Applications for Emergency Protection Orders

1. Introduction

An emergency protection order (EPO) enables a child to be removed from where s/he is, or to be kept where s/he is, if this is necessary to provide immediate short-term protection.

Under Section 44 of the Children Act 1989, the local authority (or any person) can apply to the family court for an Emergency Protection Order where:

• The court is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if s/he is:
  • Not removed to accommodation provided by the applicant; or
  • Does not remain in the place in which the child is being accommodated; or
• Section 47 enquiries are being frustrated by unreasonable refusal of access to the child, and the local authority has reasonable cause to believe that access is needed as a matter of urgency.

The EPO will grant the local authority parental responsibility for the child which will enable the child to be removed to other accommodation or to remain in a place where they is being accommodated (e.g. a hospital or foster placement).

An EPO can be made for a maximum period of 8 days, with a possible extension of up to a further seven days, to a maximum of 15 days. Extensions may be granted if the court has reasonable cause to believe that the child is likely to suffer Significant Harm if the order is not extended.

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.

The court may give specific directions with regard to contact (with parents/significant others) and about medical or psychiatric examination or other assessment of the child. 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 can attach an exclusion requirement to an EPO which can exclude the relevant person from the home, and from a designated area around the home. A power of arrest can be attached to the exclusion requirement.

2. Decision to Apply for an EPO

Planned emergency action will normally take place following a strategy discussion between the local authority, police and other relevant agencies. Where it is necessary to act immediately, a Strategy Discussion should take place as soon as possible afterwards.  

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 Designated Manager (Emergency Protection Orders) 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 Designated 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 Designated Manager.

Before giving the approval, the guidance given by Mr Justice Munby in X Council v B should be considered by the Designated Manager. This is set out in Section 7, X Council v B Guidance.

After an EPO is made, the further approval of the Designated Manager (Emergency Protection Orders) must be sought before any decision is made to remove the child from the parents' care, where this was not part of the plan presented to the Court.

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. 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 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 Designated Manager (Emergency Protection Orders) approves this course of action, the leave of the Court will be required and the social worker or their legal representative should contact a Legal Adviser at the Family Court in order to apply for such leave. 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.

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 7, 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 reasons.

5. After the Hearing

As soon as practicable after the hearing the social worker should convene a Legal Gateway/Planning Meeting and seek the approval of the Designated Manager (Care Proceedings) to initiate Care Proceedings where necessary.

For further information see:

• Care and Supervision Proceedings and the Public Law Outline; and
• Legal Gateway/Planning Meetings Procedure.

6. Powers to Assist in Discovery of Children who May be in Need of Emergency Protection

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.

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 child's whereabouts are unknown, but that information is held by another person, the court may order that person to disclose the information when requested to do so.

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 applicant believes there may be another child on the premises which is to be searched, who ought also to be the subject of an EPO, an order should be sought authorising a search for that child as well. Where the name of the second child is not known, s/he should be described as clearly as possible in the order. If a second child is found on the premises and the applicant is satisfied that there are sufficient grounds for making an EPO, the order authorising the search for the second child has effect as if it were an EPO. If this happens, then the result of the search, and what action was taken and/or is planned as a result, must be reported to the court.

7. 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. 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;
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.