Application for Emergency Protection Orders

Under Section 44 of the Children Act 1989, the Local Authority can apply for an Emergency Protection Order (EPO) where there are reasonable grounds for believing there is an immediate risk of Significant Harm to a child. Applications will usually be made to the Family Proceedings Court.

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.

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.

Cases of Emotional Abuse will rarely, if ever, warrant an EPO. Likewise, cases of Sexual Abuse, where the allegations are non-specific and where there is no evidence of immediate risk to the child, will rarely warrant an EPO. Cases of Fabricated or Induced Illnesses, where there is no medical evidence of immediate risk of direct physical harm to the child, will rarely warrant an EPO.

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.

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 relevant Children's Service Manager 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 relevant Children's Service 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 relevant Children's Service Manager.

Before giving the approval, the guidance given by Mr. Justice Munby in X Council v B should be considered by the relevant Children's Service Manager. This is set out in Section 7, X Council v B Guidance.

After an EPO is made, the further approval of the relevant Children's Service Manager 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.

• The expectation that social workers will prepare and conduct ex parte EPO applications is abolished. From now on, the expectation is that a solicitor from Legal Services will conduct every application within office hours;
• Social workers considering the need for an EPO should as part of their preparation assemble a minimum of six copy bundles of minutes, reports and statements in support. (Three of those bundles are for the use of the Magistrates, one for the Local Authority solicitor, one for the parents and one to be retained by the social worker for his/her use);
• Out of hours applications will need to be dealt with differently if and when the Courts put new arrangements in place. One change being considered is ending the practice of applications to a single Magistrate at their home. This could only happen if Court premises became available for use out of hours;
• The preparatory aspects (legal advice and bundles) will be much more difficult for staff to comply with out of hours. For the present, it may not always be possible to meet the Court's expectations. Staff presenting out of hours applications need to be ready to explain the limitations of support and facilities.

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 relevant Children's Service Manager 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 Proceedings Court in order to apply for such leave.

Advice about any proposed EPO application should normally be available during office hours and should not be constrained by the availability of the Duty Solicitor.

A solicitor should normally attend Court and conduct each and every EPO application, whether on notice or ex parte. It must however be recognised that a solicitor may not always be available (even during office hours) to attend an EPO hearing at short notice. It is also recognised that, occasionally, an application may be so urgent that it cannot await a solicitor's arrival. This is especially likely to be true of applications in Courts situated at the opposite end of the county to the Legal Services base in West Bridgford.

Like most other Local Authorities, Nottinghamshire County Council do not operate an out of hours legal advice service. One consequence is that EPO applications will continue to be made by social work staff out of hours without the benefit of legal advice and/or representation. This is particularly likely to be true of staff in the Emergency Duty Team. If an EPO application is made without prior reference to Legal Services, it should be notified to the Legal Department at the earliest opportunity, regardless of the outcome at court.

It is stated above that social workers should not override legal advice that proper grounds for an EPO do not exist. If there is a difference of view between the solicitor and the social worker, or between social work staff, the decision whether or not to proceed should be taken by a named individual above Team Manager status. That decision should be carefully recorded and the person making it should be ready to explain and justify his/her decision in any future relevant proceedings, e.g. care proceedings brought in relation to the same child.

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 Justices' reasons.

As soon as practicable after the hearing the social worker should convene a Legal Gateway/Planning Meeting and seek the approval of the relevant Children's Service Manager to initiate Care Proceedings where necessary.

For further information see:

Care and Supervision Proceedings and the Public Law Outline Procedure and

Legal Gateway/Planning Meetings Procedure

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 Proceedings Court (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 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 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 rules 20, 21(5) and 21(6) of the Family Proceedings Courts (Children Act 1989) Rules1991. The FPC 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 mere fact that the FPC is under the obligations imposed by rules 20, 21(5) and 21(6) 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 ask: (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 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 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 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 FPC 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.