Applications for Emergency Protection Orders
This chapter should be read in conjunction with the Legal Information Pack for Social Workers.
Any decision to seek legal advice/involvement must be in line with Section 1, Access to Legal Services and Costs within Proceedings of Court Proceedings Procedure.
AMENDMENTHyperlinks in this chapter were revised and updated in October 2012.
Under Section 44 of the Children Act 1989, the local authority can apply for an Emergency Protection Order (EPO) where there are reasonable grounds for believing there is an immediate risk of Significant Harm to a child. Applications will usually be made to the Family Proceedings Court.
The EPO will grant the local authority limited Parental Responsibility for the child which will enable the child to be removed to other accommodation or to remain in a place where he/she is being accommodated (e.g. a hospital or foster placement). Under an Emergency Protection Order, the Local Authority should only exercise this authority to the extent reasonably required to safeguard or promote the welfare of the child, having regard in particular to the duration of the order, which lasts up to 8 days, although it can be extended for up to a further 7 days. Under an EPO, if medical treatment etc. is required, then a specific order or direction is required from the court if parental consent is not forthcoming.
An EPO can be made for a maximum period of 8 days.
An application for an EPO should only be made by the local authority in exceptional circumstances where there are compelling reasons which require the local authority to share Parental Responsibility for the child and, where necessary, separate the child from the care of his or her parents.
Cases of Emotional Abuse or chronic ongoing neglect will rarely, if ever, warrant an EPO. Likewise, cases of Sexual Abuse, where the allegations are non-specific and where there is no evidence of immediate risk to the child, will rarely warrant an EPO. Cases of Fabricated or Induced Illnesses, where there is no medical evidence of immediate risk of direct physical harm to the child, will rarely warrant an EPO.
Where the real purpose of the application is to ensure that the child is assessed, then consideration should be given to whether that objective cannot be equally effectively achieved by an application for a Child Assessment Order or by the initiation of Care Proceedings and seeking the Court's direction under section 38(6) of the Children Act 1989 for an assessment.
What is directed under S.38(6) must clearly be an examination or assessment of the child including where appropriate his relationship with his/her parents and any other assessment.
2. Decision to Apply for an EPO
Before an application for an EPO can be made, consultation with Legal Services should take place to establish whether there is sufficient evidence to establish that the Threshold Criteria for an application are met.
The approval of the Services Manager is required before the application is made, including whether the application should be made ex parte (i.e. without prior notice being given to the parents).
The social worker will seek the Services Manager's approval by outlining the reasons for the application, the outcome of the legal consultation and the proposed plan for the child should an EPO be granted. Any available documentation, for example the Child Protection Conference Report or a medical report, should also be provided to the Services Manager.
Before giving the approval, the guidance given by Mr. Justice Munby in X Council v B should be considered by the Services Manager. This is set out in Section 6, X Council v B Guidance.
It should be stated in the care plan presented to court that removal from parents care is sought. If there is change in the child's circumstances between obtaining the order and acting on it a further discussion must take place with a Services Manager before the child is removed.
3. Preparation of the Application
As soon as a decision has been made to apply for an EPO, the social worker should prepare a written Statement of Evidence to support the application for an EPO C1 and Supplement for an Application for an EPO (Legal Form C11). Where the Statement is hand written, it must be legible; a typed copy of the statement must be filed with the Court as soon as practicable after the Court hearing.
The evidence must be provided from the best available source; usually this will be the social worker with direct knowledge of the child. Where the application refers to medical opinion, the application must be supported by a written medical report (a faxed copy if necessary) provided by the medical practitioner with direct knowledge of the child.
Where a Child Protection Conference has been held, the minutes of the most recent conference should be produced to the Court.
Where it is considered that the application for an EPO should be made without prior notice being given to the parents and the Services Manager approves this course of action, the leave of the Court will be required and the social worker or his/her legal representative should contact a Legal Adviser at the Family Proceedings Court in order to apply for such leave.
4. Hearing of the Application
The social worker who attends Court in support of an application for an EPO must ensure that the guidance given by Mr. Justice Munby in X Council v B (set out in Section 6, X Council v B Guidance) is brought to the attention of the Court.
Where the parents have not been given notice of the hearing and/or do not attend the hearing, the local authority legal representative or, in the absence of a legal representative, the social worker who attends Court must also ensure that a full note is made of the hearing so that a copy can be provided to the parents. This should be handed to the parents as soon as possible after the hearing, together with a copy of the EPO, the application, any written evidence submitted to the Court and the Justices' reasons.
5. After the Hearing
As soon as practicable after the hearing the social worker should convene a Legal Planning Meeting (see Legal Planning Meetings Procedure) and seek the approval of the Services Manager to initiate Care Proceedings where necessary.
6. X Council v B Guidance
The 14 key points made by Mr. Justice Munby in the above case are:
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 Proceedings Court (FPC) 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.
- Both the local authority which seeks and the FPC which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and the FPC 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;
- Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety;
- 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;
- 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;
- The evidence in support of the application for an EPO must be full, detailed and compelling. Unparticularised 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;
- 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;
- 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;
- 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;
- Section 45(7)(b) of the Children Act 1989 permits the FPC 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 FPC. It is, therefore, particularly important that the FPC complies meticulously with the mandatory requirements of rules 20, 21(5) and 21(6) of the Family Proceedings Courts (Children Act 1989) Rules1991. The FPC 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;
- The mere fact that the FPC is under the obligations imposed by rules 20, 21(5) and 21(6) is no reason why the local authority should not 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 FPC either before or during the course of the hearing; and (ii) what legal authorities were cited to the FPC. 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 FPC 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;
- 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 FPC 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;
- 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;
- Section 44(13) of the Children Act 1989 requires the local authority, subject only to any directions given by the FPC 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.
7. Warrants and Supplementary Orders
The Team Manager must consult with CLU before seeking any of the following warrants.
Warrants can be applied for at the same time as an application for an EPO. They can be issued under s48 (9) of the Children Act 1989 when it appears to the Court that the Social Worker seeking to exercise powers under the EPO has been or is likely to be prevented from doing so by being refused entry to the premises concerned or access to the child concerned.
Such a warrant authorises a constable to assist the Social Worker in exercising their powers under the EPO is used when the child is living at home or with family/friends and the Team Manager must complete an application using Form C19.
Similarly a warrant can be issued under s102 (1) of the Children Act 1989 to empower a constable to assist a person gain access to a child or inspect premises when the child is subject to a Supervision Order or living:
- In a children's home;
- In a private fostering arrangement;
- With a childminder;
- In a day care establishment;
- In a nursing home;
- In a psychiatric unit;
- In an independent school.
Where a warrant is likely to be needed Team/Assistant Team Manager must complete an application using Form C12.
These can be applied for at the same time as the application for an Emergency Protection Order. An order:
- To disclose the child's whereabouts;
- Authorising the search for, taking charge of, and delivery of a child;
- Authorising the search for another child may be used when there is reason to believe another child, whose name is not known, may be at similar risk to the named child on an EPO.