This article will consider the protection of children in emergencies and the legal powers of the court which are invoked in such situations. The focus of this article will be on navigating the legislation underpinning emergency protection orders (“EPOs” thereafter) and the key considerations of advocates representing parents during emergency hearings. It is not intended to be an exhaustive guide to the overall area of law.
During pupillage and in junior practice, EPOs are a true test of advocacy under pressure. This article will signpost the basic issues that advocates need to be aware of when assimilating new facts quickly and applying the law to them at short notice.
What powers are available to protect children in emergencies?
When a child comes to the attention of the authorities and is considered to be at risk, the Children Act 1989 (“CA 1989”) has two main strands of protection available. The first is police protection, and the second is applying for an EPO. The exercise of police protection powers often feeds directly into EPO applications and so a brief overview is given here.
Police protection powers are governed by section 46 of the CA 1989. Section 46(1) sets out the legal test, which is:
(1) Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may—
(a) remove the child to suitable accommodation and keep him there; or
(b) take such steps as are reasonable to ensure that the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.
Section 46(3) and (4) then set out a list of duties that are conferred upon the police officer who takes the child into protection which include notifying the local authority and anyone holding parental responsibility (“PR”). Section 46(9)(b) and s46(10) further confers duties upon the designated officer in the matter, principally doing ‘all that is reasonable in the circumstances of the case to safeguard or promote the child’s welfare’ and permitting contact to relevant people per the list given in the legislation.
Police protection powers can be exercised without the need for a court order, and PR is not held by the police when exercising their powers per s46(9)(a). However, a child can only be kept in police protection for a maximum of 72 hours per s46(6); an EPO would then need to be applied for.
Who can apply for an EPO?
The designated officer responsible for the child being protected under police protection powers has the authority to apply for an EPO on behalf of the local authority per s46(7). Otherwise, section 44 (the section governing the making of EPOs) sets out at s44(2) that an ‘authorised’ person may apply as defined by section 31, which in reality under s31(9) means an officer of the NSPCC or the local authority, although the provision does extend to ‘any other person’ subject to them having suitable accommodation for the child.
The test and effect of EPOs
The legal test as to whether or not the court should make an EPO is set out at s44(1). S44(1)(a) is the main provision which states:
(1) Where any person (“the applicant”) applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—
(a) 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 most scenarios, the court must be persuaded that the child is likely to suffer significant harm if they are not removed to local authority accommodation immediately or if they are taken away from local authority accommodation where they currently are.
S44(1)(b) sets out further provisions in terms of the frustration of enquiries made by either the local authority or an authorised person which causes the applicant to believe access to the child must be achieved urgently.
The effect of an EPO is threefold per s44(4); it gives the applicant PR for the child per s44(4)(c), it authorises either the removal of the child to accommodation provided by the applicant or the prevention of removal from where the child currently is per s44(4)(b), and operates as a direction for the child to be produced by anyone in a position to comply with such a request per s44(4)(a). It should be noted that the exercise of PR by the local authority is somewhat restricted, and it can only be exercised to safeguard or promote the child’s welfare during the time the order is effective per s44(5).
How do emergency hearings take place?
EPO hearings can take place in person at court during sitting hours, by telephone during the same, or remotely out-of-hours in cases of extreme urgency. If the case is heard remotely out of hours, advocates frequently will have to wait some time following initial notification of the case before the time of the hearing is confirmed. This requires constant monitoring of communication channels as often the hearing time is released close to the actual hearing.
What can be said in defending an EPO application on behalf of a parent?
An EPO application is an emergency, short-notice provision where advocates representing parents will usually be sent the papers containing the relevant facts/local authority application at very short notice.
Common issues which to explore with parents defending an EPO application are suggested as follows:
What happens after an EPO is made?
An EPO is a temporary order. Duration is governed by section 45. It can last for only 8 days from the first hearing per s45(1). The order can be extended, but can only be extended once per s45(6) and only for a further period of 7 days (s45)(5).
The usual course of action is that on the making of an EPO, the local authority will then issue care proceedings and seek an interim care order (ICO) forthwith. This gives parents the chance to answer the local authority’s concerns with the benefit of proper time to take advice from their solicitor and consider the position, before making full arguments in an environment far less pressured than that of the EPO scenario.
Magdalena accepts instructions in relation to emergency protection orders including out-of-hours applications, in addition to all other care and family law matters. Please contact email@example.com if you would like to enquire further or to arrange a booking.