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 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 he/she 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.
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.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 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.
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 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.
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.
As soon as practicable after the hearing the social worker should convene a Legal Planning Meeting and seek the approval of the Designated Manager (Care Proceedings) to initiate Care Proceedings where necessary.
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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.
The 14 key points made by Mr Justice Munby in the above case are:
Only valid for 48hrs