Applications for Emergency Protection Orders

1. Introduction

An emergency protection order (EPO) granted the Local Authority parental responsibility for the child or children subject to the order for the duration of the order. The parenting assessment is granted under S.44(4)(c) of the Children Act 1989 and unlike parental responsibility under a Care Order or Interim Care Order there are conditions attached to when and how the Local Authority can use that parental responsibility by limiting it to taking "such action … as is reasonably required to safeguard or promote the welfare of the child (having regard in particular to the duration of the order)".

It allows the Local Authority to separate a child from a parent or continue to separate if separation occurred prior to the application (for example where the police have invoked their protective powers and placed a child in the care of the Local Authority) Separation is only lawful it 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 they are:
  • 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.

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. Ordinarily an ICO would be applied for at the same time as an EPO as it is on the same application form and there is no difference in the fee if you apply for one or both orders. In practice, the ICO first hearing date will be listed at the hearing where the EPO is granted and should the Local Authority seek to continue to seek parental responsibility to safeguard the children then the Court would make an ICO which has a legal test is less onerous to cross and the order can be made for a longer duration.

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. 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.

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 they are 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.

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.

2. Decision to Apply for an EPO

Before an application for an EPO can be made there should be a legal planning meeting (LPM). Due to the nature of the application and the speed and urgency involved permission for an LPM is only needed from a Service Manager for the purpose of an EPO. As much documentation as possible should be provided to those attending the LPM for example the Child Protection Conference Report, medical report or Strategy meeting note, PPD1, S.47.

The Service Manager should attend at the LPM if possible. If not they must be provided with the legal advice, and all documents, to establish whether there is sufficient evidence to establish that the Threshold Criteria for an application are met as it is their decision whether or not to make the application.

During the LPM as much case planning as possible should take place however if there is not enough time then there can be a further LPM undertaken after the EPO hearing.

Where the plan is to accommodate a child(ren) a second service manager must give APR level approval to accommodate (whether this is in a foster care placement, parent and child placement or a kinship care arrangement.

The Local Authority should be legally represented when applying for an EPO. If the application is being made out of hours the duty arrangements for legal advice should be followed.

3. Threshold for an EPO – Re X

The 14 key points made by Mr Justice Munby in Re X Council v. B, referred to as the checklist are:

1. An EPO, summarily removing a child from his parents, is a "draconian" and "extremely harsh" measure, requiring "exceptional justification" and "extraordinarily compelling reasons". Such an order should not be made unless the 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.

Additional points to note from Re X (Emergency Protection Orders):

• Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without notice;
• Cases of sexual abuse where the allegations are inchoate and non-specific, and where there is no evidence of immediate risk of harm to the child, will rarely warrant an EPO;
• Cases of fabricated or induced illness, where there is no medical evidence of immediate risk of direct physical harm to the child, will rarely warrant an EPO;
• Justices faced with an EPO application in a case of emotional abuse, non-specific allegations of sexual abuse and/or fabricated or induced illness, should actively consider refusing the EPO application on the basis that the local authority should then issue an application for an interim care order.

Timing is extremely important in an application for EPO. Ideally, the Local Authority will want to evidence that it is taking immediate safeguarding steps following a precipitating incident becoming known to the Local Authority. Waiting even a day may mean that you are unable to satisfy the Court that there is an "exceptional justification" and "extraordinarily compelling reasons" to make the Order.

If it is believed that the window of opportunity has passed and an EPO is no longer an option that does not prevent the Local Authority from seeking an ICO on abridged notice.

4. Preparation of the Application

The legal team will immediately notify the court of the intention to issue, and prepare the application form. The application form will be issued on the basis of the information and documents from the LPM and without a statement or care plan in order to secure a listing with the court.

As soon as a decision has been made to apply for an EPO, the social worker should prepare the Urgent Statement to support the application for an EPO. if there is no time to prepare the statement the application can progress on the basis of verbal evidence. However, best practice is to prepare a statement if possible.

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 (email will suffice) provided by the medical practitioner with direct knowledge of the child. If this is not possible the minute of the strategy meeting where the medical practitioner gave a verbal update should be provided.

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 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. This must be justified in writing on the application as the Court will normally determine this application on a paper basis. They may speak to the lawyer with conduct if more information is needed prior to listing.

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.

There is no right of appeal from an EPO either if it is granted or refused unless made without notice (ex parte).

The Court does not have to list the EPO on the same day and can choose to list the case on a different date. The decision is the Court’s however the legal team will make representations to the court as needed to secure the desired hearing.

The social worker will need to contact the parents to give them notice of the hearing and should provide assistance to them to attend the hearing either in person or remote.

5. Hearing of the Application

The social worker must attend at the hearing and is likely to have to give some evidence or as a minimum confirm their statement.

Parents should be given a note of any evidence, submissions and judgement. Either parties agree who is taking the note or a transcript should be obtained. The parents should be provided a copy of the notes and the Order as soon as possible after the hearing.

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.