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Contents

1. Advance Notice to the Parents
2. Grounds for an Order
3. Duration, Service, Application to Discharge
4. Human Rights Issues
5. Other Options
6. Two Recent Cases
7. Need for Thorough Knowledge of Facts and Clear Risk Assessment
8. How to get an EPO
9. Effect
10. Directions
11. Warrant
12. Interim Care Order
    
    Appendix 1: Recent Case Studies

1. Advance Notice to the Parents

The required minimum period of notice to the parents before an application can be made is 24 hours. But the order can be granted without notice to the parents (the old term for this is ex parte) or after short (abridged) notice. Allowing applications to be heard without notice enables an immediate response and one which does not alert the parents. This can reduce the risk to the child, for example, where the parent might otherwise disappear, taking the child. The decision on whether to allow an application without notice, or on short notice, is made by the Clerk to the Justices, usually on the telephone.

2. Grounds for an Order

To grant an EPO the court must be satisfied that “there is reasonable cause to believe” that a child is “likely to suffer significant harm” unless removed or detained. Alternatively an EPO can be made if the court is satisfied that enquiries by social services or the NSPCC are being frustrated because access to a child has been unreasonably refused and they have “reasonable cause to believe” that access to the child is required as a matter of urgency.

3. Duration, Service, Application to Discharge

The order can last for up to 8 days and can be renewed for a further 7 days. An EPO must be served on the parents within 48 hours of the order being made. There is no appeal but if an EPO has been made without notice to the parents then they may apply to have the order discharged after 72 hours. EPO applications are “specified proceedings” which means that the court should appoint a children’s guardian to represent the child unless it is satisfied that this is unnecessary for the child’s welfare. If, during the currency of an EPO, the local authority discover that the conditions for the order are no longer satisfied then they must return the child to the parents immediately.

4. Human Rights Issues

The European Court of Human Rights has examined the use of emergency protection powers in several recent cases, including one involving the Children Act 1989. (P, C and S v. UK [2002] 2 FLR 631). Emergency intervention, like other child protection intervention, may breach article 8 – which protects the right to private and family life. The draconian step of removing a baby from the mother soon after birth must be supported by relevant and sufficient reasons. However, the court has accepted that there are cases where emergency intervention is required, even without prior notification to the parents, but has held that it is not appropriate to use such powers where concerns about the family’s care are long-standing and not in crisis. (Haase v Germany [2004] 2 FLR 39 – a case concerning emotional abuse and neglect). It has also emphasised the need to consider alternatives, and to involve the parents before removal powers are exercised.

5. Other Options

There are two other possible courses of action for a local authority faced with a child protection crisis where a child needs to be removed from home, or the parents have to be stopped from removing the child from hospital, foster care etc.

The police have a power under the Children Act 1989 (Section 46) to take the child into police protection for up to 72 hours where a police officer has “reasonable cause to believe” that the child would otherwise suffer significant harm. This power is available when it is not possible to leave a child in a situation for the few hours it will take to apply for an EPO without leaving the child at risk of significant harm.

Alternatively, the social worker may seek to persuade the parents to agree to their child being cared for away from home (under S.20 Children Act 1989) for a temporary period. This is only an option if the parents genuinely and freely agree rather than agreeing “under duress”.

6. Two Recent Cases

Also see Appendix 1: Recent Case Studies

In a recent case (X Council v B [2005] 1 FLR 341) the judge emphasised the serious nature of an EPO, stating that it required “exceptional justification” and that separation of parent and child should only be contemplated “if immediate separation is essential to secure the child’s safety; “imminent danger” must be “actually established”. Professor Judith Masson of Warwick University has observed that these views go further than the European Convention has gone when upholding decisions to permit emergency orders in three other cases, and fall outside the balance set in the Children Act 1989. In any event the judge accepted in the X v B case that the court had acted appropriately in granting the EPO however he thought that the local authority’s evidence was inadequate i.e. the court had enough evidence to grant the order but the local authority should have provided more. For more information about this case, see Appendix 1: Recent Case Studies

In Haringey LBC v C, E and another [2005] 2 FLR 47 another judge criticised the local authority in the “miracle baby” case for having applied for an EPO without notice. The judge said that in the light of the contact there had been between social services, the police and the people claiming to be the child’s parents, there was little justification for the procedure that denied those people any immediate right to make representations. He said “they could and should have been present at court on short notice, a step that might have avoided the distressing scenes that accompanied the forced removal of the child and which more than adequately would have guarded against the supposed risk of flight”. He said “practitioners in court should be more aware of the limits that there must be to the proper use of without notice emergency applications”.

7. Need for Thorough Knowledge of Facts and Clear Risk Assessment

So if you as a social worker believe that if the parents are given advance notice of the application they are likely to disappear with the child, or that the child’s welfare will be further put at risk by alerting them, then you must be able to explain the reasons for your belief by reference to your own knowledge of the facts in the particular case. Your lawyer will then be better able to convince the Clerk on the telephone that an application without notice is necessary. Applications for emergency protection will be successful if the social worker has a thorough knowledge of the factual background and has made a clear and reasonable assessment of the risks to the children (and has balanced them against the rights of the parents to participate in decisions).

8. How to get an EPO

Whether or not the clerk grants permission for the application to be made without notice, to obtain the order itself the social worker will either have to attend court to make the application (during normal hours), or attend the Justices home, or make the application to the Justice on the telephone.(The Emergency Duty Team deals with all applications outside of normal working hours and has access to the necessary emergency phone numbers.) The social worker will have to give evidence and, once again, thorough knowledge of the factual background and a clear assessment of the risks to the child will increase the likelihood of an order being made.

9. Effect

The effect of an EPO is to give parental responsibility to the applicant and to authorise removal of the child, and it operates as a direction to any person who is in a position to do so, to comply with any request to produce the child to the applicant. Intentional obstruction of someone exercising the power to remove is an offence.

10. Directions

On making an EPO, the court may make the following directions:-

• Medical/Psychiatric examination or other assessment of the child.
• That the child’s where-about be disclosed to the applicant.
• Authorising the applicant to enter premises specified in the order and search for the child (or another child in need of protection).
• Intentional obstruction of a person exercising the power of entry and search is an offence.

11. Warrant

Where an applicant has been prevented from exercising his/her powers under an EPO, or is likely to be obstructed, a warrant may be issued to a police officer to assist in the entry and search, using reasonable force if necessary. The court may order that the police officer be accompanied by a GP, a nurse or by a health visitor.

An exclusion requirement may be attached to an EPO (or an Interim care Order) so that an alleged abuser is required to leave the family home instead of the child.

12. Interim Care Order

In many cases, once the child’s immediate physical safety has been secured either by the child having been taken into police protection and/or by an EPO having been made, it will be necessary to consider applying for an interim care order if it is still not safe to return the child home. The decision whether to apply for an interim care order should be made with your legal representative as soon as possible. The parents are entitled to 3 days notice of such an application but once again the Justices’ Clerk may direct that an application can be made on shorter notice in some circumstances.

Appendix 1: Recent Case Studies

All practitioners need to be aware of two key cases:

(1) X Council v B [2005] 1 FLR 341

Munby J set out in full the domestic and ECHR case law relating to EPO's and formulated 14 points summarising the current law:

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 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.'
2. 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 of 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 s43 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, precise 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 of law.
10. Section 45(7)(b) 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 rr 20, 21(5) and 21(6) of the Family Proceedings Court (Children Act 1989) Rules 1991.  The FPC must 'keep a note of the substance of the oral evidence' and must also record in writing not merely its reasons but also any findings of fact.
11. The mere fact that the FPC is under the obligations imposed by rr 21 (5), 21(6) and 21(8), 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 as: (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.
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 s44(4)(b)(i) 'only ... in order to safeguard the welfare of the child'  The local authority must apply its mind very careful 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 of 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
13. Consistently with the local authority's positive obligation under Art 8 to take appropriate action to reunite parent and child, s44(10)(a) and s44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under s44(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 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 requires the local authority, subject only to any direction given by the FPC under s44(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.

(2)  Re X[2006] EWHC 510 (Fam)

McFarlane J delivered judgment in a case where the local authority had removed a child under an EPO, and then successive ICO's, only to return her to her family after 14 months when the care proceedings concluded with the threshold criteria not having been established.

The Judge quoted the Child Act Guidance and Regulations Volume 1, page 51: 'The purpose of the new order, as its name suggests, is to enable the child in a genuine emergency to be removed from where he is or be kept where he is, if and only if this is what is necessary to provide immediate short-term protection'  and said, "The words 'genuine emergency' and 'only what is necessary to provide immediate short-term protection' cannot, in my view, be stressed enough.'

He then set out additional guidance:

1. The 14 key points made by Munby J in X Council v B  should be copied and made available to the justices hearing an EPO on each and every occasion such an application is made;
2. It is the duty of the applicant for an EPO  to ensure that the  Council v B guidance is brought to the court's attention of the bench;
3. Mere lack of information or a need for assessment can never of themselves establish the existence of a genuine emergency sufficient to justify an EPO.  The proper course in such a case is to consider application for a Child Assessment Order or issuing s31 proceedings and seeking the court's directions under s38(6) for assessment.
4. Evidence given to the justices should come from the best available source.  In most cases this will be from the social worker with direct knowledge of the case;
5. Where there has been a case conference with respect to the child, the most recent case conference minutes  should be produced to the court.
6. Where the application is made without notice, if possible the applicant should be represented by a lawyer, whose duties will include ensuring that the court understands the legal criteria required both for an EPO and for an application without notice;
7. The applicant must ensure that as full a note as possible of the hearing is prepared and given to the child's parents at the earliest possible opportunity;
8. Unless it is impossible to do so, every without notice hearing should either be tape-recorded or be recorded in writing by a full note being taken by a dedicated note taker who has no other role (such as clerk) to play in the hearing;
9. When the matter is before the court at the first 'on notice' hearing, the court should ensure that the parents have received a copy of the clerk's notes of the EPO hearing together with a copy of any material submitted to the court and a copy of the justices' reasons;
10. Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without notice;
11. 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.
12. 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;
13. 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.  Once an application for an ICO has been issued in such a case, it is likely that justices will consider that it should immediately be transferred up for determination by a county court or the High Court;
14. The requirement that the justices give detailed findings and reasons applies as much to an EPO application as it does to any other application.  In a case of urgency, the decision may be announced and the order made with the detailed reasons prepared thereafter;
15. Where an application is made without notice, there is a need for the court to determine whether or not the hearing should proceed on a without notice basis (and to give reasons for that decision) independently of any subsequent decision upon the substantive EPO application.

End