4.7 Applications for Emergency Protection Orders

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4.7 Applications for Emergency Protection Orders

SCOPE OF THIS CHAPTER

This chapter provides information on the process by which the local authority can apply for an Emergency Protection Order where there is reasonable cause to believe that a child is at immediate risk of Significant Harm.

RELEVANT GUIDANCE

Statutory Guidance for Local Authorities on Court Orders and Pre-Proceedings (2014)

AMENDMENT

Section 4, Preparation of the Application was updated in November 2015 to include information on the process for applying for Emergency Protection Orders outside of normal office hours. Since June 2015, these applications have been managed by Urgent Court Business Officers (UCB Officer) under the Urgent Court Business Scheme.

Derby City Council uses a Strengths Based Approach for all work with children and families.

Introduction
Decision to Apply for an EPO
Police Powers of Protection
Preparation of the Application
Hearing of the Application
After the Hearing
Powers to Assist in Discovery of Children Who may be in Need of Emergency Protection
X Council v B Guidance

1. Introduction

An Emergency Protection Order should only be applied for in exceptional circumstances. In the first instance consideration should be given to exploring all other options to secure the safety of the child within the family and existing social networks. Where appropriate, consideration should be given to having a discussion with the Police with a view to taking the child or young person into Police Protection.

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.

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 (EPO) 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.

On any application for an EPO, the child's welfare is the paramount consideration in deciding whether an order should be made and the court must not make an order unless doing so would be better for the child than making no order at all.

The EPO will grant the local authority limited 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) or to be produced to the applicant. It is important to note that parental responsibility can only be exercised in such a way as is reasonably required to safeguard or promote the welfare of the child having particular regard to the length of the order.

An EPO can be made for a maximum period of 8 days with a possible extension of up to a further 7 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. No EPO should however be made for any longer period than is absolutely necessary to protect the child. 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 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.

2. Decision to Apply for an EPO

Where there is a risk to the life of a child or the possibility of serious immediate harm, the social worker and team manager should act quickly to secure the immediate safety of the child. Strategy Discussions, over the telephone if necessary, should take place with the; Police, Health, School/Education Provision and/or nursery at the earliest opportunity.

Emergency action may be necessary as soon as the referral is received from a member of the public or more likely from any agency involved with children or parents. Alternatively, the need for emergency action may become apparent only over time as more is learnt about a child or the adult carer's circumstances. Neglect, as well as abuse, can pose such a risk of Significant Harm to a child that urgent protective action is needed. Wherever possible and as long as it does not compromise the safety of a child, the social worker should see the child and establish their wishes and feelings if they are of an age or level of understanding to provide them.

The social worker and team manager should always consider whether action is also required to safeguard and promote the welfare of other children in the same household (e.g. siblings), in the household of an alleged perpetrator, or elsewhere.

Responsibility for immediate action rests with the host authority where the child is found, but should be in consultation with the child's home authority, if they normally reside within another local authority.

Emergency action will normally take place following an immediate Strategy Discussion between Police and appropriate health professionals.

Immediate protection may be achieved by:

A parent taking action to remove an alleged abuser;
An alleged abuser agreeing to leave the home;
The child not returning to the home;
The child being removed either on a voluntary basis or by obtaining an emergency protection order (EPO);
Removal of the child/ren or prevention of removal from a place of safety under Police powers of protection.

3. Police Powers of Protection

The Police have emergency powers under S46 of the Children Act, 1989 to enter premises and remove a child to ensure their immediate protection or to keep a child in a safe place e.g. hospital. This power can be used if Police have reasonable cause to believe that a child is suffering or is likely to suffer Significant Harm. These powers can be very helpful in emergency situations but should be used only when necessary. Whenever possible the decision to remove a child from a parent or carer should be made by a court. When Police powers of protection are used, an independent Police Officer of at least inspector rank must act as the designated officer. The Police Protection Order lasts for up to 72 hours and the Police have to pass a child removed from a home over to the local authority as soon as practical.

Where immediate action to protect a child has taken place, a Strategy Meeting / Discussion should take place within 2 working days of the emergency action to plan the next steps if it has not already occurred.

Strategy discussion / meeting

In deciding whether to call a Strategy Meeting / Discussion, the local authority children's social care manager must consider the:

Seriousness of the concern/s;
Repetition or duration of concern/s;
Vulnerability of child (through age, developmental stage, disability or other pre-disposing factor e.g. Child in Care);
Source of concern/s;
Accumulation of sufficient information and patterns of concerns;
Context in which the child is living (e.g. a child in the household already subject of a current child protection plan).

Predisposing factors in the family that may suggest a higher level of risk of harm (e.g. mental health difficulties, parental substance misuse or domestic abuse).

A Strategy Discussion / Meeting should be used to:

Share available information including the findings of any assessments and the action points, if already in place;
Consider the needs of other children who may be affected in the same household (e.g. siblings), the household of an alleged perpetrator, or elsewhere;
Decide whether an assessment under s.47 of the Children Act 1989 (s47 enquiries) should be initiated, or continued if it has already begun;
Plan how the s.47 Enquiry should be undertaken (if one is to be initiated), including the need for medical assessment or treatment, and who will carry out what actions, by when and for what purpose;
Agree the conduct and timing of any criminal investigation;
Agree what action is required immediately to safeguard and promote the welfare of the child, and / or provide interim services and support. If the child is in hospital, decisions should also be made about how to secure the safe discharge of the child; where the child is to be separated from family members, consideration should be given to family time and supervision;
Determine what information from the Strategy Discussion / Meeting will be shared with the family, including whether such information sharing may place a child at increased risk of Significant Harm or jeopardise Police investigations into any alleged offence/s;
Determine if legal action is required.

Before an application for an EPO can be made, the team manager should consult with Legal Services to establish whether there is sufficient evidence to establish that the Threshold Criteria for an application are met, and also to be advised upon whether the grounds exist to apply for an order without giving prior notice to the parent(s) or those who hold PR (ex parte). An ex parte application will only be made if the case is wholly exceptional and genuinely one of emergency or other great urgency, including where there is an evidenced risk of absconding.

In all but the most urgent cases where medical evidence is being relied upon, there should be a Strategy Meeting attended by the social worker, the team manager, the local authority's solicitor, Police and the responsible doctor to consider the evidence to establish that the threshold criteria for an application are met.

The approval of a Service Director or Head of Service is required before the application is made, including whether the application should be made ex parte. The team manager, who has been present in the Strategy Meeting, following approval of the DHOS, should seek the approval of a Head of Service or in their absence a Service Director.

Before giving the approval, the guidance given by Mr. Justice Munby in X Council v B should be considered by the Head of Service or Service Director. This is set out in Section 8, X Council v B Guidance.

Decisions by the Service Director or Head of Service should always be recorded under 'management decision' in the child's social care electronic record. They should include the rationale for the decision and a consideration of X Council v B.

4. Preparation of the Application

Office Hours

Following legal advice and a decision taken to apply for an EPO, the local authority solicitor will contact the legal adviser to the Family Court to discuss the application and if appropriate, to seek leave to apply for the EPO ex parte. The court legal adviser will consider the application for leave and if granted, will then confirm the time, date and venue for the hearing. If the application is to be lodged on notice, the court legal adviser may also give details of the time, date and venue for the hearing on the basis that the application will then be lodged at court, within an agreed timescale. The local authority solicitor will complete the application for an Order (Form C110A). The application forms together with evidence filed in support of the application will be lodged at court and if the hearing is to be on notice, copies of the application, statements of evidence or any other supporting documentation (e.g. case conference reports or social care assessments) will then be served on the respondents by the social worker.

Out of Office Hours

Following agreement of the Head of Service or Service Director, the social worker will obtain legal advice from On-call Solicitors about whether the grounds are met:

The out of hours service is provided by a number of named solicitors, who should be contacted in order. The contact details are held by Care Line, legal services and by all Heads of Service and Service Directors. If the first person on the list is not available then ring the next named person and so on.

Authorisation

Prior to contacting the service, authorisation must be obtained from the relevant Service Director or Head of Service. The name of the person authorising contact should be given when advice is sought from on-call solicitors.

Confirmation of Advice Given

A written note will be emailed by the on-call solicitors to legal services at Derby City Council Legal Services by 9 am on the next working day.

The following details must be included:

A summary of advice given and any action taken;
Whether any further action is required;
The name of the authorising officer;
The name of the referring officer.

A copy of the note should be sent to the referring officer and the authorising officer.

Following the creation of the Single Family Court, the President of the Family Division has introduced changes to the way in which 'out of hours', Emergency Protection Orders (EPOs) will be dealt with.

Applications for EPOs have been managed by Urgent Court Business Officers (UCB officer) under the Urgent Court Business Scheme.

Period of Cover

Applications received after 4pm should not be referred to the 'out of hours' service. If the appropriate ticketed judiciary are still within the court premises then the court should be contacted to deal with the application. If however, there is no Judiciary available, then the UCB Officer will be contacted by the on-call solicitor.

The local authority will be asked to email the following documentations to the UCB Officer:
- A copy of the C110a application which should contain telephone numbers for all the parties;
- A summary of the application which should include a chronology of events, the reasons for the urgency of the application and what the imminent danger is, reasons for ex-parte (if applicable) and reasons why Police Powers have not been executed;
- The Social Worker's statement which should include their name and contact details (if the statement is not available an explanation should be given in the summary as to why it is not available).

EPO Application Hearings will not be heard in a court room but will be heard by telephone conference;

The UCB Officer will provide details of the telephone conference number once they have liaised with the Judge. It will be your responsibility (or the legal representative, subject to Head of Service approval to instruct out of hours solicitors) to pass this number onto any parties that will be required to attend the telephone conference hearing;

The local authority will also be responsible for speaking with CAFCASS to ensure that a Guardian is aware of the proceedings;

All telephone conferences will be recorded;

If the matter does require a formal hearing, the Judge will make an interim order and the UCB Officer will make arrangements for the matter to be heard on the next working day.

Contingency

In the unlikely event that you are unable to contact the UCB Officer, HMCTS operates an 'out of hours' service in London (the number has been provided to the Head of Service and Deputy Heads of Service).

As soon as a decision has been made to apply for an EPO, the social worker should if time allows 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.

The local authority's legal representative should review the evidence prior to, and during the Hearing, and advise the social worker & their manager as to the appropriateness of the application and whether alternative action or applications are more appropriate.

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.

5. Hearing of the Application

The local authority legal representative or the social worker (if the local authority legal representative is not present) who attends Court (or where out of hours, as set out above by telephone) 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 8, 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 Judge's reasons.

Where the court grants an EPO, the order may contain a direction as to any medial or psychiatric or other assessment of the child. It may order that there should be an examination or assessment or that there should be no such examination. If the child is of sufficient understanding to make an informed decision, he may refuse to submit to the examination or assessment.

The EPO may also contain a direction as to any family time to be allowed between the child and any named person. Where there is no direction as to contact, the local authority must allow reasonable contact with his parents, any person who is not a parent but who has PR, any person with whom he was living immediately before the making of the order, any person who is allowed to have contact by virtue of a court order and any person acting on behalf of any of those persons.

If the social worker is of the opinion that he/she may encounter difficulties in gaining access to a property where the child is believed to be staying, consideration should be given to applying for an order that authorises entry and search of specified premises. If there is fear that a person at the premises may be violent, then an application should be made for a warrant to be issued to authorise a Police officer to assist the social worker.

Where an EPO is granted the court may also make an exclusion requirement under section 44(A) Children Act 1989. The grounds for making such an order are that there is reasonable cause to believe that if a person is excluded from the house where a child lives, the child will cease to suffer or cease to be likely to suffer Significant Harm and another person living in the house is able and willing to care for the child and that person consents to the making of the exclusion requirement. The exclusion requirement may require a person to leave the house where the child is living, prevent him from entering the house or exclude him from a defined area. A power of arrest may be attached to the exclusion requirement.

When a child is subject to an EPO, if the social worker is of the opinion and can satisfy the court that there is reason to believe that a child has been unlawfully taken or is being unlawfully kept away from the social worker, or has run away from the social worker or is missing, then an application can be made for a recovery order under section 50 Children Act 1989.

6. After the Hearing

After the hearing the social worker should arrange an urgent Gateway Meeting/Out of Gateway Decision to seek approval to issue Urgent Care Proceedings, where necessary. If a Strategy Discussion/Meeting has not already taken place, it should be held within 2 days of the making of the Order.

Social workers should be mindful at all times that even though an EPO has been granted, the local authority remains under a continuing obligation to consider less drastic alternatives to removal. A positive obligation is placed on the local authority to return a child that it has removed under an EPO to the parent as soon as it appears that it is safe for the child to be returned. The local authority should review this continuing duty on a daily basis to ensure that the parent and child are separated for no longer than is necessary to secure the child's safety.

In the event that an EPO is NOT granted, there should be an immediate Strategy Discussion to identify any continuing concerns, a need for a S47 Enquiry or any other action. If the child has been in hospital, there should be a Strategy Meeting prior to discharge, and in all cases, at the earliest opportunity. Attendance should include social worker, Police, community health, hospital including examining paediatrician if applicable and other agencies as appropriate.

7. 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, they 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.

8. X Council v B GUIDANCE

The 14 key points made by Mr. Justice Munby in the above case are:

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;
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;
Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety;
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;
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;
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;
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;
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;
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;
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;
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;
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;
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;
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.

Derby City Children's Social Care Procedures