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1.5.1 Emergency Protection Orders


Contents

  1. Introduction
  2. Application Procedure
  3. Directions of the Court
  4. Effects of Making the Order
  5. Exclusion Order
  6. Exclusion Requirement attached to Emergency Protection Orders
  7. Undertakings Relating to Emergency Protection Orders
  8. Grounds for Making the Order
  9. Duration of the Emergency Protection Order
  10. Progress of the Order
  11. Discharge Applications
  12. Notifications under Section 47(1)
  13. X Council v B Guidance


1. Introduction

The purpose of an Emergency Protection Order is to enable a child or young person in a genuine emergency to be removed from where he/she is or to be kept where he/she is to ensure the immediate short-term protection. The Order is designed to be used only in an emergency and not as a precursor to any other legal orders under the Act. A Court considering an application for an Emergency Protection Order does not have available to it a range of Orders normally available to it in Family Proceedings. It can therefore only make the Order or not make the Order.

An application for an EPO is a very serious step, and  the court must be satisfied that the EPO is both necessary and proportionate and that there is no less radical form of order available. 

Emergency Protection Orders may be made even where other Orders are in force and in particular where a child may already be in care. In this case any Care Order continues to have effect but subject to the Emergency Protection Order.

Emergency Protection Orders can now have Exclusion Orders attached to them following the implementation of the Family Law Act 1996. The attachment of an Exclusion Order would enable any suspected abuser to be removed from the home, kept away from the home or an area around it, rather than to have the child removed. A power of arrest can be attached to the exclusion requirement.

Social workers and team managers must note that any applications for Emergency Protection Orders may be scrutinised under the Human Rights Act 1998.

The Court may make an Emergency Protection Order under Section 44 of the Children Act 1989 if it is satisfied that there is reasonable cause to believe that a child is likely to suffer Significant Harm if:

  • He/she is not removed to accommodation;
  • He does not remain in the place in which he/she is then being accommodated;
  • An Emergency Protection Order may also be made if enquiries under Section 47 are being frustrated by access to the child being unreasonably refused to a person authorised to seek access, and the applicant has reasonable cause to believe that access is needed as a matter of urgency; or
  • An Emergency Protection Order gives authority to remove the child under the protection of the applicant for a maximum of eight days (with one possible extension of up to seven days).


2. Application Procedure

Generally speaking the Local Authority should make the application for the Emergency Protection Order although there is provision for other authorised persons to also apply.

This may be an authorised police officer or member of the NSPCC. Applications by these persons in Newcastle would be in very rare circumstances and it is preferable that the Local Authority does them. If under exceptional circumstances an application is made by the NSPCC or the police the Court is required to notify the Local Authority after which they must commence procedures under Section 47.

The intention behind these provisions is to ensure that in an emergency any individual can seek immediate and emergency protection.

An application to the Court for an Emergency Protection Order should only be done after appropriate consultation with the relevant Team Manager and Legal Services, who must be satisfied that one of the grounds for the making of the Order exists. Once this decision is made it must be ratified by the relevant Service Manager,Children’s Social Care.

Following this discussion, the social worker should provide as far as possible a detailed written report to accompany the application. The legal advisor will then complete the necessary application forms and present them with the social work report to the Court.

If a warrant is also to be applied for, the social worker must consult with the relevant section of the Police to ensure that they are alerted.

A decision may be made at this point as to who else will accompany the social worker to the home; if the Order is made, for example if the social worker does not know the child, it may be appropriate for a health visitor to accompany him/her.

The application should be held inter parties other than in very exceptional circumstances. There are three main reasons for this:

  • Good practice dictates that the social worker has had some opportunity to discuss the proposed action with the family;
  • All ex parte applications are more likely to be subject to discharge applications;
  • The provisions of the recently implemented Human Rights Act 1996 may leave the authority open to future challenge in these circumstances.

The court will only consider applications without notice in high risk cases where the child’s safety would be endangered if the parents knew of the application, or for other reasons it is not possible to notify them.  Parents/those with Parental Responsibility/any person with whom the child was living immediately before the making of the EPO, may apply to the court for the discharge of an EPO made ex parte.

Legal advisors are generally responsible for the serving of papers and to ensure that notice to all parties is given, although a social worker may be asked to deliver papers personally if appropriate.

Where those holding the child do not readily agree to hand the child over, the EPO provides a formal direction to any person who is in a position to do so to comply with any request to produce the child.

In a circumstance where the Local Authority does not know exactly where a child is, the Court may order any person who may know the child's whereabouts to provide information to the applicant.

The court can also attach a power to enter and search specified premises for a child who is the subject of an EPO. 

If the local authority is, or is likely to be, obstructed from exercising their powers under the EPO, the court can issue a warrant authorising any police officer to assist in entering and searching the premises, using reasonable force if necessary. If, upon gaining entry, it is found that the child is not harmed and is not likely to suffer Significant Harm, the child should not be removed. 

If the Social Worker suspects there may be another child on the premises to whom an Emergency Protection Order may also apply, the Court may be requested to make a separate Order authorising a search for that child. In the event that a second child being found in circumstances which would justify an Emergency Protection Order, that separate Order may be regarded as an Emergency Protection Order.

If the social worker does not know the name of the child concerned, he/she must be described in as full a detail as possible.


3. Directions of the Court

The Court may give directions concerning contact with the child, medical or other examinations, or direct that they may not be carried out.

Parties in the proceedings may apply to vary directions at any time.

Subject to any directions the social worker must allow the child reasonable contact with his/her parents and others.

If the child is able, he/she may refuse to submit to an examination.

If there is a need for further investigation of the child’s health and development but s/he is not considered to be in immediate danger, then the local authority should apply for a Child Assessment Order.

The Court shall appoint a Guardian under Section 41 Children Act 1989 unless it is not felt to be in the child's best interests.


4. Effects of Making the Order

The Emergency Protection Order:

  • Directs a person to produce the child;
  • Authorises the removal of the child at any time to accommodation provided by or on behalf of the applicant, and their being kept there or the prevention of their removal from any hospital or other place in which he was being accommodated immediately before the making of any order; and
  • Gives the applicant limited Parental Responsibility for the child.

The applicant can only do what is necessary to promote the welfare of the child in exercising parental responsibility.

In practice where the applicant is either the NSPCC or the Local Authority, the social worker must accompany the police, as he/she will be responsible for the child when he/she is removed from the premises.

It is a criminal offence to intentionally obstruct an authorised person exercising his/her powers. If a social worker is obstructed he/she must return to Court to make an application for a warrant to authorise the police to enter and search the premises.

Social workers must carry formal identification with them at all times.

In extreme circumstances where there is a risk to life and limb, for example in hostage situations, the police may exercise their powers under the Police and Criminal Evidence Act 1984, to enter and search the premises without a warrant.


5. Exclusion Order

There are a number of powers available under the Family Law Act 1996 which may allow a perpetrator to be removed from the home as an alternative to removing the child. For the Court to include an Exclusion Requirement in an Order it must be satisfied that:

  • There is reasonable cause to believe that if the person is excluded from the home in which the child lives, the child will cease to suffer or cease to be likely to suffer, Significant Harm; and
  • Another person living in the home is able and willing to give the child the care it would be reasonable to give, and consents to the exclusion requirement.


6. Exclusion Requirement attached to Emergency Protection Orders

The Family Law Act gives the power to attach an Exclusion Requirement to an Emergency Protection Order.

The exclusion provision can be a requirement that:

  • The relevant person leave a dwelling house in which he is living with the child;
  • Prohibits the relevant person from entering a dwelling house in which the child lives; or
  • Excludes the relevant person from a defined area in which a dwelling house in which the child lives is situated.


7. Undertakings Relating to Emergency Protection Orders

The Court has the power to accept an undertaking from the relevant person in any case where it has the power to include an Exclusion Order. This undertaking will be a promise made in Court by the relevant person along the same terms as possible under the Exclusion Order.

No power of arrest can be attached to this undertaking.

The undertaking is enforceable as if it were an order of the Court (i.e. could ultimately lead to imprisonment for contempt of Court).

It will cease to have effect if the Local Authority then removes the child from the dwelling house for a continuous period of more than 24 hours.

Note: Undertakings are not used very often by Newcastle and if an Exclusion Requirement is necessary it will normally be part of an Emergency Protection Order.


8. Grounds for Making the Order

An Exclusion Requirement can only be included once the general grounds for making the Emergency Protection Order are met.


9. Duration of the Emergency Protection Order

The Emergency Protection Order shall have effect for up to 8 days. The period will be dictated by the Court. The Court may extend the period for a further 7 days if it believes that the child would suffer harm if the Order were not extended.

An Emergency Protection Order may only be extended once.

The Local Authority should have decided before this point whether an application under Section 38 Children Act 1989 for an Interim Care Order should be made.


10. Progress of the Order

The social worker must arrange a further Strategy Meeting within 48 hours of the Order being made. This meeting must include the investigating team and the legal advisor to the Local Authority.

This meeting must consider further plans for the child, possible further legal protection, initiation of a Statutory Assessment and any action to be taken in the event of a discharge application.

The person making the application is required to return the child to the care of the person from whom he/she was removed when it is safe to do so. If this is not practicable the child must be returned either to a parent or a person with Parental Responsibility. The Local Authority must decide with whom and where the child is to be placed.

Consultation with the relevant Service Manager should have already taken place to discuss further action and intervention.


11. Discharge Applications

  • Given that a discharge application can be made after 72 hours, there will possibly not be enough time to complete a detailed assessment. The Strategy Meeting needs to ensure that consideration is given to the possibility of an application being made.

No discharge applications can be heard before 72 hours.


12. Notifications under Section 47(1)

Where this Local Authority is informed that a child who lives or is found in our area:

Children’s Social Care must make or cause to be made such enquiries as we consider necessary to enable us to decide whether we should take any action to Safeguard or Promote the Welfare of the Child.

Where such a notification has been received the procedures relating to Section 47 Enquiries should be followed.


13. X Council v B Guidance

The 14 key points made by Mr. Justice Munby in the above case are:

  1. An EPO, summarily removing a child from his parents, is a draconian and extremely harsh measure requiring exceptional justification and extraordinary compelling reasons. Such an Order should not be made unless the Family Court is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child's safety: imminent danger must be actually established;
  2. Both the local authority which seeks and the court which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and the court approach every application for an EPO with an anxious awareness of the extreme gravity the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents;
  3. Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety;
  4. If the real purpose of the local authority's application is to enable it to have the child assessed, then consideration should be given to whether that objective cannot equally effectively, and more proportionately, be achieved by an application for, or by the making of, a Child Assessment Order under section 43 of the Children Act 1989;
  5. No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte (without notice) application, very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child's immediate safety;
  6. The evidence in support of the application for an EPO must be full, detailed and compelling. Un particularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning;
  7. Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying upon;
  8. Where the application for an EPO is made ex parte, the local authority must make out a compelling case for applying without first giving the parents notice. An ex parte application will normally be appropriate only if the case is genuinely one of emergency or other great urgency - and even then, it should normally be possible to give some kind of albeit informal notice to the parents - or if there are compelling reasons to believe that the child's welfare will be compromised if the parents are alerted in advance to what is going on;
  9. The evidential burden on the local authority is even heavier if the application is made ex parte. Those who seek relief ex parte are under a duty to make the fullest and most candid and frank disclosure of all the relevant circumstances known to them. This duty is not confined to the material facts; it extends to all relevant matters, whether of fact or law;
  10. Section 45(7)(b) of the Children Act 1989 permits the court to hear oral evidence. But it is important that those who are not present should nonetheless be able to know what oral evidence and other materials have been put before the court. The court must keep a note of the substance of the oral evidence and must record in writing not merely its reasons but also any findings of fact;
  11. The local authority should immediately on request inform the parents of exactly what has gone on in their absence. Parents against whom an EPO is made ex parte are entitled to be given, if they ask, proper information as to what happened at the hearing and to be told, if they ask: (i) exactly what documents, bundles or other evidential materials were lodged with the court either before or during the course of the hearing; and (ii) what legal authorities were cited to the court. The local authority's legal representatives should respond forthwith to any reasonable request from the parents or their legal representatives either for copies of the materials read by the court or for information about what took place at the hearing. It will, therefore, be prudent for those acting for the local authority in such a case to keep a proper note of the proceedings, lest they otherwise find themselves embarrassed by a proper request for information which they are unable to provide;
  12. Section 44(5)(b) of the Children Act 1989 provides that the local authority may exercise its Parental Responsibility only in such manner 'as is reasonably required to safeguard or promote the welfare of the child.' Section 44(5)(a) provides that the local authority shall exercise its power of removal under Section 44(4)(b)(i) 'only…in order to safeguard the welfare of the child.' The local authority must apply its mind very carefully to whether removal is essential in order to secure the child's immediate safety. The mere fact that the local authority has obtained an EPO is not in itself enough. The court decides whether to make an EPO. But the local authority decides whether to remove. The local authority, even after it has obtained an EPO, is under an obligation to consider less drastic alternatives to emergency removal. Section 44(5) requires a process within the local authority whereby there is a further consideration of the action to be taken after the EPO has been obtained. Though no procedure is specified, it will obviously be prudent for local authorities to have in place procedures to ensure both that the required decision making actually takes place and that it is appropriately documented;
  13. Consistently with the local authority's positive obligation under Article 8 to take appropriate action to reunite parent and child, section 44(10)(a) and 44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under section 44(4)(b)(i) to the parent from whom the child was removed if 'it appears to the local authority that it is safe for the child to be returned'. This imposes on the local authority a continuing duty to keep the case under review day by day so as to ensure that parent and child are separated for no longer than it is necessary to secure the child's safety. In this, as in other respects, the local authority is under a duty to exercise exceptional diligence;
  14. Section 44(13) of the Children Act 1989 requires the local authority, subject only to any directions given by the court under section 44(6), to allow a child who is subject to an EPO 'reasonable contact' with his parents. Arrangements for contact must be driven by the needs of the family, not stunted by lack of resources.

End