This article aims to provide an insight into Emergency Protection Orders (EPOs). An EPO is issued under section 44 of the Children Act 1989. It may be sought by a Local Authority, the police or the NSPCC in circumstances where a child requires immediate protection.
Under section 44 (1)(a) of the Children Act 1989, the court will grant an EPO only if there is reasonable cause to believe that the child is likely to suffer significant harm if—
(i)he is not removed to accommodation provided by or on behalf of the applicant; or (ii)he does not remain in the place in which he is then being accommodated;
In X Council v B and others (Emergency Protection Orders [2004] EWHC 2015 (Fam), Munby J highlighted the high threshold required for an EPO:
‘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’.
Issuing of an Emergency Protection Order
In practice, an EPO application usually occurs after a social worker has visited a property and has assessed that a child is at immediate risk of significant harm and thus needs to be removed from their property.
Under the second limb of section 44(1)(a) the courts will consider whether a child is likely to suffer significant harm if they ‘do not remain in the place in which they are accommodated’. Often in such circumstances, a baby is in the hospital, and the order prevents them from being removed from the hospital.
In some circumstances, under section 46(1) of the Children Act 1989, the police have the power to remove a child to ‘suitable accommodation’ or take reasonable steps ‘to ensure the child’s removal from a hospital or any other place they are accommodated is prevented’. They may only keep a child in police protection for up to 72 hours. The police may only utilise these powers if they have ‘reasonable cause to believe that the child would otherwise be likely to suffer significant harm.’ Following these interventions, Children’s Services will consider whether a court application for an EPO is necessary to protect the child.
Also, very commonly, children are accommodated under section 20 of the Children Act 1989. The issue arises if a parent withdraws their consent and wishes to collect their child from the Local Authority. In such circumstances, if the child is likely to suffer significant harm if they are returned to their parents, the Local Authority may apply for an EPO under section 44 of the Children Act 1989.
The court carefully considers the circumstances and evidence before granting an order. Factors such as the risk of harm towards a child and the potential impact on other children in the property are considered. Once granted, an EPO is in place for eight days. However, an application for an extension of a further seven days may be made, if the court deems the child remains at risk. The maximum duration of an EPO is fifteen days.
There is no automatic right of appeal against an EPO. If one wishes to challenge an EPO, they must utilise the court. They will examine whether the Local Authority’s or police’s decision to seek the order was lawful and justified. In limited circumstances, under section 45 (8) of the Children Act 1989, it is possible to apply to discharge an EPO within 72 hours. This is particularly relevant if a parent did not receive notice of the hearing or was unable to attend.
Some EPOs are granted without notice if the court considers it ‘essential to secure the child’s safety’ (Re D (unborn baby) [2009] EWHC 446 (Fam)). Given the intrusive nature of without notice applications, the court’s permission is required. The Local Authority must have evidence of the child facing risk of significant harm, and that informing the parents could jeopardise the child’s safety or welfare.
Visitation under an EPO
An EPO confers temporary parental responsibility to the Local Authority alongside the child’s parents. Parents retain parental responsibility for their child whilst the EPO is in place. Under section 44(13) of the Children Act 1989, the Local Authority shall ‘allow reasonable contact’ whilst the EPO is in place, with a ‘child’s parents, anyone who has parental responsibility for the child, any person the child lived with immediately before the making of the order or any person allowed to have contact by virtue of an order’. In most cases, they continue to have contact with their child. However, the order may impose restrictions to ensure the child’s safety. These can include supervised visits, limiting visiting times, or preventing certain individuals considered a risk from having contact with the child.
In situations where the risk to a child’s welfare may be too high if contact were facilitated, the court can suspend it until a subsequent hearing can take place. Throughout the process, the paramount concern is the protection and welfare of the child. Whilst the court aims to balance this against the rights of the parents, the child’s welfare takes priority.
Once an EPO is in place, the Local Authority will decide on the appropriate course of action. This may include:
- Applying to extend the EPO
- An application for an Interim Care Order
- Returning the child to their parents
Courts aim to ensure that these measures provide immediate protection while maintaining as much stability as possible for the child.
The team at Becket Chambers frequently take instructions in relation to Emergency Protection Orders. Should the reader have any questions, or is looking for representation, please do not hesitate to contact us at clerks@becket-chambers.co.uk
