Applications for Emergency Protection Orders

1. Introduction

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

1.1 Roles and Responsibilities

It is the role of the social worker to:

• Identify when an application for an Emergency Protection Order may be needed;
• Discuss the potential for an Emergency Legal Order with their manager and at the Legal Planning Meeting / Legal Gateway/Planning Meetings;
• Work with Legal Services to prepare relevant documentation;
• Arrange a placement for the child, or assess the place where they are living to ensure that they are safe.

The consultant social work manager is responsible for:

• Providing supervision and reflection for the social worker's decision;
• Authorising the decision to seek legal advice from the Legal Gateway/Planning Meetings.

The Head of Service is responsible for:

• Chairing the Legal Gateway/Planning Meeting;
• Requesting authorisation from the Director of Operations for the decision to apply for an Emergency Protection Order;
• Authorising next steps before the Emergency Protection Order expires.

1.2 The Purpose of an Emergency Protection Order

Under Section 44 of the Children Act 1989, the local authority / Slough Children First can apply to the family court for an Emergency Protection Order where:

• Slough Children First 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 Slough Children First has reasonable cause to believe that access is needed as a matter of urgency.

1.3 Content

The EPO will grant Slough Children First Parental Responsibility for the child which will enable the child to either:

The court may give specific directions with regard to:

• Contact (with parents/significant others); and
• Medical or psychiatric examination or other assessment of the child;
• Exclusion requirements, excluding relevant person from the home or a designated area around the home. This can include power of arrest.

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 Slough Children First should apply for a Child Assessment Order.

1.4 Timescales

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.

1.5 Good Practice

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 Slough Children First 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

2.1 Roles and Responsibilities

It is the role of the social worker to:

• Assess the risk of significant harm to a child;
• Arrange a strategy meeting with the police (and other agencies) to determine actions to keep the child safe, including the possible need for an Emergency Protection Order;
• Prepare an outline of the reasons for an Emergency Protection Order for the Legal Gateway/Planning Meetings;
• Consult with their manager for advice;
• Prepare any documentation to support an application.

The Consultant social work manager is responsible for:

• Considering the recommendation to seek legal advice;
• Arranging urgent consultation with the Head of Service.

The Legal Planning Meeting is responsible for:

• Providing legal advice about whether the threshold has been met;
• Providing support in applying to court;
• Providing advice on leave to not notify parents of the application.

The Head of Service is responsible for:

• Authorising the decision to apply for an Emergency Protection Order;
• Authorising any decision to not notify the parents of the intention to apply for an Emergency Protection Order.

The Director of Operations is responsible for:

• Authorising any decision to remove the child from the parents' care when this was not part of the care plan approved by the court and returning the matter to court.

2.2 Timescales

A strategy discussion must be held as soon as significant risk of harm is identified (See also the Slough Multi-Agency Safeguarding Children Partnership Procedures). Where it is necessary to act immediately, a Strategy Discussion should take place as soon as possible afterwards.

2.3 Content

When asking for legal advice, the social worker prepares a summary of the risks to the child, including:

• Reasons for application;
• Any previous legal advice;
• The proposed plan for the child should the EPO be granted;
• Any existing plans and reports, e.g. the Child Protection Conference minutes or medial reports.

2.4 Good Practice

When considering whether emergency action is necessary, consideration should also be given to the needs of other children in the same household or in the household of an alleged perpetrator.

Before giving the approval, the Director of Operations must consider the guidance provided by Justice Munby:

• An EPO is 'draconian'. The use of an EPO must be proportionate to the risk of harm to the child;
• Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety. If a less draconian order can be used, for example a Child Assessment Order this should be carefully considered;
• Where the application for an EPO is made ex parte, Slough Children First 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.

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

3.1 Roles and Responsibilities

The social worker is responsible for preparing a Written Statement of Evidence.

The social work manager approves the Written Statement of Evidence.

3.2 Content

A written Statement of Evidence to support the application for an EPO must:

• Be legible if hand-written and typed up as soon as practicable and submitted to court;
• Be based on evidence from the best available source, usually the social worker with the best knowledge of the child;
• Include written medical reports, where the application refers to medical evidence;
• Include records of previous meetings and discussions about the child, for example the Child Protection Conference minutes.

Where it is considered that the application for an EPO should be made without prior notice being given to the parents and the Head of Service 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 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.

3.3 Good Practice

Based on the guidance provided by Justice Munby (set out in full below):

• An EPO should only last for as long as necessary to ensure the safety of the child. When an application is made without notifying parents, the length of the EPO should be as short as possible;
• The evidence in support of the application for an EPO must be full, detailed and compelling. Unparticularised generalities will not suffice. The sources of any hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning;
• The evidential burden on Slough Children First 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.

4. Hearing of the Application

4.1 Roles and Responsibilities

The social worker is responsible for:

• Attending the hearing;
• Giving evidence as required by the court;
• Bringing to the attention of the court the principles set out in guidance given by Mr Justice Munby in X Council v B (set out in Section 7, X Council v B Guidance);
• Making a record of the hearing for the child's file and for sharing with parents of absent from court.

4.2 Timescales

Parents must be notified of the hearing as soon as is practicable. Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by Slough Children First for an EPO. They must also be given proper notice of the evidence Slough Children First is relying upon.

4.3 Good Practice

Based on guidance from Justice Munby:

• 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.

5. After the Hearing

5.1 Roles and Responsibilities

The social worker manager is responsible for:

• Ongoing supervision and care planning for the child;
• Seeking advice from the Legal Advisor regarding any applications for an Interim Care Order, once the EPO expires.

5.2 Timescales

If parents do not attend the hearing, a written record of the hearing 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.

Slough Children First'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.

Care planning and planning further legal proceedings should begin as soon as practicable after the hearing.

For further information see: Care and Supervision Proceedings and the Public Law Outline and Legal Gateway/Planning Meetings Procedure.

5.3 Good Practice

Based on the guidance from Justice Munby:

Slough Children First 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:

• Exactly what documents, bundles or other evidential materials were lodged with the court either before or during the course of the hearing; and
• What legal authorities were cited to the court.

It will, therefore, be prudent for the Joint Legal Team 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.

Slough Children First has 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, Slough Children First is under a duty to exercise exceptional diligence.

Section 44(13) of the Children Act 1989 requires the local authority / Slough Children First, 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.

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

6.1 Roles and Responsibilities

The social worker is responsible for:

• Making attempts to secure the child to a place of safety, using any powers of entry and search granted by the court, such as a Recovery Order;
• Liaising with the police where necessary;
• Considering the need for removal given the child's immediate safety.

The police are responsible for:

• Assisting the social worker in securing entry and using reasonable force to secure the child, where there is court authority to do so.

6.2 Content

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.

Where those holding the child do not readily agree to hand the child over:

• 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 Slough Children First 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.

A Child Abduction Warning Notice (CAWN) can be issued by police to anyone thought to be harbouring a child, including any child under 16 and 16 to 18 year olds who are subject of an emergency protection order, or Care Order.

6.3 Good Practice

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. Slough Children First must apply its mind very carefully to whether removal is essential in order to secure the child's immediate safety.

This decision needs to be made by the social worker in consultation with the Consultant Social Work Manager and authorised by the Head of Service.

The mere fact that Slough Children First has obtained an EPO is not in itself enough. The court decides whether to make an EPO. But Slough Children First decides whether to remove. Slough Children First, 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.

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 Slough Children First which seeks and the court which makes an EPO assume a heavy burden of responsibility. It is important that both Slough Children First 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/Slough Children First'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 Slough Children First for an EPO. They must also be given proper notice of the evidence Slough Children First is relying upon;
8. Where the application for an EPO is made ex parte, Slough Children First 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 Slough Children First 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. Slough Children First 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/Slough Children First'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 Slough Children First 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 Slough Children First 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 Slough Children First shall exercise its power of removal under Section 44(4)(b)(i) 'only...in order to safeguard the welfare of the child.' Slough Children Firsty must apply its mind very carefully to whether removal is essential in order to secure the child's immediate safety. The mere fact that Slough Children First has obtained an EPO is not in itself enough. The court decides whether to make an EPO. But Slough Children First decides whether to remove. Slough Children First, 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 Slough Children First 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/Slough Children First 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 Slough Children First'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 Slough Children First 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 Slough Children First that it is safe for the child to be returned'. This imposes on Slough Children First 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, Slough Children First is under a duty to exercise exceptional diligence;
14. Section 44(13) of the Children Act 1989 requires Slough Children First, 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.