Care Proceedings: Removal of Children at the Interim Stage
19th January 2012
Amelioration of Risk: Emergency Protection Orders and Police
Protection Orders
Paper produced and presented by Smita Shah, Barrister at Garden Court Chambers
I
INTRODUCTION
1. The statutory provisions which govern the granting of Emergency Protection Orders
(EPO'S) and the exercise of Police Protection powers provide for a process which do not
strait jacket the aims of this part of the Children Act 1989, the aim being that the 'a quick
but temporary response to a child protection crisis, using limited court procedures, which
require less preparation that care proceedings and empower the applicant to remove the
children'1
2. Prior to the enactment of EPO's in the Children Act 1989, Place Of Safety Orders were
routinely used in the 1970's and 1980's, allowed for the Magistrates court to order the
temporary removal of children from their parents for up to 28 days. As a result of the
Cleveland scandal, when 300 such orders were obtained during 7 months of intense and
controversial child protection activity around allegations of sexual abuse, they were subject
to much criticism in the Cleveland Inquiry 1987 which followed. Therefore as Masson points
out, unsurprisingly, against this backdrop the creation of EPO's and Police Protection
Order's (PPO) were some of the most contentious parts of the Children Act 1989.
3.
This paper is called the amelioration of risk in recognition of the competing aims at the
heart of PPO's and EPO's and subsequent judicial guidance, to act and prevent harm in an
emergency while ensuring effective oversight to prevent injustice from an unwarranted
removal or action.
4. This paper is going to look at PPO's, EPO's, the interplay between both and provide a
reality check. Appendix A contains the relevant statutory provisions of the Children Act
1989 and Appendix B are the relevant judicial guidance extracted into a table format so that
1
At page 8, MASSON ET AL (2004) 'EPO Court orders for child protection crisis' Warwick University,
School of law: Warwick.
1
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they can be cut out and taken along to court when dealing with a EPO application, as per
McFarlane's J' (as he was then) guidance!
II
POLICE PROTECTION ORDERS2
5. s. 46 of the Children Act 1989 empowers a police officer to take a child into police
protection without the need for a court order. They may do so for up to 72 hours3.
6. Detailed guidance to the police can be found in The Duties and Powers of the Police under
the Children Act 1989, Home Office Circular 017/2008, while not legally binding Dyson LJ
quoted its predecessor with approval at paragraph 41 in Langley v Liverpool City Council
and Chief Constable of Merseyside Police [2005] EWCA Civ 1173; [2006] 1 FLR 342.
7. It is worth remembering the overall principles which govern the use of police protection, at
paragraph 15 of the HO circular, ' police protection is an emergency power and should only
be used when necessary, the principle being that wherever possible the decision to remove
a child/children from a parent or carer should be made by the court.'
8. There relevant test is whether the police officer has reasonable cause to believe that a child
would otherwise be likely to suffer significant harm if protective measures were not taken4.
Not the belief of an ordinary, reasonable constable5.
9. The police officer may remove the child to suitable accommodation and keep him there, or
take reasonable steps to ensure that he is not removed from any place that he is being
accommodated6.
10. The statutory scheme provides for two principal police officers and places a variety of
duties upon them. The first being the initiating officer, who exercised the protective power
and secondly, the designated officer who must at least be of the rank of an Inspector; is
2
See pages 66-68 in MCFARLANE A. AND REARDON M. [2010] 'Child Care and Adoption Law: A
nd
Practical Guide' 2 Edition, Family Law: Bristol for a short and very helpful guide which this section relies on.
3
s.46(6) CA1989
4
s.46(1) CA 1989
5
At paragraph 6.95, page 333 in pages 332 – 337 in BEDDINGFIELD, D. [1998] 'The Child in Need:
Children, the State and the Law' Jordan Family Law: UK
6
s.46(1)(a) and (b) CA 1989
2
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independent and has objective oversight once the child is placed within the police
protection7.
11. McFarlane and Reardon8 as provide the most common sense and user friendly summary of
these two different roles, which is reproduced below for ease of reference;
a) 'A police officer who takes a child into police protection must, as soon as is reasonably
practicable:
i.
inform the local authority where the child was found, and the local authority where
he ordinarily lives (if different), of the steps that have been taken and the location of
the child;
ii. Speak to the child (if possible) to let him know what steps have been taken and the
reasons for them, and to ascertain his wishes and feelings. The child may be given
a copy of leaflet, 'Why are the police protecting me' to help explain the process9.
iii. find suitable accommodation for the child, either in a refuge or in local authority
accommodation; and
iv. Inform a designated (Child Protection) officer10.'
10. Upon taking the child into police protection the initiating officer has to complete a police
protection form and inform their Child Abuse Investigation Unit11.
11. The role of the designated officer is to ensure ongoing oversight of the risk the child faces
and the need for the child to remain under police protection. This is a proactive duty, the
designated officer must make enquiries to ensure that the test for keeping the child in police
protection continues to be met, i.e. reasonable cause to believe that the child will be likely
to suffer significant harm if released,
if not the child must be released from police
protection. The designated officer must also consider whether he should apply on behalf of
the appropriate authority for an emergency protection order and allow the parents, and any
other appropriate person, such contact as they, the designated officer may feel is in the
7
At paragraph 8 of The Duties and Powers of the Police under the Children Act 1989, Home Office
Circular 017/2008
8
pages 66- 77 in MCFARLANE A. AND REARDON M. [2010] 'Child Care and Adoption Law: A
nd
Practical Guide' 2 Edition, Family Law: Bristol
9
See Appendix B of The Duties and Powers of the Police under the Children Act 1989, Home Office
Circular 017/2008
10
Ibid at page 67
11
At paragraphs 10 and 12 of The Duties and Powers of the Police under the Children Act 1989, Home
Office Circular 017/2008
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child's best interests12. Where a decision has been made to release a child, this must be
recorded13.
12. The PPO may be discharged if the child is accommodated by the local authority under s.20
Children Act 1989.
13. It is important to note that the police do not acquire parental responsibility through the
exercise of police protection.
14. It is also worth remembering that the exercise of police protection does not give a specific
power of entry under s.46 (1) of the Children Act 1989. s.17 (1) (c) of the Police and
Criminal Evidence Act 1984 provide for the conditions which enable the police to effect
entry where entry may be obstructed or denied. The power of a police officer to enter and
search promises without a warrant may only exercised in order to arrest a person for an
arrestable offence, arrest a person for breach of the peace, recapture a person unlawfully
at large and save life and limb or prevent serious damage to property.
15. The HO Circular also highlights that a police station is not suitable accommodation for a
child. A child under police protection should not be brought to a police station except in
exceptional circumstances, such as a lack of immediate local authority accommodation and
then only for a short period and on no account taken to the cell block area. Every effort
should be made to ensure that the child is physically safe, is comfortable, has access to
food and drink, has access to toilet and washroom facilities and is supervised at all time14.
III
EMERGENCY PROTECTION ORDERS
16. An EPO vests parental responsibility in the applicant for the child subject to the order15.
When in force, the order authorises the applicant to remove the child to any
accommodation provided by him or on his behalf, or authorises the prevention of the child's
removal from hospital or other place where he is accommodated before the order was
12
At page 68 in MCFARLANE A. AND REARDON M. [2010] MCFARLANE A. AND REARDON M.
nd
[2010] 'Child Care and Adoption Law: A Practical Guide' 2 Edition, Family Law: Bristol
13
At paragraph 39 The Duties and Powers of the Police under the Children Act 1989, Home Office
Circular 017/2008
14
At paragraphs 28 and 29 of The Duties and Powers of the Police under the Children Act 1989, Home
Office Circular 017/2008
15
s.44.(4)(c) Children Act 1989
4
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made and operates as a direction to any person who is in a position to so, to comply with
any request to produce the child to the applicant16.
17. The child's welfare is the paramount consideration when deciding whether an order should
be made, although the statutory check list need not apply17.
18. The court must be mindful of the 'no order principle' and must not make an order unless
doing to would be better than making no order at all18. It must either make the EPO or
refuse to make it. The family courts lack jurisdiction to make EPO's or orders under the
inherent jurisdiction for the unborn child. There is however jurisdiction for declaratory relief
as to the lawfulness or otherwise of proposed emergency action with respect to a child at
the very moment of birth, such a course is not only draconian but a highly exceptional
course of conduct. See Re D (Unborn Baby) [2009] EWHC 446 (Fam); [2009] 2 FLR 313 as
to the lawfulness of withholding the pre-birth plan to the Mother where the experts deemed
that if she were informed of the plan for removal she would cause significant harm to
herself, the unborn baby and possibly others.
19. An application for an EPO does not fall within the definition of 'family proceedings', and
therefore unlike in other such proceedings the court cannot make any other orders19.
20. The EPO can last up to 8 days20 with one extension for a further period of 7 days21. s. 45
(2) Children Act 1989 sets out the provisions for public holidays and weekends, in which
case the order will expire on the next working day at noon. If the child was taken into police
protection using a PPO and the designated officer decides to apply for an EPO, with or
without informing the local authority, then the EPO runs from the date the child was
received into police protection.
21. The Emergency Protection Order (Transfer of Responsibilities) Regulations 1991/1414
came into force on 14/10/91 enable a local authority to take over an EPO made to another
local authority or by a designated officer after which they are deemed to have made the
application. It also sets out the criteria for transfer of responsibility between local authorities
for an EPO, for example, local authority, find the child within their area, they apply and
obtain the EPO, the local authority who may already be aware of the child and working with
16
s.44 (4) (a) and (b) Children Act 1989
17
s. 1(1) Children Act 1989 and s.1(4) Children Act 1989.
18
s.1 95) Children Act 1989
19
s.8(4) Children Act 1989
20
s. 45(1) Children Act 1989
21
s.45(5) Children Act 1989
5
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the family can then take over the EPO, the process is set out the process in rule 3 of the
regulation, which include elements of the welfare checklist, that the local authority seeking
to take over the EPO must notify the court, applicants who made the order and those who
received notice.
22. s.44 (10) Children Act 1989 states that when it appears to the applicant that it is safe to
return the child, they must do so immediately, notwithstanding if the order has yet to expire.
It is evident from this provision that there must be continued oversight, evaluation of risk
and processes in place for this.
23. The application is made at the FPC, unless there are ongoing proceedings concerning the
child to be subject to the order which are in the High Court or County Court and arise out of
the same circumstances.
24. The applicant may be, an 'authorised officer' of the local authority, on behalf of the local
authority, usually a senior social worker, an 'authorised person' meaning an officer of the
NSPCC or any person so authorised by the Secretary of State, a 'designated' police officer
and any other person. In reality they are usually the police or social workers22.
The
decision to seek an EPO may be made after a multi-agency strategy discussion between
the local authority, police, schools and healthcare workers.
25. Applications should normally be made on from C1 with Supplement C11. The strict rules of
evidence do not apply, the court can take account of any oral evidence, or statement
contained in any report made to the court, in the course of or in connection with the
hearing, if it consider it to be relevant to the application23.
26. The application can be made on notice, of one day. An application may only be withdrawn
with leave of the court.
27. Applicants to an EPO are in two categories, those who are automatic and entitled to see
the papers and those who are only required to have notice but not the application itself.
Automatic respondents are every person with PR or who had PR prior to the making of a
care order and the child. Those who can be given notice are every person who is a parent,
local authority providing accommodation for the child, any person with whom the child is
living with at the time for example foster carers and where the child is alleged to be staying
in a refuge.
Without notice applications
22
s.44 (1) and (2) Children Act 1989
23
s.45(7) Children Act 1989.
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26. Applications can be made without notice; in the FPC leave is required to do so, usually at a
request to the Justices Clerk, it is open to the court to refuse to make an application without
notice and to list it for an on notice hearing.
27. They should only be made in wholly exceptional circumstances justified by genuine
emergency or the need for extreme urgency or where there are compelling reasons for
believing the child's welfare would be compromised by giving notice.
28. Two guideline cases to consider, Munby J's 14 points, which can be found at Appendix B,
in X Council v B and others (Emergency Protection Orders) [2004] EWHC 2015 (Fam);
[2005] 1 FLR 341. What is noteworthy and often overlooked in this case is that there was
no threshold agreement or findings. Once the children were removed under EPO's the
proceedings took a life of their own and at their conclusion with the children returned home,
the parties agree to a preamble which set out that the Local Authority felt threshold had
been met, the parents did not and the local authority withdrew its application for care
orders. At paragraph 34 Munby J quotes P.C and S v United Kingdom (2002) 35 EHRR 31,
2 FLR 631, he states, ' An EPO, summarily removing a child from his parents, is a terrible
and drastic remedy. The European Court of Human Rights has rightly stressed [in the
above case] that such as a remedy is 'draconian' and 'extremely harsh' measure requiring
'exceptional justification' and 'extraordinarily compelling reasons'. However that the
emergency removal of children is in principle entirely compatible with the Convention and
moreover there may be cases where without notice applications are justified. [see
paragraph 35].
29. Munby J in the course of judgment highlights a lack of accountability mechanisms such as
no right of appeal, bars on discharge applications, and difficulties with judicial review that
make it incumbent upon the FPC and the local authority to get it right at application. [see
paragraph 41].
30. There is a continuous duty to asses the impact of the proposed care measure/s and the
alternatives upon the local authority, once removal has been affected, the scrutiny is an
ongoing process and as soon as the risk or danger has dissipated, the child must be
returned to their family. That removal entails a test of 'necessity' and 'imminent danger' as
per Johansen v Norway (1996) 23 EHRR 33; further that Article 8 imposes positive
obligations on the local authority to respect the right to family life as per Hokkanen v
Finland (1994) 19 EHRR 139. It is within this legal framework that Munby J then places the
statutory scheme for EPO’s under investigation and enumerates his 14 points (which are
set out in Appendix B).
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31. In this case the reasons for removal were to obtain medical examinations which the local
authority feared the parents through their interference with the children would prejudice.
32. Munby J makes a point of drawing attention to the experience of removal upon the children
at paragraph 92, where one child D, in a statement he prepared indicates he was told very
little of what was happening, why, he had thought something had happened to his parents,
only being reunited with his younger siblings in foster care and how distressing it was for
them. He describes it as being 'horrible and frightening'.
33. The facts are starker still in RE X (Emergency Protection Orders) [2006] EWHC 520 (Fam);
[2006] 2 FLR 701 which give us the McFarlane guidelines. Here a mother sought
assistance for behavioural problems for her 9 years old. Matters progressed to a the child's
name being entered into the Child Protection Register and at a case conference review
meeting it was agreed that the local authority were to hold a legal planning meeting to
consider legal proceedings, assessments of the mother and child were planned. There was
no suggestion of a plan to seek removal. Within 2 hours of the meeting the social work
team managed gave evidence before a lay bench and obtained a without notice EPO for
removal. McFarlane J, being proactive investigated how such an order came into existence.
The social services concerns were possible sexual abuse, unhealthy beliefs within the
family of spirits, symptoms of fabricated illness and father's history of mental illness
amongst others. After a year in proceedings and numerous assessments the local authority
abandoned their reliance upon sexual abuse and fabricated illness.
34. McFarlane J noted that the team manager in evidence to him said, 'I was in a position of
having to say that X was 100% safe in that household and I was not in a position to say
that', he further notes that the team managed was expressly advised against seeking an
EPO, nevertheless she went to court and sought one. [at paragraph 36 and 38]. In his
judgment McFarlane J endorse Munby J's guidelines; these can be found in full at
Appendix B of this paper.
35. He goes on to say that the EPO commenced the care proceedings with lasted 14 months.
The parents faced multiple allegations of sexual abuse, fabricated illness and emotional
abuse with they were unable to forensically challenge the grounds for continued separation
under interim care orders. At paragraph 100 he sets out good practice guidance. This can
be found in Appendix B of this paper.
Grounds for an EPO
36. What are the grounds for an EPO? The 'common ground' which all applicants can rely on;
where the applicant wishes to remove the child from his present accommodation because
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there is reasonable cause to believe that the child is likely to suffer significant harm if he is
not removed to accommodation provided for or by him. If the local authority wishes to
ensure that the child remains at his current accommodation, they will need to satisfy the
court that if the child should leave there is reasonable cause to believe he will suffer
significant harm24. The removal or prevention of removal may only be in order to safeguard
the child's welfare25.
37. It is for the court to determine what a reasonable cause is and whether the evidence it has
before bears this out. The concern is for future harm, not harm suffered at the time or
historical harm, while evidence of this nature may be relevant.
38. Where the local authority is the applicant they can rely upon the common ground above, as
well as satisfy the court of 'frustrated access' where inquiries are being made pursuant to
their duties under s.47 (1) (a) Children Act 1989 to enable them to make decisions about
safeguarding action
26
and that those inquiries are being frustrated by access to the child
being unreasonably withheld and that they have reasonable cause to believe that access is
required as a matter of urgency27.
39. An application by an authorised person can be for similar ground as to that of the local
authority and in practice the NSPCC are considered authorised persons. While they can
initiate EPO’s they cannot then commence care proceedings nor force a local authority who
does not wish to do so.
40. A person who intentionally obstructs the applicant exercising his power to remove the child
or prevent his removal shall be guilty of an offence28 and liable to summary conviction to a
fine not exceeding level 3 on the standard scale which is up to £1,00029.
41. Additional directions which can be included are as follows:
a) to authorise the applicant to enter specific premises and search for the child30.
24
s.44(1)(a)(i) Children Act 1989
25
s.44(1)(a)(ii) Children Act 1989.
26
see s.44(1)(b)(i) Children Act 1989
27
s.44(1)(b)(ii) Children Act 1989
28
s.44(15) Children Act 1989
29
s.44(16) Children Act 1989 and Criminal Justice Act 1982 s 37 as amended by the Criminal Justice
Act 1991 s.17(1).
30
s.48(3) Children Act 1989
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b) To authorise the applicant to search for another child on the premises and if another
child is found, to remove the child provided the common ground for the making of an
EPO exists31.
c) To require any other person to disclose information about the whereabouts of the
child32.
d) To issue a warrant to authorise a police constable to assist the applicant and for the
officer to be accompanied by a doctor, nurse or health visitor33.
e) To direct that a doctor, nurse or health visitor accompany the applicant when giving
effect to the EPO34.
f)
Directions with respect to medical or psychiatric examination of the child35. However it
must be noted that a Gillick competent child may refuse to submit to such an
examination.
g) Directions with respect to contact with any named persons36. The local authority must
allow reasonable contact with the child's parent, anyone with parental responsibility and
with anyone to whom orders exist under s.8 and s.34 Children Act 1989. Detailed care
plans are not required at this stage and therefore contact will need to clarified at court, if
no contact or limited contact is proposed a direction should be sought to this affect
h) An exclusion requirement, requiring a named person to leave the home where the child
is living37. The court can make directions to exclude someone if they believe that to do
so that the child living there would cease to suffer or likely to suffer significant harm,
another person in the dwelling has given their permission for the exclusion and is able
to look after the child38. Undertakings can be offered and if the child is subsequently
removed the local authority have to notify the person excluded if the removal is longer
than 24 hours, at which point the exclusion not longer applies. A power of arrest can be
attached the usual caveats and safeguards apply to these.
31
s.48(4) and (5) Children Act 1989
32
s.48(1) Children Act 1989
33
s.48(9) and (11) Children Act 1989.
34
s.45(12) Children Act 1989
35
s. 44(6)(b) Children Act 1989
36
s.44(6)(a) Children Act 1989
37
s.44A and S44B Children Act 1989.
38
s.44A(1) Children Act 1989
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Remedies
28. Remedies are extremely limited.
29. Only the child, parent/s of the child, any person with parental responsibility and any person
with whom the child was living with can apply to discharge the EPO39. If a person has been
given notice and does not attend, they lose the right to apply to discharge the EPO40. This
may include where their lawyers attend and simply take a note.
30. There is no right of appeal against the making of an order, refusal to make an order,
extension or refusal to extend an order, directions made or refused and decision to
adjourn41.
31. Avenues for judicial review are precarious and fraught with difficulties. Two case illustrate
the point; in Re M(CAre proceedings: Judicial Review)[2003] EWHC 850 (Admin): [2003] 2
FLR 171, Munby J held that JR was an inappropriate mechanism to challenge what could
normally be challenged in the course of care proceedings (and held that habeas corpus
was not available as the act of removal and placing into care did not amount to detention,
save for secure accommodation orders) and contrast to the now (in)famous R (G) v
Nottingham City Council [2008] EWHC 152 (Admin); [2008] 1 FLR 1660 in which the
removal by professionals without the 18 year old mother's permission or court orders was
affected. Munby J, deeply unimpressed, ' no baby, no child, can be removed simply 'as a
result of a decision taken by officials in some room'. [at paragraph 18]. In pre-existing
judicial review proceedings for the mother pathway plans, her lawyers are able to take
advantage of the fact that the court is already seized of the matter to seek urgent
assistance. He grants declaratory relief and makes a carefully worded order which does
not seek to interfere with the lawful exercise of police powers under s.46 where necessary
nor the local authority from applying for court orders, rather to affect the reunification,
immediately of mother and child.[at paragraph 30.].
32. Both Munby J and McFarlane note the lack of avenues of relief or appeal as does Davies in
her article in 2007 on EPO's, she recommends that statute or rules be amended to reflect
that EPO applications are to make explicit reference to the restriction that such applications
are restricted cases of real and imminent danger, make provisions to transfer EPO's to
higher courts, introduce appeal provisions, remove unfair restrictions on discharge
39
s.45(11) and (8) Children Act 1989
40
S45(11) Children Act 1989.
41
s.45(11) Children Act 1989
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applications, reduce the time for service and ensure service of a transcript of proceedings is
served on the parents regardless of notice42. As will be discussed further on, and remains
an ongoing theme in this paper, the tension between competing aims of safeguarding child
welfare and the real risk of injustice, remain palpable, whether in the court or on the ground
where such decisions need to be made.
IV
THE THIS BLUE LINE BETWEEN EPO'S AND PPO'S
17. Can the police exercise their powers under s46 Children Act 1989 if there is an EPO
already in place? The simply answer is yes, although the route to the answer was long and
troublesome in Langley v Liverpool City Council and Chief Constable of Merseyside Police
[2005] EWCA Civ 1173; [2006] 1 FLR 342 where the Court of Appeal through the judgment
of Dyson LJ.
18. The facts and how the court delivered the definitive guidance on the interplay between s 46
and s.44 Children Act 1989 are not exceptional, however the consequences for the
children, their parents and ultimately the Local Authority and Police force concerned were
serious, with a finding that in the absence of compelling reasons, if the police remove a
child in reliance upon s.46 Children Act 1989 when they know an EPO is in force may be in
breach of article 8 of the ECHR.
The Facts
19. The family in question were known to the Local Authority for some time, the Father was
registered blind, suffering from Usher's Syndrome which gave him tunnel vision and night
blindness; and all members of the family save for child C (then the youngest child) were
profoundly deaf. At the material time all three children of the family, J (then aged 9 years), J
(the aged 5 years) and C (then aged almost 4 years) were on the Child Protection Register.
One particular concern, amongst other, was that the Father persisted in driving a car with
the children as passengers despite not having a valid driving license and giving assurances
to the professionals that he would not do so. The social services were on the cusp of
initiating legal proceedings.
20. In late September 2001 the Father, accompanied by the Mother and three children drove a
Ranger Rover from Liverpool to Derby, with a view to dropping the two eldest children off to
42
At page 732 in DAVIS 'Protecting Children in an emergency – the getting the balance right' Fam.
Law(2007) Vol 37 August, pages 727 – 732
1
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the Royal School for the Deaf for the purposes of a 4 day assessment. The family support
worker contacted the social worker and informed her that the family had gone to Derby and
that their car was missing, the social worker contacted the school who confirmed that the
Father had been seen driving into the school, the Father, Mother and C were dropping off
the two eldest children and then planning to drive back to Liverpool. They would then return
a few days later to fetch the two eldest children. The social worker contacted legal services
and instructed them to apply for a without notice EPO. Both the social worker and team
managed attended court, gave evidence in support and the EPO was duly granted
authorising them to remove the children to Local Authority accommodation.
21. The social worker then attempted to execute the EPO and went to the family home, no one
was there. They were out and about. Having failed to execute the EPO within normal
working hours, the social worker contacted the EDT at about 6pm and requested that they
arrange for foster carers to be alerted; she then contacted the police and told them of her
fears. She gave them a copy of the EPO. At 7.20pm three police officers went to the family
home. The family co-operated and were shown the EPO. The police officer then called EDT
and asked them how they would like to proceed; EDT confirmed that they wanted C taken
into care. The police officer the proceeded to remove C into care. The two older children
were removed from their school by social services. The EPO was further extended for 7
days with the consent of the parents and a further Interim Care Order's made afterwards.
The Outcome
22. The parents brought a damages claim for unlawful removal of their children, HHJ Morgan at
Liverpool County Court found that the Local Authority had acted unlawfully in relation to the
removal, and were liable for false imprisonment, assault and breach of their Article 8 ECHR
rights. He found that the police had acted unlawfully in relation to the removal of C and
similarly held them liable. He dismissed the claims that the Police had violated their Article
8 rights in relation to C and negligence in office. The Local Authority and Police appealed
and the family appealed in relation to the findings regarding C.
23. Dyson LJ found that the Local authority and police were liable for breach of Article 8 for the
removal of Child C. He found that the Local Authority were not liable for the removal of J
and R as the EPO was justified in this case and that it was appropriate to execute it to
remove C, it was the manner of execution which caused the breach of Article 8 ECHR.
The key points in the judgement
24. Dyson LJ's judgment can be distilled as follows:
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a) the Children Act 1989 contains no provision which expressly prohibits the police from
invoking s.46 where an EPO is in force. [at paragraph 25] Nor does s.46 (7) prevent the
use of police protection powers, it simply give the designated officer the discretion to
apply for an EPO where one is not in force. Nor does the s. 47 Local Authority duty to
investigate prevent the use of PPO. [at paragraph 26 and 27].
b) Dyson LJ givens two examples where the use of a PPO while an EPO is in force may
be entirely reasonable and necessary to prevent harm to a child, firstly where the police
officer comes across a child who he has reasonable cause to believe is likely to suffer
significant harm if not removed and is in ignorance of the existence of an EPO, and
secondly where the EPO is made to one Local Authority , for example Liverpool and the
police officer comes across the child in Cornwall, the officer is aware of the EPO and he
considers the child in real danger and in urgent need to accommodation, that he should
not act while he tried to co-ordinate and contact social services to execute the EPO
would be 'unfortunate'. [see paragraph 30 and 31].
c) Dyson reiterates the aims of these provisions, to 'further the manifest object of securing
the protection of children who are at risk of significant harm'. [at paragraph 32].
d) He goes on to highlight some of the differences, an EPO is a court order, has judicial
oversight; a PPO does not. The court can give directions with respect to contact,
assessments, and examinations, the police do not have this power. The EPO grants the
applicant PR, the PPO does not. The PPO may only be 72 hours, the EPO for 8 days
with one extension for up to 7 days.
e) He cites with approval the Home Office Circular in force then.
f)
'Where a police officer know that an EPO is in force, he should not exercise the power
of removing a child under s.46, unless there are compelling reasons to do so.' [at
paragraph 36
g) 'i) removal of a child should usually be affected pursuant to an EPO, and ii) section 4
should be invoked only where it is not practicable to execute an EPO. In deciding
whether it is practicable to execute an EPO, the police must always have regard to the
paramount need to protect children from significant harm'. [at paragraph 40]
25. Dyson is critical of the advice EDT gave to the police officer at the scene and that they
should have told him to await the arrival of social workers. Surely a less intrusive and
draconian measure could have been sought to safeguard the children? Dyson, finds that
the EPO was appropriately sought in the circumstances and having obtained one the Local
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Authority were entitled to execute it, it was ultimately the manner of execution which was
unlawful. The lesson to take away is seek all appropriate directions at the time of obtaining
an order, including where necessary, proportionate and justified, a warrant for the police.
26. This judgment is further supported by the statutory guidance to the police in the latest
Home Office Circular at paragraph 15 which has been quoted above in the section
regarding PPO and paragraph 16 which states, ' All Local Authorities should have in place
local arrangements (through their local Chief Executive and Clerks to the Justices) whereby
out of hours applications for Emergency Protection Orders . . . may be made speedily and
without n excess of bureaucracy. Police protection powers should only be used when this is
not possible.43'
27. To Local Authority's in Working Together to Safeguard Children: A guide to Inter-Agency
working to safeguard and promote the welfare of children (March 2010, Dept of Education)
at paragraph 5.53, ' Police powers should only be used in exceptional circumstances where
there is insufficient time to seek an EPO for the reasons relating to the immediate safety of
a child'.
28. In 2010 A v East Sussex County Council and Chief Constable of Sussex Police [2010]
EWCA Civ. 743 explored this further, again this was a case where a claim for damages
against an alleged wrongful removal was made against the Local Authority and Police. A
young Mother of 22 and troubled background brought her two month old baby to the
hospital on 22nd December 2008 to report that it had stopped breathing. As the hospital
prepared to discharge the mother, they grew concerned that she reported two further such
incidences, not observed by others. The consultant notified Social services, on 29th
December the baby was removed using s.46 Children Act 1989 PPO. At an inter-partes
hearing on 31st December the mother agreed to go into a mother and baby unit. The
assessment was positive, mother returned home with the baby and proceedings were
discontinued. The child had been ready for discharge on 24th December, matters came to a
head when the Consultant grew concerned and the mother wanted to take her baby home.
29. Hedley J outlines the choices were voluntary accommodation, a PPO or an EPO. He cites
both the Munby J and McFarlane J guidelines with approval and feels the essential
question was this, the strength of the case for an EPO (or use of any emergency power)
would greatly depend upon the evaluation of risk of harm as made by the medical
consultant.[at paragraph 12]. The strategy meeting was told that the mother was being
43
The Duties and Powers of the Police under the Children Act 1989, Home Office Circular 017/2008
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'unco-operative', this amounted to her wish to take her baby home with only family support
or supervision, and she had 'kicked off' and made threat to take her baby.
30. Hedley J found that the circuit judge dealing with the case assessed the evidence based on
what the decision-makers knew (and should have reasonably known) at the time that they
had to make decisions [at paragraph 15]. Hedley J further found that there was no
suggestion that the consultant had acted in anything other than a responsible and
competent manner. While he reiterates the desirability of using s 44 rather than s.46,
promoting the least interventionist path, working with parents in partnership, keeping
everyone appraised of developments and plans, removal to a known person rather than a
stranger he does make the following point, ' sadly the experiences of the appellant simply
illustrate the truth that viable child protection procedures in any society will sometimes inflict
what turns out to have been unnecessary distress on families. That does not make them or
the exercise of them thereby unlawful'. [at paragraph 21].
31. Where does this leave us? Time for a reality check.
V
REALITY CHECK
32. So called because by now it will be clear to those working in child protection, be they social
worker, police or lawyers that the statutory provisions and the learned judgements albeit,
few and far between from our higher courts do not marry up with the daily grind of such
applications in the magistrates court and exercise of such powers by the police. Two
academic studies have attempted to examine this disparity between the law and
implementation on the ground.
33. The first piece of research which looked at the use of EPO’s was lead by Professor Judith
Masson entitled 'EPO Court orders for child protection crisis'(2004) University of Warwick.
The study methodology included telephone interviews with magistrates' legal advisers in
magistrate courts committee are in England and a detailed analysis of all applications for
EPO's during 12 months in three magistrates’ courts committee areas, covering 6 local
Authorities44. Further information came from interviews with magistrates, court clerks, local
authority lawyers, social worker, children's guardian and solicitors in private practice. The
asked how widespread was the practice criticised of in X Council by Munby J and whether
matters would be improved if the guidance in X Council were followed.
44
At page 882 in MASSON 'Emergency Protection, good practice and human rights' Fam. Law (2004)
No. 34 December, pages 882-887. The full study is MASSON ET AL (2004) 'EPO Court orders for child
protection crisis' Warwick University, School of law: Warwick.
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34. The second piece of research was again by Professor Judith Masson and funded in part by
the NSPCC and Nuffield Foundation called ‘Protecting Powers: Emergency Intervention
for Children's protection (2007)45. This study looked at the dual use of PPO's and EPO's
between 1998 and 2004.
35. The first study found that EPO's were granted without notice where there was a risk that the
parent could disappear of harm the child (19 out of 86 cases), in only 3 cases did the
children remain at home with the parents pending an on notice hearing the next day. More
commonly the child's immediate protection was secured through a PPO or the EPO was
heard on the day of the application with clerk agreeing to abridge notice (in 13 out of 86
cases). Children's Guardians were appointed in 34 cases in the study and children were
far less likely to be represented by a solicitor or children's guardian if the application was
without notice. The courts practice of listing a review hearing was uncommon. Additionally
none of the parents whose children were subject to a without notice hearing requested one
in (25 out of 86 cases). The reasons the study found were unclear, but the solicitors who
represented parents were generally very pessimistic about the chances of challenging an
EPO successfully46. For many advising parents, the key is often waiting to see what the
strength of the case is against them. If the EPO leads to an interim care order (ICO), it
become significantly harder to challenge the emerging status quo and what is now deemed
a neutral holding position.
36. For those representing children, their concern will be minimising the number of placement
moves and preserving stability for the child/ren in question.
37. For the local authority, it may be reliant and awaiting evidence from other statutory
agencies such as schools, healthcare professionals and the police.
38. The study found in two cases the court granted a short EPO with the onus on the Local
Authority to ask for an extension rather than placing the onus on parents to challenge a
without notice application, however two thirds of the without notice EPO's were granted for
the full 8 days.
45
MASSON ' Emergency Protection: the impact of court control on safeguarding children' Fam. Law
(2010) No. 40 October, pages 1088-1093, the full study can be found at MASSON et all (2007) 'Protecting
Powers: Emergency Intervention for Children's protection' Wiley: Chichester.
http://www.nspcc.org.uk/Inform/research/findings/researchfindings_wda48259.html#2007
46
At page 884-5, in MASSON 'Emergency Protection, good practice and human rights' Fam. Law
(2004) No. 34 December, pages 882-887.
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39. As Masson rightly points out, While Munby J in X Council stated that the evidential burden
on the Local Authority is heavy; the reality is that the evidence will most likely be oral and
reliant on hearsay evidence. Keeping an accurate note of proceedings therefore is vital.
40. In 77out of 88 cases the EPO led to further care proceedings.
41. Masson concludes her article on the research in the Family Law Journal on a pragmatic
note, while the Children Act she argues tried to balance between intervention and family
privacy; it leaves the balance in the hands of the family proceedings court without an
avenue of appeal. She is generous when she says that the common sense approach of the
magistrates inevitably leads to a different approach than in the higher courts. In a system,
increasingly now with limited resources and greater demands, an emphasis on authorities
and close analysis of evidence are unlikely to produce better quality decision making in
urgent cases. She declines to state what would but it is submitted that her conclusions in
2004 would withstand scrutiny today.
42. Her second study over a span of 6 years looks at the collaboration between local
authorities and the police, the dependence by the police on local authorities to place
children who could not be returned home after being taken into police protection and the
local authorities need for police support to protect children in the most anxiety-provoking
situations, for examples, with volatile parents who were physically threatening47.
43. The study found that it was not usually possible to arrange hearings after the courts had
closed, legal advisers felt it was generally unacceptable for magistrates to hear EPO
applications without the presence of legal advisers, therefore where social workers needed
to remove children out of court hours and holding a hearing was not practicable, they were
assisted by police protection powers. In the study, three court areas, labelled J,M and E
sowed a significant statistical relationship between the use of PPO's and the courts
willingness to hear cases without full notice to parents. In area M, where the court was
willing to hear EPO applications without notice, there was considerably less recourse to
PPO's. In Area J, where without notice hearings were very rare, more than half of the cases
where the children entered into care in an emergency involved the use of PPO. Where one
local authority became so concerned about access to court, they arranged a meeting
47
MASSON et all (2007) 'Protecting Powers: Emergency Intervention for Children's protection' Wiley:
Chichester.
http://www.nspcc.org.uk/Inform/research/findings/researchfindings_wda48259.html#2007
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between the police, senior management at social services and the court manager, which
resulted in a change of court practice.
44. After both the Munby J and McFarlane J decisions where both judges were highly critical of
practices for without notice applications and their compliance with ECHR case law, such
out of hours access became problematical as courts became less willing to hear without
notice applications. Masson is in turn critical of this, higher judicial intervention has resulted
in already over stretched courts being clogged with EPO applications, and a greater
recourse to PPO's, bourn out by Department of Education data which shows an increase
since 2006 of children entering the case system through the use of PPO's. In 2009 82% of
children entered the care system through the use of PPO's. She points out the introduction
of the PLO depressed the use of emergency powers, since then the increased pressure on
the courts and demands of the PLO mean that unless parents agree to voluntary
accommodation, PPO's will continued to be relied on with greater frequency.
45. Does this matter? Masson argues that it does, this change in balance she feels has an
impact upon parents rights, children's rights and family integrity not to mention that it
undermines professional empathy and destroys children's trusts in the professionals trained
to protect them. How are children to be protected from the risk of harm with the current
competing demands on the police, social services, and the legal profession to ensure
accountability and justice? If protective orders are only going to be used in extreme cases,
it means leaving children at risk for longer and waiting for the harm to escalate, however
cursory oversight, rushed applications without evidence that stands up to scrutiny, in worst
case scenario leads to the very facts that caused both Munby J and McFarlane J to issue
their respective guidelines..
VI
CONCLUSION
44. This paper has attempted to set out the law, procedure and real impact of both of these
where PPO's and EPO’s are concerned. It has probably raised more questions than
answered and generated much frustration and debate in equal measure.
45. This paper has tried to demonstrate the disparity between the judicial guidance offered by
both Munby J and McFarlane J, by which we as legal professionals and the courts are
bound and the reality check of professional practice on the ground. It has touched upon
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how, certainly in England and Wales, child protection policy and guidance remains
reactionary, to sensational cases that cause public outrage.
46. At the heart of emergency protective measures is the unquantifiable, what level of risk is
acceptable? For local authorities it is about ameliorating risk, how can the risk faced be
improved upon, minimised and contained, the easiest way to do so is removal to care
outside of the family where the local authority retain overall control. Given the criticisms
following the death of Victoria Climbe, this is understandable.
47. The reality for children and their families is that an application for an EPO is likely to be for
removal and this will undoubtedly set the tone and chain of events for subsequent care
proceedings to follow. Lawyers for parents will be cautious in rushing to challenge ICO's,
particularly in made following EPO's, and particularly at the early evidence gathering and
pre-assessment stage.
48. This perhaps is the key, that EPO's cannot be challenged, even if obtained on inaccurate,
misleading and suspect evidence, this then forms the basis for an ICO. A challenge at this
stage encounters arguments that a move likely to disrupt the child and cause more distress
if subsequently removed again and that the child may be returned to a potentially risky
environment.
49. The original criteria for urgent removal are no longer relevant as the case is about ongoing
removal with the ICO being a neutral holding position. This shift in emphasis makes it
impossible to overturn the previous EPO improperly obtained or unlawfully executed unless
before a proactive judge with an inquiring mind; which is, it is submitted unlikely to be the
lay bench that granted the original EPO.
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BIBLIOGRAPHY
Legislation and Regulations
Children Act 1989, s. 44, 44A, 44B, 45, 46 and 48.
Emergency Protection Order (Transfer of Responsibilities) Regulations 1991/1414, came into force
on 14/10/91, http://www.legislation.gov.uk/uksi/1991/1414/contents/made
Statutory Guidance
The Children Act 1989 Guidance and Regulation, Vol. 1, Court Orders ,
https://www.education.gov.uk/publications/standard/publicationDetail/Page1/DCSF-105002008
Working Together to Safeguard Children: A Guide to Inter-Agency working to safeguard and
promote the welfare of children. (March 2010, Dept Children, School and Families, HM
Government),
https://www.education.gov.uk/publications/standard/publicationdetail/page1/DCSF-003052010
The Duties and Powers of the Police under the Children Act 1989, Home Office Circular 017/2008,
http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-officecirculars/circulars-2008/017-2008/
Cases
A v East Sussex County Council and Chief Constable of Sussex Police [2010] EWCA Civ. 743
Re D (Unborn Baby) [2009] EWHC 446 (Fam); [2009] 2 FLR 313
R (G) v Nottingham City Council [2008] EWHC 152 (Admin); [2008] 1 FLR 1660
Langley v Liverpool City Council and Chief Constable of Merseyside Police [2005] EWCA Civ
1173; [2006] 1 FLR 342
RE X (Emergency Protection Orders) [2006] EWHC 520 (Fam); [2006] 2 FLR 701
X Council v B and others (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005] 1 FLR
341
Books and Articles
pages 66- 77 in MCFARLANE A. AND REARDON M. [2010] 'Child Care and Adoption Law: A
Practical Guide' 2nd Edition, Family Law: Bristol
pages 342-358 in WHITE, CARR AND LOWE [2008] 'The Children Act in Practice' 4th Edition,
LexisNexis:London
Section 2 Protection Provisions in HERSHMAN AND MCFARLANE 'Children Law and Practice'
Jordans Family Law
pages 332 – 337 in BEDDINGFIELD, D. [1998] 'The Child in Need: Children, the State and the
Law' Jordan Family Law: UK
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pages 621 – 632 in PREST AND WILDBLOOD QC, [2008] 'Family Law Case Library – Children'
Jordans Family Law: UK
GARTLAND 'Unnecessary Distress: Legal Update Specialist' N.L.J (2010) Vol.160 No.7427, pages
1032-33.
MASSON ' Emergency Protection: the impact of court control on safeguarding children' Fam. Law
(2010) No. 40 October, pages 1088-1093
DAVIS 'Protecting Children in an emergency – the getting the balance right' Fam. Law(2007) Vol
37 August, pages 727 – 732
MASSON 'Emergency Protection, good practice and human rights' Fam. Law (2004) No. 34
December, pages 882-887.
Academic Study
MASSON ET AL (2004) 'EPO Court orders for child protection crisis' Warwick University, School of
law: Warwick.
http://www.nspcc.org.uk/inform/research/findings/researchfindings_wda48259.html
MASSON et all (2007) 'Protecting Powers: Emergency Intervention for Children's protection' Wiley:
Chichester.
http://www.nspcc.org.uk/Inform/research/findings/researchfindings_wda48259.html#2007
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APPENDIX A
s.44 Children Act 1989
44 Orders for emergency protection of children.(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;
(b)in the case of an application made by a local authority—
(i)enquiries are being made with respect to the child under section 47(1)(b); and
(ii)those enquiries are being frustrated by access to the child being unreasonably refused to a
person authorised to seek access and that the applicant has reasonable cause to believe that
access to the child is required as a matter of urgency; or
(c)in the case of an application made by an authorised person—
(i)the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer,
significant harm;
(ii)the applicant is making enquiries with respect to the child’s welfare; and
(iii)those enquiries are being frustrated by access to the child being unreasonably refused to a
person authorised to seek access and the applicant has reasonable cause to believe that access
to the child is required as a matter of urgency.
(2)In this section—
(a)“authorised person” means a person who is an authorised person for the purposes of section
31; and
(b)“a person authorised to seek access” means—
(i)in the case of an application by a local authority, an officer of the local authority or a person
authorised by the authority to act on their behalf in connection with the enquiries; or
(ii)in the case of an application by an authorised person, that person.
(3)Any person—
(a)seeking access to a child in connection with enquiries of a kind mentioned in subsection (1); and
(b)purporting to be a person authorised to do so,
shall, on being asked to do so, produce some duly authenticated document as evidence that he is
such a person.(4)While an order under this section (“an emergency protection order”) is in force
it—
(a)operates as a direction to any person who is in a position to do so to comply with any request to
produce the child to the applicant;
(b)authorises—
(i)the removal of the child at any time to accommodation provided by or on behalf of the applicant
and his being kept there; or
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(ii)the prevention of the child’s removal from any hospital, or other place, in which he was being
accommodated immediately before the making of the order; and
(c)gives the applicant parental responsibility for the child.
(5)Where an emergency protection order is in force with respect to a child, the applicant—
(a)shall only exercise the power given by virtue of subsection (4)(b) in order to safeguard the
welfare of the child;
(b)shall take, and shall only take, such action in meeting his parental responsibility for the child as
is reasonably required to safeguard or promote the welfare of the child (having regard in particular
to the duration of the order); and
(c)shall comply with the requirements of any regulations made by the Secretary of State for the
purposes of this subsection.
(6)Where the court makes an emergency protection order, it may give such directions (if any) as it
considers appropriate with respect to—
(a)the contact which is, or is not, to be allowed between the child and any named person;
(b)the medical or psychiatric examination or other assessment of the child.
(7)Where any direction is given under subsection (6)(b), the child may, if he is of sufficient
understanding to make an informed decision, refuse to submit to the examination or other
assessment.
(8)A direction under subsection (6)(a) may impose conditions and one under subsection (6)(b) may
be to the effect that there is to be—
(a)no such examination or assessment; or
(b)no such examination or assessment unless the court directs otherwise.
(9)A direction under subsection (6) may be—
(a)given when the emergency protection order is made or at any time while it is in force; and
(b)varied at any time on the application of any person falling within any class of person prescribed
by rules of court for the purposes of this subsection.
(10)Where an emergency protection order is in force with respect to a child and—
(a)the applicant has exercised the power given by subsection (4)(b)(i) but it appears to him that it is
safe for the child to be returned; or
(b)the applicant has exercised the power given by subsection (4)(b)(ii) but it appears to him that it
is safe for the child to be allowed to be removed from the place in question,
he shall return the child or (as the case may be) allow him to be removed.(11)Where he is required
by subsection (10) to return the child the applicant shall—
(a)return him to the care of the person from whose care he was removed; or
(b)if that is not reasonably practicable, return him to the care of—
(i)a parent of his;
(ii)any person who is not a parent of his but who has parental responsibility for him; or
(iii)such other person as the applicant (with the agreement of the court) considers appropriate.
(12)Where the applicant has been required by subsection (10) to return the child, or to allow him to
be removed, he may again exercise his powers with respect to the child (at any time while the
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emergency protection order remains in force) if it appears to him that a change in the
circumstances of the case makes it necessary for him to do so.
(13)Where an emergency protection order has been made with respect to a child, the applicant
shall, subject to any direction given under subsection (6), allow the child reasonable contact with—
(a)his parents;
(b)any person who is not a parent of his but who has parental responsibility for him;
(c)any person with whom he was living immediately before the making of the order;
(d)any person in whose favour a contact order is in force with respect to him;
(e)any person who is allowed to have contact with the child by virtue of an order under section 34;
and
(f)any person acting on behalf of any of those persons.
(14)Wherever it is reasonably practicable to do so, an emergency protection order shall name the
child; and where it does not name him it shall describe him as clearly as possible.
(15) A person shall be guilty of an offence if he intentionally obstructs any person exercising the
power under subsection (4)(b) to remove, or prevent the removal of, a child.
(16)A person guilty of an offence under subsection (15) shall be liable on summary conviction to a
fine not exceeding level 3 on the standard scale.
S.44A Children Act 1989
44A Power to include exclusion requirement in emergency protection order.(1)Where—
(a)on being satisfied as mentioned in section 44(1)(a), (b) or (c), the court makes an emergency
protection order with respect to a child, and
(b)the conditions mentioned in subsection (2) are satisfied,
the court may include an exclusion requirement in the emergency protection order.(2)The
conditions are—
(a)that there is reasonable cause to believe that, if a person (“the relevant person”) is excluded
from a dwelling-house in which the child lives, then—
(i)in the case of an order made on the ground mentioned in section 44(1)(a), the child will not be
likely to suffer significant harm, even though the child is not removed as mentioned in section
44(1)(a)(i) or does not remain as mentioned in section 44(1)(a)(ii), or
(ii)in the case of an order made on the ground mentioned in paragraph (b) or (c) of section 44(1),
the enquiries referred to in that paragraph will cease to be frustrated, and
(b)that another person living in the dwelling-house (whether a parent of the child or some other
person)—
(i)is able and willing to give to the child the care which it would be reasonable to expect a parent to
give him, and
(ii)consents to the inclusion of the exclusion requirement.
(3)For the purposes of this section an exclusion requirement is any one or more of the following—
(a)a provision requiring the relevant person to leave a dwelling-house in which he is living with the
child,
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(b)a provision prohibiting the relevant person from entering a dwelling-house in which the child
lives, and
(c)a provision excluding the relevant person from a defined area in which a dwelling-house in
which the child lives is situated.
(4)The court may provide that the exclusion requirement is to have effect for a shorter period than
the other provisions of the order.
(5)Where the court makes an emergency protection order containing an exclusion requirement, the
court may attach a power of arrest to the exclusion requirement.
(6)Where the court attaches a power of arrest to an exclusion requirement of an emergency
protection order, it may provide that the power of arrest is to have effect for a shorter period than
the exclusion requirement.
(7)Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on
one or more occasions) on an application to vary or discharge the emergency protection order.
(8)Where a power of arrest is attached to an exclusion requirement of an emergency protection
order by virtue of subsection (5), a constable may arrest without warrant any person whom he has
reasonable cause to believe to be in breach of the requirement.
(9)Sections 47(7), (11) and (12) and 48 of, and Schedule 5 to, the Family Law Act 1996 shall have
effect in relation to a person arrested under subsection (8) of this section as they have effect in
relation to a person arrested under section 47(6) of that Act.
(10)If, while an emergency protection order containing an exclusion requirement is in force, the
applicant has removed the child from the dwelling-house from which the relevant person is
excluded to other accommodation for a continuous period of more than 24 hours, the order shall
cease to have effect in so far as it imposes the exclusion requirement.]
s. 44B Children Act 1989
44B Undertakings relating to emergency protection orders.(1)In any case where the court has
power to include an exclusion requirement in an emergency protection order, the court may accept
an undertaking from the relevant person.
(2)No power of arrest may be attached to any undertaking given under subsection (1).
(3)An undertaking given to a court under subsection (1)—
(a)shall be enforceable as if it were an order of the court, and
(b)shall cease to have effect if, while it is in force, the applicant has removed the child from the
dwelling-house from which the relevant person is excluded to other accommodation for a
continuous period of more than 24 hours.
(4)This section has effect without prejudice to the powers of the High Court and county court apart
from this section.
(5)In this section “exclusion requirement” and “relevant person” have the same meaning as in
section 44A.
s. 45 Children Act 1989
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45 Duration of emergency protection orders and other supplemental provisions.(1)An emergency
protection order shall have effect for such period, not exceeding eight days, as may be specified in
the order.
(2)Where—
(a)the court making an emergency protection order would, but for this subsection, specify a period
of eight days as the period for which the order is to have effect; but
(b)the last of those eight days is a public holiday (that is to say, Christmas Day, Good Friday, a
bank holiday or a Sunday),
the court may specify a period which ends at noon on the first later day which is not such a
holiday.(3)Where an emergency protection order is made on an application under section 46(7),
the period of eight days mentioned in subsection (1) shall begin with the first day on which the child
was taken into police protection under section 46.
(4)Any person who—
(a)has parental responsibility for a child as the result of an emergency protection order; and
(b)is entitled to apply for a care order with respect to the child,
may apply to the court for the period during which the emergency protection order is to have effect
to be extended.(5)On an application under subsection (4) the court may extend the period during
which the order is to have effect by such period, not exceeding seven days, as it thinks fit, but may
do so only if it has reasonable cause to believe that the child concerned is likely to suffer significant
harm if the order is not extended.
(6)An emergency protection order may only be extended once.
(7)Regardless of any enactment or rule of law which would otherwise prevent it from doing so, a
court hearing an application for, or with respect to, an emergency protection order may take
account of—
(a)any statement contained in any report made to the court in the course of, or in connection with,
the hearing; or
(b)any evidence given during the hearing,
which is, in the opinion of the court, relevant to the application.(8)Any of the following may apply to
the court for an emergency protection order to be discharged—
(a)the child;
(b)a parent of his;
(c)any person who is not a parent of his but who has parental responsibility for him; or
(d)any person with whom he was living immediately before the making of the order.
[F1(8A)On the application of a person who is not entitled to apply for the order to be discharged,
but who is a person to whom an exclusion requirement contained in the order applies, an
emergency protection order may be varied or discharged by the court in so far as it imposes the
exclusion requirement.
(8B)Where a power of arrest has been attached to an exclusion requirement of an emergency
protection order, the court may, on the application of any person entitled to apply for the discharge
of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as
it confers a power of arrest (whether or not any application has been made to vary or discharge
any other provision of the order).]
(9)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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[F3F4(10)No appeal may be made against—
(a)the making of, or refusal to make, an emergency protection order;
(b)the extension of, or refusal to extend, the period during which such an order is to have effect;
(c)the discharge of, or refusal to discharge, such an order; or
(d)the giving of, or refusal to give, any direction in connection with such an order.]
(11)Subsection (8) does not apply—
(a)where the person who would otherwise be entitled to apply for the emergency protection order
to be discharged—
(i)was given notice (in accordance with rules of court) of the hearing at which the order was made;
and
(ii)was present at that hearing; or
(b)to any emergency protection order the effective period of which has been extended under
subsection (5).
(12)A court making an emergency protection order may direct that the applicant may, in exercising
any powers which he has by virtue of the order, be accompanied by a registered medical
practitioner, registered nurse or [F5registered midwife], if he so chooses.
[F3(13)The reference in subsection (12) to a registered midwife is to such a midwife who is also
registered in the Specialist Community Public Health Nurses' Part of the register maintained under
article 5 of the Nursing and Midwifery Order 2001.
s. 46 Children Act 1989
46 Removal and accommodation of children by police in cases of emergency.(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.
(2)For the purposes of this Act, a child with respect to whom a constable has exercised his powers
under this section is referred to as having been taken into police protection.
(3)As soon as is reasonably practicable after taking a child into police protection, the constable
concerned shall—
(a)inform the local authority within whose area the child was found of the steps that have been, and
are proposed to be, taken with respect to the child under this section and the reasons for taking
them;
(b)give details to the authority within whose area the child is ordinarily resident (“the appropriate
authority”) of the place at which the child is being accommodated;
(c)inform the child (if he appears capable of understanding)—
(i)of the steps that have been taken with respect to him under this section and of the reasons for
taking them; and
(ii)of the further steps that may be taken with respect to him under this section;
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(d)take such steps as are reasonably practicable to discover the wishes and feelings of the child;
(e)secure that the case is inquired into by an officer designated for the purposes of this section by
the chief officer of the police area concerned; and
(f)where the child was taken into police protection by being removed to accommodation which is
not provided—
(i)by or on behalf of a local authority; or
(ii)as a refuge, in compliance with the requirements of section 51,secure that he is moved to
accommodation which is so provided.
(4)As soon as is reasonably practicable after taking a child into police protection, the constable
concerned shall take such steps as are reasonably practicable to inform—
(a)the child’s parents;
(b)every person who is not a parent of his but who has parental responsibility for him; and
(c)any other person with whom the child was living immediately before being taken into police
protection,
of the steps that he has taken under this section with respect to the child, the reasons for taking
them and the further steps that may be taken with respect to him under this section.(5)On
completing any inquiry under subsection (3)(e), the officer conducting it shall release the child from
police protection unless he considers that there is still reasonable cause for believing that the child
would be likely to suffer significant harm if released.
(6)No child may be kept in police protection for more than 72 hours.
(7)While a child is being kept in police protection, the designated officer may apply on behalf of the
appropriate authority for an emergency protection order to be made under section 44 with respect
to the child.
(8)An application may be made under subsection (7) whether or not the authority know of it or
agree to its being made.
(9)While a child is being kept in police protection—
(a)neither the constable concerned nor the designated officer shall have parental responsibility for
him; but
(b)the designated officer shall do what is reasonable in all the circumstances of the case for the
purpose of safeguarding or promoting the child’s welfare (having regard in particular to the length
of the period during which the child will be so protected).
(10)Where a child has been taken into police protection, the designated officer shall allow—
(a)the child’s parents;
(b)any person who is not a parent of the child but who has parental responsibility for him;
(c)any person with whom the child was living immediately before he was taken into police
protection;
(d)any person in whose favour a contact order is in force with respect to the child;
(e)any person who is allowed to have contact with the child by virtue of an order under section 34;
and
(f)any person acting on behalf of any of those persons,
to have such contact (if any) with the child as, in the opinion of the designated officer, is both
reasonable and in the child’s best interests.(11)Where a child who has been taken into police
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protection is in accommodation provided by, or on behalf of, the appropriate authority, subsection
(10) shall have effect as if it referred to the authority rather than to the designated officer.
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APPENDIX B
Case Law Guidance Checklist to place before FPC upon application for EPO
14 point X Council Munby J Guidelines
X Council v B and others (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005] 1 FLR
341 as per Munby J at 367, at para 57,
[57] The matters I have just been considering are so important that it may be convenient if I
summarise the most important points:
i.
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 b made unless the FPC is satisfied
that tit is both necessary and proportionate and that no other less radical form of
order will achieve the essential en of promoting the welfare of the child. Separation
is only to be contemplated if immediate separation is essential to secure the child
safety: 'imminent danger' must be 'actually established'.
ii. Both the local authority which seeks the EPO and the FPC which makes an EPO
assume a heavy burden of responsibility. It is important that both the local authority
and FPC approach every application for an EPO with an anxious awareness of the
extreme gravity of the relief being sort and a scrupulous regard for the European
Convention right of both the child and parents.
iii. Any order must provide for the least interventionist solution consistent with the
preservation of the child's immediate safety.
iv. If the real purpose of the local authority's application is to enable it to have the child
assessed than consideration should be given to whether that objective cannot be
equally effectively, and more proportionality, be achieved by an application for, or
by the making of, a CAO under s.43 of the Children Act 1989.
v. No EPO should ever 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.
vi. The evidence in support of the application for an EPO must be full, detailed,
precise and compelling. Unparticularised generalities will not suffice. The sources
of hearsay evidence must be identified. Expressions of opinions must be supported
by detailed evidence and properly articulated reasoning.
vii. Save in wholly exceptional cases, parent 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 on.
viii. 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
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to give some kind of 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.
ix. The evidential burden on the local authority it 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
matter, whether of fact or of law.
x. Section 47(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 requirement of rr20, 21(5) and 21(6) of the Family Proceedings Court
(Children Act 1989) Rules 1991. The FPC must 'keep a note of the substance of
the oral evidence' and must also record in writing not merely it reasons but also
any findings of fact.
xi. The mere fact that the FPC is under the obligations imposed by rr 21(5), 21(6) and
21(8), is no reasons 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 are to be lodge
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 representative 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 the proper request for information
which they are unable to provide.
xii. Section 44(5)(b) of the Children Act 1989 provides that the local authority may
exercise its parental responsibility only in such a 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 s44(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 to secure the child's immediate
safety. The mere fact that the local authority has obtained an EPO is not of 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 an 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.
xiii. Consistently with the local authorities positive obligation under Art 8 to take
appropriate action to reunite parent and child, ss44(10(a) an s44(11)(a) impose on
the local authority a mandatory obligation to return a child who it had removed
under ss44(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
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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 is necessary to
secure the child's safety. In this respects, the local authority is under a duty to
exercise exceptional diligence.
xiv. Section44(13) of the Children Act 1989 requires the local authority, subject to any
direction given by the FPC under s44(6), to allow a child who is subject to an EPO
'reasonable contact' with his parents. Arguments for contact must be driven by the
needs of the family, not stunted by lack of resources
Re X McFarlane J additional EPO Guidelines
RE X (Emergency Protection Orders) [2006] EWHC 520 (Fam); [2006] 2 FLR 701 as per
McFarlane J at 717, at para 65 and 66.
[65] Many of the matter described by Munby J in X Council v B are clearly applicable in the resent
case. I agree with each and every one of his observations. I regard this list of 14 factors to be
'required' reading for every magistrate and justices' clerk involved in any EPO application. The list
should be copied and placed before the court on every occasion that an application is made for an
EPO so that the bench may consider its applicability to the case that is before them. Applicants for
an EPO and their legal advisers should consider themselves under a duty to the court to endure
that this list is expressly and in terms drawn to the attention of the bench.
[66] Th only development of X Council and B Guidelines I would offer is in relation to the record of
the hearing. It seems to be that the following two steps should be undertaken whenever an
application is made without notice for an EPO:
(a) the hearing ought to be tae recorded. Most magistrates' court are not wired up for
regular recording, but in my view resources ought to be made for the introduction of a small
portable tape recorder (or even a diction recorder). In the absence of such provision then a
dedicated note taken, in addition to the clerk, should attend the hearing with the task of
compiling a verbatim note:
(b) paragraph (xi) of the B Council guidelines limits the requirement to provide information t
o parents, where the hearing has taken place without notice, to cases where the parents
ask for information. I would go further an say that unless there is a very good reason to the
contrary, the parents should always be given a full account of the material submitted to the
court, the evidence given at the hearing, the submissions made to support the application
and the justices reasons whether they ask for this information or not.
McFarlane J's Good Practice Guidance summarised as follows:
For ease of reference I will now draw together the observations I have made with some additional
guidance:
a) The 14 key points made by Munby J in X Council v B should be copied and made available to
the justices hearing an EPO on each and every occasion such an application is made;
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b) It is the duty of the applicant for an EPO to ensure that the X Council v B guidance is brought to
the court's attention of the bench;
c) Mere lack of information or a need for assessment can never of themselves establish the
existence of a genuine emergency sufficient to justify an EPO. The proper course in such a case is
to consider application for a Child Assessment Order or issuing s 31 proceedings and seeking the
court's directions under s 38(6) for assessment;
d) Evidence given to the justices should come from the best available source. In most cases this
will be from the social worker with direct knowledge of the case;
e) Where there has been a case conference with respect to the child, the most recent case
conference minutes should be produced to the court;
f) Where the application is made without notice, if possible the applicant should be represented by
a lawyer, whose duties will include ensuring that the court understands the legal criteria required
both for an EPO and for an application without notice;
g) The applicant must ensure that as full a note as possible of the hearing is prepared and given to
the child's parents at the earliest possible opportunity;
h) Unless it is impossible to do so, every without notice hearing should either be tape-recorded or
be recorded in writing by a full note being taken by a dedicated note taker who has no other role
(such as clerk) to play in the hearing;
i) When the matter is before the court at the first 'on notice' hearing, the court should ensure that
the parents have received a copy of the clerk's notes of the EPO hearing together with a copy of
any material submitted to the court and a copy of the justices' reasons;
j) Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without
notice;
k) Cases of sexual abuse where the allegations are inchoate and non-specific, and where there is
no evidence of immediate risk of harm to the child, will rarely warrant an EPO;
l) Cases of fabricated or induced illness, where there is no medical evidence of immediate risk of
direct physical harm to the child, will rarely warrant an EPO;
m) Justices faced with an EPO application in a case of emotional abuse, non specific allegations of
sexual abuse and/or fabricated or induced illness, should actively consider refusing the EPO
application on the basis that the local authority should then issue an application for an interim care
order. Once an application for an ICO has been issued in such a case, it is likely that justices will
consider that it should immediately be transferred up for determination by a county court or the
High Court;
n) The requirement that justices give detailed findings and reasons applies as much to an EPO
application as it does to any other application. In a case of urgency, the decision may be
announced and the order made with the detailed reasons prepared thereafter;
o) Where an application is made without notice, there is a need for the court to determine whether
or not the hearing should proceed on a without notice basis (and to give reasons for that decision)
independently of any subsequent decision upon the substantive EPO application.
Smita Shah
FAMILY Team
Garden Court Chambers
19th January 2012
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