A Solicitors Guide to an Emergency Protection Order

This Guide on making an Emergency Protection Order has been written by Cartwright King’s Child Law solicitor, Daniel Maiden.

What is an Emergency Protection Order?

An Emergency Protection Order, known as an “EPO”, is an order made when it can be shown that unless emergency action is taken, the child(ren), will be at risk of significant harm.

When are Emergency Protection Orders applied for?

There are two instances where an EPO is applied for. The first is where those applying may wish to remove a child(ren) from their current accommodation to a place of safety or keep that child(ren) in their current accommodation.

An example would include, a Local Authority applying to remove a child(ren) from the care of their parents and to place them in Foster Care if the child(ren) has made allegations of serious physical harm. Another example would include a Local Authority applying to keep a child(ren) in hospital if the parents of that child(ren) wish to remove the child(ren) unreasonably from hospital.

The second instance where an EPO is applied for is where a Local Authority is being refused access to see a child(ren) during their child protection investigation process. An example would include, if a person who has been assessed as a risk to children has started a relationship with someone and has moved in with them and they live with their child(ren). The Local Authority will carry out a visit to make sure the child(ren) is safeguarded. If the parent of the child(ren) refuses the Local Authority to enter the property, the Local Authority may then apply for an EPO.

Who can apply for an Emergency Protection Order?

In short, anyone can apply for an EPO, however, it is usually Local Authorities who apply such as Birmingham City Council.

Applications for EPO’s can be in respect of a child(ren) up to the age of 18. Applications for EPO’s cannot be made in respect of unborn children and the mere presence of a child being in a Local Authority, is sufficient for a Local Authority to make an application for an EPO.

For example, a child may live in Birmingham but if an incident happens in Wolverhampton, Wolverhampton City Council can apply for an EPO despite the child being resident in Birmingham.

What must the Court consider when an application for an Emergency Protection Order is made?

The first thing the Court must consider is the alleged risk of significant harm. This is an objective test and the Court’s belief must be satisfied. The Court may make an EPO where there is reasonable cause to believe that the child(ren) is likely to suffer significant harm if;

1) The child(ren) is not removed to accommodation provided by or on behalf of the Applicant; or

2) the child(ren) does not remain in the place in which it is being accommodated at the time of the application.

If the Court is satisfied that there is a reasonable cause to believe that the child(ren) are likely to suffer significant harm, the Court must then consider the welfare of the child(ren).

When a party makes any application for a Court Order in connection to children, the Court will always have regard to the child(ren)’s welfare as its paramount consideration. The Court when considering the welfare of the child(ren) will have regard to the welfare checklist. This checklist includes the following factors;

(a)the ascertainable wishes and feelings of the child(ren) concerned (considered in the light of his age and understanding);

(b)his physical, emotional and educational needs;

(c)the likely effect on him of any change in his circumstances;

(d)his age, sex, background and any characteristics of his which the court considers relevant;

(e)any harm which he has suffered or is at risk of suffering;

(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)the range of powers available to the court under this Act in the proceedings in question.

The Court’s considerations must also include the following;

1. Why it is necessary to remove the child(ren) as a matter of urgency;
2. Whether there is any alternative way of protecting the child(ren), for example the alleged abuser leaving the child’s home; and
3. Whether the child’s removal can be achieved with the co-operation of their carers

The Court has made it clear that an EPO should be the last resort and not the first resort due to its serious consequences for the child(ren). This order should be both necessary and proportionate and the least interventionist solution consistent with the child’s immediate safety.

Applications for Emergency Protection Orders

The Court, in recent years, has made it very clear that to justify making an application for an EPO, it is a very high hurdle for a Local Authority to jump. The Court has held the following;

1. There must be very strong grounds and imminent danger;
2. The Order should be for the shortest possible period necessary;
3. Detailed and compelling evidence is needed;
4. The best available evidence should be given;
5. Emotional abuse, unclear allegations of sexual abuse or fabricated illness allegations without medical evidence of immediate risk of physical harm will rarely be adequate grounds for an EPO;
6. Mere lack of information or need for assessment can never on their own justify an EPO;
7. The Court must make clear and record detailed findings and reasons, but can make an order and give detailed reasons later;
8. If an EPO is granted, it is still necessary for the Local authority to decide whether to remove the child;
9. If removed, reasonable contact should normally be allowed; and
10. If removed, the case must be regularly reviewed and the child should be returned if it becomes safe to do so

Most applications for EPO’s are made on short notice to parents, but sometimes, with the Court’s agreement, applications for EPO’s may be made without notice to parents, but again, the Court has made it very clear that if a Local Authority is requesting this course of action, it is a very high hurdle for the Local Authority to jump.

If an Emergency Protection Order is made what are the consequences ?

If the Court makes an Emergency Protection Order in favour of a Local Authority, while that order is in force it:

1. Means that any person who is in a position to do so to comply with any request to produce the child(ren) to the Local Authority;
2. authorises the following;
   i. the removal of the child(ren) at any time to accommodation provided by or on behalf of the Local Authority and his being kept there; or
   ii. the prevention of the child(ren)’s removal from any hospital, or other place, in which he was being accommodated immediately before the making of the order;
3. gives the Local Authority parental responsibility for the child(ren). However, this parental responsibility is limited. It only entitles the Local Authority to remove the child(ren) or prevent the child(ren)’s removal if it is to safeguard or promote the child(ren)’s welfare. For Example, whilst an Emergency Protection Order is in place, the Local Authority cannot change the child(ren)’s school

An EPO shall have effect for eight days including the day it is made. An EPO can only be extended once for a period of seven days.

If a Court making an EPO does not have enough information about the child(ren)’s whereabouts but thinks someone else does, it can include a provision within the order for that person to divulge the information.

The Court can grant the power to an Applicant for an EPO to enter named premises and search for a child(ren) but this does not include a power to use force to gain entry. If force is needed, the Court can be asked either at the time of the EPO application or later, to issue a search warrant to authorize the police to use such force.

IF an EPO is granted, there is a presumption in favour of contact with a number of people including those who have Parental Responsibility and anyone who was living with the child(ren).

The effect of an EPO means any person able to do so must produce the child(ren). The order authorizes, but does not compel, the child(ren)’s removal to other accommodation, or the child(ren) being kept where they are currently accommodated.

There is no right to appeal an EPO if granted or refused.