EPO (Emergency Protection Order)

Posted on Sunday, 30th Aug, 2015 at 08:05:05 PM
An EPO is an order made under Section 44 of the Children Act 1989 enabling a child to either be removed to a place of safety or to be kept where he or she is as a means of providing immediate short-term protection EPOs are considered to be highly draconian and will only be granted by the Court when there is evidence that the child is in "imminent danger" and that the Order is both necessary and proportionate to the level of risk posed to the child. The Court will also apply the principle of whether any order is better than no order at all.

WHO CAN APPLY FOR AN EPO ?

An EPO can be made by the family Court either on application for an EPO or a Child Assessment Order.

The following persons can apply to the Court for an EPO:

an authorised officer on behalf of the LA

an "authorised person" meaning an officer of the NSPCC or any person authorised by the Secretary of State to bring care proceedings

a designated police officer

any other person

In theory anyone could apply for an EPO but they or someone on their behalf would need to be able to provide accommodation for the child if the EPO is made.

Normally the LA will make the application to the Court

THE COURT PROCESS

An application for an EPO will usually be made by the applicant following a joint strategy discussion with the police or other involved professionals. However, in urgent situations the single agency (usually the LA) may need to act immediately and make an urgent Court application without the strategy meeting first taking place.

In some circumstances, an application can be made with the leave of the Court without any notice to any person with PR. Because of a potential breach to the parents' human rights and in particular to the parents' right to a fair trial, in reality, the Court is unlikely to allow a without notice application unless it can be proven that there is immediate danger to the child if the parents knew, such as if a threat to kill the child has been made, or if there is a very strong risk the parents will run away with the child.

The Court will appoint a solicitor for the child as well as a Children's Guardian unless the Court considers that the welfare of the child does not require it.

An application for the EPO will normally be made to the Family Proceedings Court local to the family's area.

The Court may make the EPO if it is satisfied that one of the following grounds are met:

(a)That there is reasonable cause to believe that the child is likely to suffer significant harm if he is (i)not removed to accommodation provided by or on behalf of the applicant, or (ii) if he does not remain in the place in which he is then being accommodated;

(b)That the LA's attempts under Section 47 to establish whether the child is at risk of significant harm are being frustrated by denial of access to the child; or

(c)In the case of an application by an authorised person (NSPCC), that the applicant has reasonable cause to suspect the child is suffering or likely to suffer significant harm and has been making enquiries with respect to the child's welfare, and these enquiries are being frustrated by denial of access to the child.

The overall consideration for the Court will be the welfare of the child and the Court will also need to consider whether it is better to make no Order than any order at all. The Court will also need to consider whether the making of the EPO is proportionate to the situation.

Government guidance suggests that where the need for emergency action to protect the child arises from suspected abuse the LA should seriously explore the possibility of providing services to and/or accommodation for the alleged abuser as an alternative to the removal of the child. For instance, where the risk is posed by the father at the child's home, the LA should consider whether they could pay for alternative accommodation for the father to keep him away from the home and therefore reduce any risk to the child.

DIRECTIONS ATTACHED TO THE EPO

The Court may attach directions to the EPO to authorise the applicant to enter specified premises to locate the child or to require any other person to disclose information on the whereabouts of the child. It can also issue a warrant that the police assist in locating the child and use reasonable force to enter the property where it is believed the child is residing. Anyone obstructing any person exercising their power to remove the child will be committing a criminal offence.

The Court may also direct that the child is seen for a medical or psychiatric examination. If the child is of sufficient age and understanding he or she can refuse the assessment.

The Court can also exclude any alleged perpetrator from the accommodation provided for the child if the person providing the accommodation for the child consents

WHAT IS THE EFFECT OF AN EPO?

An EPO has the following effects:

It confers limited PR on the applicant to safeguard or promote the welfare of the child as is reasonably required.(This does not replace the PR of anyone else who has it);

It authorises removal of the child to accommodation provided by the applicant; or alternatively, the prevention of the child's removal from a hospital or other place in which he was being accommodated immediately prior to the order;

It 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.

If the EPO was granted to someone other than an LA then the LA is under a duty to consider whether it should take over responsibility for the child or provide the child with accommodation. In practice, it is most likely that the LA will be the applicant for the EPO and will provide the accommodation in any event.

An EPO can be made for 8 days at the first hearing and can be extended for a further 7 days on further application. In practice, the Court will expect the LA to have conducted its initial assessment and have made a decision about whether it should apply for a Care or Supervision Order by the time of the hearing to extend the EPO.

At the expiration of the Order, the child must be returned or care proceedings commenced. The applicant holding the EPO must keep under review whether the circumstances have changed so that the child can be returned to his previous carer and if that is not the case, whether there is an alternative person with PR to whom the child could be placed with under the agreement of the Court.

Either the child, anyone with PR, any parent of the child or anyone with whom the child was living immediately before the EPO was made, can apply to discharge the EPO. There is no right of appeal against the making of the EPO.


CONTACT UNDER THE EPO

Whilst the EPO is in force, the LA must allow the child reasonable contact with:
The child's parents;
Any other person who has PR for the child;
Any other person with whom the child was living when the order was made;
Any person with a Contact Order;
Any person the Court orders the child has contact with;
Any person who has contact with the child through some already existing order.
The Court may also make a direction attached to the Order that there be contact between the child and any named person. Conditions can be attached to this. Such a direction can be made at the time of the Court hearing or at any time throughout the duration of the EPO.

GOOD PRACTICE

In the last few years, two family law cases have set out important principles that both Local Authorities and Courts need to consider when in applications for EPOs. Firstly, the then Munby J. in X Council v B (2005) set out the following:

that an EPO is considered to be "draconian" and an "extremely harsh" measure requiring "exceptional justification" and "extraordinarily compelling reasons";

immediate separation of the child from his parents must only be considered if it is essential to secure the child's safety and "imminent danger" must be "actually established";

both the LA and the Court must approach any EPO application with an anxious awareness of the extreme gravity of the nature of the order and a scrupulous regard for the human rights of both the parents and the child;

any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety;

if the reason behind the application is to have the child assessed then consideration should be given to whether the same result could be achieved by an application for a Child Assessment Order;

the EPO should not be made for any longer is necessary and if the EPO is made without notice to the parents then consideration should be given to an order for the shortest period of time to ensure the child's immediate safety;

the evidence in support of the EPO should be full, detailed, precise and compelling;

Unless there are wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application for an EPO. They must also be given proper notice of the evidence the LA is relying upon;

The LA must make out a compelling case for applying for an EPO without notice to the parents. It would normally only be appropriate where there is a genuine emergency or some great urgency and even then it should be possible to give some notice to the parents albeit very limited;

If the application is made without notice then the evidential burden on the LA is even heavier. If they do make the application without notice then the LA is under a duty to make the fullest and most candid and frank disclosure of all of the relevant circumstances known to them;
If the hearing is without notice, then the Court must make a meticulous record of what oral evidence was given;

Parents against whom an EPO was sought without notice are entitled to be given, if they ask, proper information as to what happened at the hearing and to be told, if they ask:

i. Exactly what documents, bundles or other evidential materials were provided to the Court;
ii. What legal authorities were cited to the Court;

Whilst the EPO allows the LA to exercise PR in such manner as to safeguard or promote the welfare of the child and to allow the LA to exercise its power of removal only in order to safeguard the welfare of the child, the LA must keep under review whether removal is actually required and document any decision-making in this regard;

The Children Act places an ongoing duty to the LA 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;
The LA will be under a duty during the duration of the EPO to allow reasonable contact with the parents - arrangements for contact must be driven by the family's needs and not by resources.

In addition to this the following further "good practice guidance" in relation to EPOs was set out in Re X (Emergency Protection Orders) (2006) by the then Macfarlane J.:

A copy of Munby J's judgement in X Council v B (above) should be made available at every EPO hearing;

The applicant is under a duty to ensure the judgement is available;
Mere lack of information or need for assessment can never establish genuine emergency for EPO. Proper course is an application for a Child Assessment Order or for care proceedings with a direction for the necessary assessment;

Evidence should come from best source - usually social worker with direct knowledge of the case;
Case conference minutes should be produced to the Court;
Where the application is without notice then the applicant should be represented by a lawyer who has responsibility for ensuring that the magistrates understand the legal criteria for making the EPO without notice;

The applicant must ensure a full note is taken;

Every without notice hearing should be tape-recorded or recorded in full;

At the first on-notice hearing the Court should provide the parents with the EPO notes, any material submitted to the Court and a copy of the Court's reasons for making the order;

Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without notice;

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;

Cases of fabricated illness where there is no medical evidence of immediate risk will rarely warrant an EPO;

If the Court is faced with an EPO application in a case of emotional abuse, non-specific sexual abuse allegations and/or fabricated illness it should consider refusing on the basis that the LA then issue care proceedings.

Justices hearing the application must give detailed findings and reasons;

The Court should firstly determine whether or not the hearing should proceed on a without notice basis before the main application is heard.

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