J (Children), Re [2026] EWCA Civ 989

[2026] EWCA Civ 989Case No CA 2026 000739
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM THE FAMILY COURT AT CARDIFF
Recorder Max Davies
CF24C50309
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/07/2026
Before
LADY JUSTICE KINGLORD JUSTICE NUGEELADY JUSTICE ELISABETH LAING
In the matter of:
J (children)
Hearing Hearing date: 16 June 2026
Lisa Edmunds and Lara Webber (instructed by JMW Solicitors) for the Appellant
James Lewis (instructed by Monmouthshire County Council) for the First Respondent
The Second Respondent did not appear and was not represented
Rhys Evans (instructed by NDP Legal) for the Third and Fourth Respondent
Approved JudgmentThis judgment was handed down remotely at 11.00am on 29 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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[1]This is an appeal by the mother of twin girls MJ and GJ, now aged two, against an order made by Recorder Davies (‘the Recorder’) on 19 March 2026. The Recorder refused to grant the mother leave pursuant to section 24(2) Adoption and Children Act 2002 (‘s.24(2) ACA’) to apply to revoke placement orders made by him in respect of MJ and GJ (‘the twin girls’).

Background

[2]The mother has five children: B (a girl, aged 11), L and K (twin boys, aged four), and the twin girls. The identity of the twin girls’ father was unknown until after the placement orders were made. Paternity was confirmed by DNA testing in November 2025 at which time the father was added to the proceedings. The father does not hold parental responsibility for the twin girls and has not had contact with them. He has chosen not to engage with either the local authority or the Children’s Guardian during these proceedings but has funded the mother’s legal costs for this application. He has indicated that in the event that the children were to live with the mother, he would wish to have contact.[3]The mother has been known to the local authority since she was herself a child. She was 18 years old when B was born. There were considerable concerns about the mother’s ability to care for B and there had been 28 social care referrals in respect of her by the time she was 10 years old. B was placed on the Child Protection Register twice and on Care and Support plans on a number of occasions. A number of the referrals related to the mother smoking cannabis but there were also significant issues relating to domestic abuse, her home conditions and the mother’s general parenting capacity.[4]After the twin boys were born on 19 May 2022, referrals were made to social care by the police regarding domestic abuse, but matters came to a head on 5 September 2023, when a referral was received from B’s school after B complained that she had been hit by her mother and that her mother had thrown a shoe at her. Further investigation revealed bruises to the heads of each of the twin boys and it became apparent that B’s hygiene had been neglected to such an extent that six of her teeth had had to be taken out.[5]On 8 May 2024, the boy twins’ father went to the police to report that the mother had sent him a message in which she said she would kill the children or seriously harm them. The police referred the matter to the local authority. The situation became even more serious after the birth of the twin girls the following month in June 2024. The Recorder noted in his care and placement order judgment of 3 March 2025 that their birth ‘presented her with an immense challenge’.[6]On 8 July 2024, following information being given to them that K had fingertip bruising to his left underarm, the local authority introduced round the clock supervision of the mother. Similar fingertip type bruises appeared on L’s arm only a few days later on 15 July 2024. A medical report concluded that the bruises to K were due to grabbing and were likely to be non-accidental.[7]The local authority applied for care orders on 19 July 2024.[8]On 14 August 2024, the mother entered the Orchard House assessment centre with the twin boys and the twin girls for a 12-week parenting assessment (‘the Orchard House assessment’). The boys were 2 years old and the twin girls just eight weeks.[9]The assessment was not a success. In the 12 weeks she was at Orchard House, the staff were unable to move away from 24-hour physical supervision of the mother with the children. Very occasionally the mother was observed by CCTV as opposed to there being someone physically present. This CCTV observation resulted in twenty video recordings which were subsequently produced in evidence in the care proceedings. The videos showed, with disturbing clarity, a lack of love, attention or empathy for the children and the significant rough handling by the mother of these very young children and babies.[10]A negative assessment was filed in the care proceedings by Orchard House on 6 November 2024. On 8 November 2024, the twin girls were placed with the current foster carers where they have remained and who have now been approved as prospective adopters. The foster carers propose an adoption order which would allow for some continuing face-to-face contact with the mother. Contact currently takes place once a month. The mother has nothing but praise for the care given to the twin girls by the foster carers and, until recently, told both the social worker and the Children’s Guardian that in the event that the twin girls did not return to her care, she would like the foster carers to adopt the children by way of a so-called open adoption.[11]Applications for placement orders in respect of the twin girls were made on 13 January 2025. At the time of the final hearing, the foster carers had not put themselves forward as prospective adopters. The care plan therefore was for a ‘stranger’ adoption. The final care plan did not provide for direct contact with the twin girls due to the mother’s ‘lack of insight…difficulties with following advice and the risk that the placement could breakdown as a result of [the mother] not agreeing with the care plan’. The plan therefore provided for her to have indirect contact twice a year by way of letters and photographs.

Care and Placement Judgment:

[12]As a change in circumstances under s.24(2) ACA is determined as from the date of the making of a placement order, it is important that a judge hearing an application for leave to revoke the order has adequate information about the events which led to the making of the placement order. There should if possible, be a transcript or, failing that, an agreed note of the judgment from the care proceedings. At the very least, the threshold criteria and as much information/evidence as can be produced should be before the judge in order to inform his or her evaluation. The Recorder in this case had the advantage of having heard the care proceedings (‘the final hearing’) and had given the judgment which led to the making of the placement orders.[13]At the final hearing, the mother agreed to family placements for the other children. The remaining issue was therefore whether the twin girls should be placed for adoption, as proposed by the local authority and guardian, or whether, as the mother wished, there should be an extension of time of the care proceedings before a final decision was made to enable the mother to continue with the work she was undertaking. Such a delay would, it was said on her behalf, allow her time to demonstrate that the changes she had made were sufficient to allow for the return of the twin girls to her care.[14]The mother accepted the allegations in the threshold document. The document identified the following areas of concern: physical and emotional abuse, lack of supervision, poor management of the children, poor home conditions, unhealthy relationships, substance misuse, vulnerable mental health, unwillingness to engage with professionals and a lack of support network.[15]The Recorder described the Orchard House assessment as having been ‘a gold standard assessment’. Whilst the Recorder recognised the near impossibility of ‘exhibiting perfect parenting’ whilst caring for four children under three in a pressurising environment, he accepted the report’s conclusion that the mother was not capable of looking after the children. Importantly, he specifically considered, and was satisfied, that the mother had been properly assessed as to her ability to care for the twin girls alone.[16]He described the following paragraph of the report as the ‘nutshell’ of its conclusions: “The demands of parenting four children under three are considerable and it is with great sadness that we conclude that even with support, [the mother] does not have the parenting capacity or resources to do this safely during the Orchard House assessment. [The mother] has received intensive specialist support and intervention in order to address the concerns about her care that [the four children] have received. It is clear that despite [the mother’s] love for all her children, she does not have the capacity to make sufficient changes for them. One of the key barriers to this has been [the mother’s] motivation and capacity to change. She has demonstrated little insight into the worries that led to the Orchard House assessment.” (my emphasis)[17]The Recorder further noted Orchard House’s concerns that the children would be hurt due to rough and insensitive handling and that the risk of physical harm was high.[18]The Recorder was provided with the twenty CCTV videos from Orchard House which showed the mother ‘failing to show really any love or affection’ and ‘rough handling’ of the children. One disturbing video showed the twin boys, on two separate occasions, falling from a bed and a low table respectively as a result of being tugged roughly by the wrist by the mother. The CCTV also showed the mother constantly looking at her phone whilst the boys sought her attention, which the Recorder found to be evidence of her prioritising her needs over the children’s. On one occasion whilst resident at Orchard House, one of the baby girl twins was not fed for 13 hours. All this happened despite the fact that the concerns about the mother were such that, for the majority of the time, she was supervised 24 hours a day and only occasionally was the supervision only via CCTV.[19]The conclusion of Orchard House was that the children had continued to suffer significant harm despite the 24/7 oversight and that the staff had often had to step in to ensure that the children were safe and that their needs were met. One of the key concerns, which has in turn been the focus of the present application, has been the mother’s ability to regulate her emotions and the impact that her dysregulation and frustration has, or would have, on her children.[20]At the care and placement hearing, the Recorder recognised that the mother had stopped using cannabis and that in the four months since she left Orchard House, she had addressed the poor home conditions, had not engaged in further relationships and had commenced or intended to commence, domestic abuse and parenting courses. In addition, the mother had sought medical assistance, engaged with professionals, and was committed to her contact with the children and had considered who could form part of her support network.

The Recorder gave the mother credit for the progress she had made but concluded that:

“59. The lack of love, affection and care shown by her in the video footage to the twins is a deficit in her parenting that she will, on the balance of probabilities, not be able to remedy in anything like the timescales of the twin girls, now nine months old as they are.”
[22]The Recorder noted that the twin girls had made excellent progress with foster carers who had ‘fallen in love’ with them. In his view, the welfare of the twin girls demanded that they have ‘a safe and secure placement that will allow their physical and emotional needs to be met as very (sic) soon as possible in a permanent manner and for the entirety of their minority and the remainder of their lives.’ The Recorder accordingly made the placement order.[23]There was no appeal against the Recorder’s order which had been made against the backdrop and recognition of the progress made by the mother in the months leading up to the making of the orders. On the facts of the case, the judge was fully entitled to make a care order with a plan for adoption outside the family. Applications for leave to revoke placement orders: the legal framework[24]The legal framework is very well established and it is not necessary to refer in detail to the considerable bank of authority on the subject. For the purposes of this judgment, the law can be summarised as follows:
“Section 24 (2) Adoption and Children Act 2002 provides: (1) The court may revoke a placement order on the application of any person. (2) But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless— (a) the court has given leave to apply, and (b) the child is not placed for adoption by the authority. (3) The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made.” (1) The court may revoke a placement order on the application of any person. (2) But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless— (a) the court has given leave to apply, and (b) the child is not placed for adoption by the authority. (3) The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made.”
[25]The court must therefore consider(i) has there been a change in circumstances and, if so,(ii) should leave to apply to revoke the placement order be granted.[26]The principles to be applied were summarised by Baker LJ in Re D (Leave to apply to revoke Placement Orders) [2022] EWCA Civ 299, [2022] 3 FCR 669 at [4] (‘Re D’):
“(1) There is a two-stage process. Has there been a change in circumstances? If so, should leave to apply be given? (2) The change in circumstances does not have to be ‘significant’ but needs to be of a nature and degree sufficient to open the door to a consideration of whether leave to apply should be given. That principle, identified by this Court in Re P (Adoption: LeaveProvisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069 in relation to an application under s.47 of the 2002 Act for leave to oppose an adoption order, has been held to apply also in relation to applications under s.24: Re B-S [2013] EWCA Civ 1146, [2014] 1 FLR 1035. (my emphasis). (3) At the second stage, the child’s welfare is relevant but not paramount: M v Warwickshire County Council [2007] EWCA Civ 1084, [2008] 1 FLR 1093. (4) The question for the court at the second stage is … “whether in all the circumstances, including the mother’s prospect of success in securing revocation of the placement order and [the child’s] interests, leave should be given”: NS-H v. Kingston uponHull City Council and MC [2008] EWCA Civ 493, [2008] 2 FLR 918. (5) If leave is granted, the substantive application to revoke the placement order must be determined by applying s.1 of the 2002 Act. The child’s welfare is the paramount consideration, any delay in coming to a decision is likely to prejudice the child’s welfare, and the court must have regard to the factors in the checklist in s.1(4). Furthermore, as this Court stated in Re C(Revocation of Placement Order) [2020] EWCA Civ 1598, on a substantive application to revoke a placement order, the court must abide by the principles established in the case law on adoption generally, in particular the decision of the Supreme Court in Re B [2013] UKSC 33, so that the permanent severing of ties between a child and her birth parents is an outcome “only to be ordered in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare” (per Baroness Hale of Richmond at [198]).”

The mother’s application for leave to revoke the placement orders

[27]On 5 September 2025, six months after the making of the placement orders, the mother applied under s24(2) ACA for leave to apply to revoke the orders. On 13 February 2025, at a hearing at which that application had been listed to be determined, the unusual course was taken, by consent, to adjourn the hearing so as to allow further evidence to be obtained and for the application to be relisted in order for oral evidence to be heard. The Recital to the order records the reason that oral evidence was needed from the mother as being that ‘one of the key issues in the case (albeit not the only issue of concern) is the nature and extent of the Applicant Mother’s insight’.[28]I would emphasise that the Recorder’s decision to hear oral evidence in this case should not be seen as a routine alternative to the usual approach to applications for leave as articulated in Re P (A child) (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 1 WLR 2556. In that case, the court was concerned with an application under s.47(5) ACA for leave to oppose the making of an adoption order. For these purposes, the same procedural principles apply to applications under s.24(2) ACA for leave to apply to revoke a placement order. Wall LJ took the view that the experienced judge in that case was fully entitled ‘to conclude’ that ‘such a hearing can be fairly conducted on submissions’. Wall LJ made this point of ‘general application’:
“53…..The object of the 2002 Act was to simplify the adoption process and to reduce delays in children being placed for adoption and adopted. The instant case had already gone through two substantive hearings, albeit that oral evidence was not called at the placement order hearing. We thus view with great concern the argument that an application for leave under section 47(5) requires a full welfare enquiry, with oral evidence and cross-examination.”
[29]Applications for leave are not ordinarily concerned with disputed factual issues and oral evidence will not usually be required. That is particularly the case where the Recorder or Judge hearing the application has a detailed knowledge of the case, whether by way of having heard the earlier proceedings or as a result of the provision of sufficient evidence in the form of earlier judgments and, where appropriate, reports and statements filed for the leave application. It follows that there will generally be no need for oral evidence unless there is some good reason to do so.[30]In my judgment the key issue for the leave application, as was recognised by the Recorder, was not in relation to the mother’s continued progress in respect of those matters upon which she had already embarked at the time the placement order was made, or as to her commitment to undertaking further therapy and her engagement with MIND and Barnardo’s. All these were recognised by the Recorder to be greatly to her credit. The question for the Recorder was whether the nature of the change in circumstances was sufficient. In other words, had the mother made sufficient progress and developed enough insight into the physical and emotional damage her unregulated behaviour caused to her children and, in particular, had she developed insight and understanding as to what provokes or ‘triggers’ such behaviour on her part? That evaluation by the Recorder was necessarily to be made against the backdrop not only of the assessment of the mother’s care of the children in Orchard House, but also the long history of welfare concerns in relation to B and the fact that even before the twin girls had been born, constant supervision had been necessary in order to try to keep B and the boy twins safe.[31]It was the mother’s case before the Recorder that she had evidenced a change in circumstances such that s.24(3) ACA was satisfied. She referred to her abstinence from cannabis since June 2024. In addition, she had completed parenting and domestic abuse courses, improved her home conditions and created a room for the twins. She had also started part time delivery work with Evri and engaged in counselling. The twin girls’ father, she said, had been identified and he and his family formed part of her support network. The mother had also shown herself to be consistent, warm and child-focused in supervised contact with the twin girls. Further, she said that the change in care plan from the twin girls being placed with strangers to one where they were to be adopted by the foster carers was in itself a change in circumstances justifying the granting of leave.[32]The local authority and guardian, whilst acknowledging the progress the mother had made, remained concerned about her lack of insight and considered that there was a risk of ‘disguised compliance’, with the mother ‘saying what she thinks professionals want to hear without demonstrating sustained internal change’. They highlighted continued safeguarding risks and concerns around emotional regulation and stress tolerance, which were a core feature of the care proceedings and Orchard House assessment.[33]The Recorder had evidence in respect of the key issue of the mother’s insight in three different evidential forms namely;(i) face-to-face interviews with the social worker and the Children’s Guardian,(ii) her written statements and(iii) her oral evidence.[34]The mother was seen by the social worker on 24 October 2025 and the Children’s Guardian on 5 November 2025. To both the social worker and the Guardian, the mother sought to minimise the concerns about her previous care of her children. The mother said that the social worker involved had not liked her and had a ‘thing’ against her and that had she not taken back her partner, the children would not have been removed. She blamed the boy twins’ father for telling the police about her text threatening to kill the children saying he had done it out of spite. With reference to throwing the shoe at B she said it was ‘towards her’ not ‘at her’ and that B was ‘like her at that age’ and ‘likes attention’.[35]The Guardian saw the mother again on 5 February 2026. This time far from seeking to justify what had happened, she said that she could now see that she had been making excuses. This new recognition and acceptance of her poor parenting in the past dovetailed entirely with what she now also said in her written statement filed the next day, 6 February 2026, for what was intended to be the determinative hearing listed on 13 February 2026.[36]In this statement of 6 February 2026 and a further statement filed on 5 March 2026 following the adjourned hearing, the mother, in contrast to what she had said to the social worker and in her first interview with the Guardian, said that she did not want to make excuses about Orchard House and that she had difficulties regarding her emotions. She accepted her behaviour had a deep impact on the children. Even in the statements, however, there seemed to be a lack of true understanding of what her children had been through. In relation to the nature of the harm she had caused the children, she said, for example, that it was:
‘blaming the wrong child’ for taking a toy and picking up her daughter ‘too fast’
. The mother said that the children did not have ‘the best version’ of her.[37]In her statement of 5 March 2026, the mother said that she understood that she had failed the children and that she lived with the consequence every day. For the first time in this statement the mother, having been told that the foster carers would like to adopt the twin girls, asked that a Special Guardianship Order be considered if the children could not be rehabilitated to her.[38]In her oral evidence the mother said that watching the videos had been a massive ‘wakeup call’. The mother said that she had been a good mother before she went into Orchard House and that her treatment of the children at Orchard House was because of the challenges being there had presented to her and being out ‘of her routine’.[39]So far as the physical injuries to the children were concerned, she said she couldn’t say if the bruising had been caused by her, or her mum, or by B playing with the children and that she had only admitted that it had been her ‘because her barrister told her to’. She again said, as she has done to the social worker, that B had said that she had thrown the shoe ‘at her’ rather than ‘in front of her’ to get attention. She accepted, however, that the bruising on K and the text message had justified local authority intervention.[40]The mother said that whilst she had benefitted greatly from all her therapy and the support from MIND and Barnardo’s, she still did not know what triggers her frustration and her subsequent behaviour when she is frustrated.

The Judgment

[41]In his judgment, the Recorder said that much of what the mother had done in the last 12 months she had done or had already begun when he had made the placement orders in March 2025. The judge recognised that the Orchard House assessment was a very difficult time for the mother and that he had great sympathy for her in that context, but that the report had assessed her ability to care for the twin girls alone and had concluded negatively in what was not a ‘finely balanced report’.

The Recorder concluded that:

“There is not, in my judgment, real evidence before me of sufficient change to support a conclusion that were the twin girls to be returned to the Mother now that she, and so they, would not suffer the same parenting deficits that were identified by the Orchard House assessment.”
[43]So far as the plan for the foster carers to adopt the twin girls was concerned

the judge said:

“As for the change in respect to the children’s placement, it is not akin to a kinship carer being identified which has been held to be sufficient change of circumstances in the authorities, in my judgment.”
[44]The Recorder was not persuaded that the changes were of a ‘nature and degree’ sufficient to reopen the making of a placement order in respect of the twin girls. He nevertheless, as is often the case in applications where the judge has found there to have been an insufficient change in circumstances, considered the second evaluative stage of the analysis in case he was wrong in his evaluation of the mother’s change in circumstances, He considered whether leave should be given in all the circumstances, including the mother's prospect of success in securing revocation of the placement order and (whilst not paramount) the twin girls’ welfare interests.[45]The Recorder noted the fact that the proposed open adoption of the twin girls provided them with a ‘wonderful opportunity’ to achieve permanence with the people with whom they have their principal attachment. This, he said, diminished the mother’s chance of revoking the placement order. The twin girls required permanence and the mother was clear that her intention would be to seek the return to her of the children which would create uncertainty. Finally, the judge concluded that he could not have a high degree of confidence in a plan for rehabilitation if an application for revocation was made.[46]So far as the possibility which had been raised for the making of a Special Guardianship Order as an alternative to adoption was concerned, the Recorder was not satisfied that such an order would meet the twin girls’ need for permanence which was ‘of the utmost importance for their welfare throughout their lives’. The Recorder further noted that there was no evidence as to the foster carers’ view as to the making of such an order, the idea only having been floated in a position statement a matter of days before the hearing.

The Recorder therefore refused the mother permission to apply to revoke the placement order.

The Grounds of Appeal

[48]The three Grounds of Appeal are in narrative form but can be summarised as they were argued before this Court. I have reversed the order of Grounds 2 and 3 as it seems sensible to deal with the grounds relating to the first stage of the test together. 1. The Recorder set the bar too high in considering the mother’s change in circumstances and in doing so failed to apply the correct legal test. 3. The Recorder was wrong in failing to regard the approval of the foster carers as adoptive parents to be a change in circumstances and failed to evaluate the prospects of success of the mother persuading a court to revoke the placement orders on the basis of a less intrusive order, namely a Special Guardianship Order, as now being more appropriate. 2. The Recorder was wrong to find that stage two of the test would not be capable of being met.[49]The appeal against the Recorder’s finding that there had not been a sufficient change of circumstances in order for the court to move onto the second stage of the test is a direct challenge to the evaluative decision made on the facts by the Recorder. In Prescott v Potamianos [2019] EWCA Civ 932 at [76] in a judgment of the Court the proper approach was identified as follows:
“… on a challenge to an evaluative decision of a first instance judge , the appeal court does not carry out a balancing task afresh but must ask whether the decision of the Recorder was wrong by reason of some identifiable flaw in the Recorder’s treatment of the question to be decided, ‘such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion’.”
[50]As Lord Sumption said in Barton v Wright Hassall LLP [2018] UKSC 12, [2018] 1 WLR 1119, this is an appeal:
“15…..against a discretionary order, based on an evaluative judgment of the relevant facts. In the ordinary course, this court would not disturb such an order unless the court making it had erred in principle or reached a conclusion that was plainly wrong.”
[51]I have had in mind nevertheless that the change in circumstances does not have to be significant and that it is said on behalf of the mother that the Recorder set the bar too high. The changes do however have to be of the nature and degree sufficient to open the door to a consideration of whether leave to apply should be given.

Ground 1: the mother’s change in circumstances

[52]Ms Edmunds on behalf of the mother submitted that the Recorder had failed properly to assess and attach weight to the scale of change made and sustained by the mother. The Recorder, she submitted, had given insufficient weight to the mother’s two years of sobriety and the knock-on effect that had had on other aspects of her life.[53]So far as her emotional regulation was concerned, the mother’s evidence, Ms Edmunds said, had shown that she had made the ‘internal changes required to show she accepted responsibility for her past parenting deficiencies’. The Recorder failed to analyse or refer to her evidence in which she said that the Local Authority had been right to apply for care orders. Ultimately, she said that the Recorder had set the bar too high by looking to see if he could find sufficient evidence that the mother would not suffer the same deficits in the future.[54]Mr Rhys Evans on behalf of the Guardian submitted that the Judge was correct to determine that the changes the mother had demonstrated were not of a nature and degree to reopen consideration of the placement orders. A key consideration, she submitted, is the mother’s inability to identify what triggers her emotional dysregulation. In addition, the mother has shown a lack of insight. For instance, she failed to recognise the impact of her throwing a shoe at B, which the mother still regarded as attention seeking. The prevailing issues were not cannabis misuse or home conditions, which had already improved by the time of the final hearing, but rather the mother’s parenting and her responses to the children.[55]Mr Lewis on behalf of the Local Authority submitted that the mother’s oral evidence was revealing and that it was clear from that that she did not recognise or accept that her parenting before her admission to Orchard House had been neglectful. It was equally clear that she had not yet identified her emotional triggers. The Local Authority emphasised that the decision was not predicated on the degree of change but rather on its nature.

Discussion: Ground 1

[56]The Recorder rightly gave the mother credit for the progress she has made in a number of areas including her long abstinence from smoking cannabis. Her evidence, however, showed a mixed picture. On the one hand there were moments in her oral evidence when she was able to recognise that her care of the children was physically and emotionally abusive and that her care of the twin boys and the twin girls in Orchard House fell far below a ‘good enough’ and safe standard of parenting. One can only feel compassion for the mother, who loves her children dearly, as she accepted in oral evidence that the videos were a ‘hard watch’.[57]These flashes of insight, however, present only part of the picture and were not always reflected in conversations with the social worker and Guardian outside of the court environment. The placement order was not made purely on the strength of the Orchard House assessment. There were long-standing and serious concerns about the mother’s care of her children before she went to Orchard House. It may be that that harmful care was in part a consequence of her cannabis habit and to her great credit, she is now abstinent and has been since well before the making of the placement order. It was, however, recorded in the recital to the February 2026 order that the court was particularly concerned about the mother’s insight. It was for that reason that she gave oral evidence. Unhappily, notwithstanding all the laudable work she is undertaking, the mother still said in oral evidence that she was a good mother before Orchard House and that the problem in Orchard House was that she was out of her routine. Further, there was simply no understanding of the impact on B of her mother’s long-standing neglect and aggression towards her. B’s distress at having the shoe thrown at her was, even now in her oral evidence, put down by her to attention seeking.[58]Ms Edmunds rightly observes that the judge did not analyse in detail the mother’s evidence and I fully accept that a counsel of perfection might well have seen a more in-depth analysis. The judge, however, did set out between [27]-[29] the work undertaken by the mother and was entitled to regard the changes as amounting only to progress in respect of changes which were already in train at the time of the making of the placement order, as opposed to changes made since the making of the placement order.[59]The Recorder had the benefit of a significant volume of updating material and, having heard oral evidence from the mother as summarised above, was entitled to conclude that the changes were not of a ‘a nature and degree sufficient to open the door to a consideration of whether leave to apply should be given. The key issue was whether the mother could now show sufficient insight and the ability to regulate her emotions and unpredictable behaviour and to recognise not only the impact it has upon her decision making, but also the physical and emotional harm it had caused to her children.[60]The totality of the evidence showed, at best, a patchy level of insight and, on her own account, she was still working with her therapists to try and understand what triggers her ‘everything. My anxiety, me not being able to speak to people, what triggers my frustrations, what triggers any, any sort of emotion that I’m going through.’ The local authority rightly submit that the changes made by the mother do not go to the root of the risk of harm that she poses to the children which was in large part her inability to regulate her emotions which in turn led to her causing physical and emotional harm to her children.[61]In my judgment the Recorder did not fall into the trap of setting the bar too high. The decision he had to make in this particular case was not predicated upon whether the change in circumstances was sufficient but whether the change in circumstances was of a nature sufficient to open the gateway to the exercise of the judicial discretion to grant leave to make an application to revoke the placement order. In my judgment there was ample evidence for the Recorder to conclude that the nature of the mother’s changes was not sufficient to open the gateway to the second stage.

Ground 3: The change in circumstances for the twin girls:

[62]It is submitted on behalf of the mother that the judge was wrong in failing to regard the fact that the foster carers have now been approved as adopters as in itself a sufficient change in circumstances. Not only, it is submitted, is it a sufficient change, but it should lead to permission being granted under the second stage of the test as such a change should lead to a fresh Re B-S (Children)(Adoption: Leave to Oppose) [2013] EWCA Civ 1146,[2014] 1WLR 563 (‘Re B-S’) analysis in order to consider whether a less intrusive order in the form of a Special Guardianship Order should be made rather than an adoption order.[63]In my judgment, whilst Ms Edmunds’ argument is superficially attractive, it is based on a faulty analysis. At the final hearing, the care plan was for adoption. All the parties, including the mother (in the event that her application to extend the proceedings failed), accepted at that time that the twin girls’ welfare demanded a permanent placement in the form of adoption and therefore of the permanent severing of ties with the mother. The key lies in the word ‘permanent’. Further, a fresh Re B-S analysis would only be embarked upon if leave to make the application to revoke the placement order was granted.[64]That remains the care plan. Ms Edmunds is in error when she refers to a ‘change in the care plan’. With respect to her, the care plan approved by the court and not subject to appeal was for adoption outside the family and it remains as adoption outside the family. The court has no jurisdiction to identify the adopters or to direct the Local Authority as to who they should approve as adopters once a placement order is made.[65]Section 21(1) ACA 2002 provides that:
“a placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters chosen by the local authority.”
[66]The court is therefore left with very limited powers to vary or revoke a placement order (s.24 ACA) or to make an order for contact which comes to an end when the adoption order is made (s.26 ACA).[67]In so far as it can be said that here has been a change in the care plan, it relates only to the potential for continuing face-to-face contact with the mother following the making of an adoption order. Such a change cannot on any basis be regarded as a ‘sufficient change in circumstances’, given that issues as to contact are more than adequately provided for either pursuant to s.26 ACA during the currency of the placement order, or, when making the adoption order or any time thereafter, under s.51 ACA.

Ground 2: The Second stage of the test:

[68]It follows therefore that Ground 1 and 3 are dismissed. In those circumstances there is no need for the Court to consider whether the judge was wrong in his approach to the Stage 2 analysis. I will however deal with it briefly given the mother’s submission that, had Stage 1 been satisfied, the fact that the foster carers now sought to adopt the twin girls meant that the Recorder should have exercised his discretion to grant leave to allow a fresh analysis as to whether a Special Guardianship Order was now the appropriate order for the court to make.[69]The test is whether the mother would succeed in the placement order being set aside not whether she would succeed in having the twin girls rehabilitated to her care. As part of its analysis, the court will take into account the prospects of an application to revoke the placement order succeeding: Re D at [4(4)]. That part of the evaluative process has necessarily to be set in the context of the court’s approach to applications to revoke where leave has been given. In particular, in Re H (Children: Placement Orders [2023] EWCA Civ 1245. [2024] 1 FLR 548 at [45] Peter Jackson LJ said that once a child has said ‘goodbye’ and has been prepared for adoption, the plan should only ‘be sensibly sacrificed’ in favour of a plan for rehabilitation if there is a ‘high degree of confidence’ in success. In Re N (Children: Revocation of Placement Orders) [2023] EWCA Civ 1352, [2024] 1 FCR 381 at [14] Peter Jackson LJ said that those remarks in Re H were ‘intended to underline the fact that a decision to discharge a placement order is as serious as a decision to make one in the first place’.[70]In the present case it is hard to see the chances of the mother succeeding in an application to revoke the placement order as other than remote. The children have lived with the foster carers since October 2024, when they were four months old. The foster carers have been approved as adopters. It follows that, if the placement order remains in place, the twin girls, now aged two, would, unlike most children in respect of whom a placement order is made, not have to move to a new permanent placement but rather would remain with the couple with whom they have their secure and primary attachment.[71]The Recorder decided in March 2025 that the twin girls needed a permanent home. As matters stand they have it. The mother is completely honest and clear in saying that, whilst she is grateful to the foster carers who have been ‘brilliant’, her firm intention would eventually be to have the twin girls rehabilitated to her care.[72]Special Guardianship Orders are made and discharged under the provisions of s14A – 14F Children Act 1989. Whilst pursuant to s14C(1)(b), the special guardian is entitled to exercise parental responsibility to the exclusion of the mother, unlike adoption, the mother does not lose her parental responsibility. Further, under s14D(1)(b) the mother, as a parent, is entitled to apply for the Special Guardianship Order to be discharged, although by s14D(3)(b) leave is required.[73]The possibility of a Special Guardianship Order being made is, in any event, speculative at best, having been ‘floated’ by those representing the mother at a late stage. The foster carers have not been asked about it or been given an opportunity to express a view and the Local Authority’s care plan supported by the Guardian remains adoption.[74]If the placement order were to be discharged and replaced with a Special Guardianship Order, the permanency of placement that the Recorder regarded as being in the twin girls’ best interests when he made the placement order would be disrupted. Such an order would leave them exposed to the possibility of further applications aimed at rehabilitation. It is for these reasons that Peter Jackson LJ rightly underlined that a decision to discharge a placement order is as serious as a decision to make one in the first place.[75]The welfare of the twin girls is not the paramount consideration at Stage 2, but that should not prevent the courts, as Peter Jackson LJ identified in Re H in the context of a s47ACA application, from focusing on the actual needs of the children and the potential harmful consequences of abandoning the plan for adoption.

Conclusion

[76]In all the circumstances I would therefore dismiss the appeal on each of the Grounds of Appeal.

Nugee LJ

[77]I agree.

Elisabeth Laing LJ

[78]I also agree.