. Even where a court refuses leave at stage 1 (no change of circumstances), it may still have a clear view that the application would fail at stage 2 (welfare). The Court held that, where appropriate, it is good practice to state that alternative welfare conclusion and give brief reasons.

The Court’s rationale was practical and appellate-facing: it helps applicants understand why the application fails; and it assists the appeal court if the stage 1 decision is challenged. Although the Court stopped short of declaring this an absolute legal requirement, the tenor is strongly normative: judges should do this where they can.

(d) Adoption orders must not be made on the same occasion as refusal of leave

The Court’s clearest rule-like guidance is procedural: an adoption order should never be made on the same occasion as an order refusing leave to oppose. Paragraph 51 squarely criticises both the local authority (for inviting the order) and the judge (for making it).

The Court explained why the Guidance matters: adoption orders are uniquely fundamental; parents must be able to pursue appeal rights without fait accompli pressure; and, critically, same-day finalisation risks later mandatory setting aside if the leave decision is overturned (as illustrated by “Re W”), creating avoidable harm to adopters, parents, and—most importantly—the child.

Yet, the Court also delivered an important corrective: even a serious procedural irregularity does not automatically justify setting aside an adoption order if doing so would cause injustice and if the underlying leave refusal was correct. Here, given the lack of merit in the leave application and the full appellate scrutiny that in fact occurred, the irregularity did not produce substantive injustice.

3.3 Impact

  • Reinforced procedural discipline: the decision underlines that the Practice Guidance (Adoption: Final Hearings) [2018] 1 WLR 2232 must be followed; same-day disposal of leave and final adoption is treated as an error, not a harmless convenience.
  • Encourages “alternative stage 2” findings: courts are pressed to give a brief welfare-based alternative conclusion when refusing at stage 1 but already satisfied stage 2 would fail. This should reduce avoidable appeals and the risk of disruptive outcomes.
  • Clarifies how appellate courts assess “significant change” misstatements: repeated use of the wrong adjective may not be fatal if the judgment read fairly shows the correct statutory test was applied in substance; the focus remains on whether the decision is wrong or unjust (CPR 52.21(3)).
  • Practical consequences for local authorities and listing: practitioners are reminded not to invite, and courts not to grant, adoption orders immediately after a refusal of leave—particularly where a parent is likely to seek permission to appeal.

4. Complex Concepts Simplified

Placement order
An order under the Adoption and Children Act 2002 authorising a local authority to place a child for adoption. Once made, it marks the court’s approval of adoption as the plan (subject to later adoption proceedings).
Leave to oppose (s.47 ACA 2002)
Where a child is placed for adoption under a placement order, a parent cannot oppose the adoption application unless the court first gives permission (“leave”). This is a gatekeeping mechanism.
The two-stage test
  1. Stage 1 (threshold): Has there been a change of circumstances since the placement order?
  2. Stage 2 (discretion/welfare): If yes, should leave be granted, considering all circumstances with the child’s lifelong welfare as paramount—essentially, should the court revisit the adoption plan?
“Change of circumstances” is not “significant change”
The statute does not require the change to be “significant” or “exceptional”. The change must be real, relevant, and sufficient to “open the door” to the welfare-based discretion at stage 2.
Procedural irregularity vs substantive injustice
A procedural mistake (like making an adoption order on the wrong day) does not automatically overturn the outcome. The appeal court asks whether the decision was wrong, or whether the process made it unjust (CPR 52.21(3)).

5. Conclusion

R (A Child: Leave to Oppose Adoption) [2026] EWCA Civ 673 preserves the orthodox s.47 structure while sharpening practice in three ways: (1) courts must articulate the statutory test without importing a “significant” gloss; (2) where appropriate, courts should give an alternative stage 2 welfare conclusion when refusing at stage 1; and (3) adoption orders should not be made on the same occasion as refusing leave to oppose, with the Practice Guidance (Adoption: Final Hearings) [2018] 1 WLR 2232 treated as mandatory in all normal circumstances. The case also illustrates that even serious procedural errors will not necessarily undo an adoption order where no substantive injustice has occurred and the refusal of leave was correct on the merits.