Emergency Protection Orders (EPOs) in respect of children

What is an emergency protection order?

In practice emergency protection orders, also known as EPOs, give the applicant the power to remove the child or to keep the child in a safe place for a specified duration. Those orders operate in an injunctive manner to demand a handover of the child to the applicant.

They are very extreme measures and are used with great caution in cases of emergencies.

What is the effect of an EPO?

EPOs are introduced and governed by the Children Act 1989. Section 44(4) of the Act provides that EPOs have three effects:

It operates to direct any person to comply with any request to produce the child to the applicant
The order provides for the removal of the child to accommodation provided by the applicant; or alternatively it governs the prevention of the child’s removal from a hospital or other place in which he has been accommodated immediately prior to the order
EPO gives parental responsibility for the child while at the same time does not remove it from anyone else who has PR in respect of the child

Who can apply and what are the provisions?

There are three different situations and tests depending on the type of the applicant.

Firstly, in general any person may apply for an emergency protection order under s44(1)(a) but the court may only grant the order under this ground if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if either:

He is not removed to accommodation provided by or on behalf of the applicant; or
He does not remain in the place where he is being accommodated.

Secondly, a local authority may rely on ground (a) as above or may use an alternative rout under s44(1)(b):

Inquiries are being made with respect to the child under s47(1)(b); and
Those inquiries are being frustrated by access to the child being unreasonably denied 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

Thirdly, an authorised person (at this moment the provisions only apply to the NSPCC) may apply on the ground set out in s44(1)(c) if he can show that:

He has reasonable ground to believe that a child is suffering, or is likely to suffer, significant harm
He is making inquiries with respect to the child’s welfare
Those inquiries 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

The terms harm and significant appear on number of occasions in respect of EPOs. For the purposes of those orders harm means ill-treatment or the impairment of health and development and even though significant has not itself been defined, the judicial guidance provides that it is not to be equated with substantial.

What factors is the court to consider prior making the order?

The court must be satisfied that one of the grounds in section 44(1) as above is satisfied. Secondly, the court must be of the opinion that the child’s welfare requires that the order be made. It is important to note that the welfare of the child is a paramount consideration in respect of EPOs. Thirdly, the court must be satisfied that the making of the order will be better for the child than making no order, which is also known as the no order principle.

What is the duration of an EPO?

An EPO may have effect in the first instance for a maximum of 8 days. The relevant period also includes any period when the child is in police protection.
In specific circumstances, the court may extend the period of up to 7 days. This power can only be exercised if the applicant has parental responsibility for the child as a result of the emergency protection order and is entitled to apply for a care order with respect to the child – i.e. local authorities and NSPCC.
The extension should only be granted if the court has reasonable cause to believe that the child is likely to suffer significant harm if the order is not extended.
Therefore, the total amount for an emergency protection order is up to 15 days.
An applicant local authority could be expected to make a decision on whether to apply for a care or supervision order within that time and file the application as soon as practicable.
A party may apply to discharge an EPO only if he was not present when it was initially made. Therefore, a party can be present to oppose the making or the order or apply for it to be discharged but not both. An application to discharge an EPO can be made immediately after the order was made. However, such cannot be heard before 72 hours have elapsed from the time of the order.
Further, there is no right to appeal regarding any decision to make, refuse to make or discharge an EPO. The only method of review currently available would be judicial review if there are grounds to support it.


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