Emergency Protection Orders (EPOs) in respect of children

What is an Emergency Protection Order?

If granted by the court, an Emergency Protection Order (EPO) gives the applicant the power to remove a child or keep a child in a safe place for a specified duration. It gives the applicant parental responsibility but this is limited to whatever is required to protect the child’s welfare.

An EPO is an extreme measure and is therefore used only in cases of emergencies, ie, where the child is considered to be in imminent danger.

What is the effect of an EPO?

Under s 44(4) of the Children Act 1989 (CA 1989), an EPO has three effects:

  • it directs any person to comply with any request to produce the child to the applicant;
  • it provides for the removal of the child to accommodation provided by the applicant; or prevents of the child’s removal from a hospital or other place in which they have been accommodated immediately prior to the order;
  • it gives limited parental responsibility for the child to the applicant but does not remove it from anyone else who has parental responsibility 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.

Any person may apply for an EPO under s 44(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:

  • they are not removed to accommodation provided by or on behalf of the applicant; or
  • they do not remain in the place where they are being accommodated.

A local authority may rely on ground (a) above or may use an alternative route under s 44(1)(b):

  • inquiries are being made with respect to the child under s 47(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.

An authorised person, eg, the NSPCC, may apply on the ground set out in s 44(1)(c) if it can be shown that:

  • there are reasonable grounds to believe that a child is suffering, or is likely to suffer, significant harm;
  • inquiries are being made 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. Significant is not defined, but a single traumatic event may amount to significant harm (eg, a violent assault) or it could be a culmination of significant events which interrupt, change or damage the child’s physical and psychological development.

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

The court must be satisfied that one of the grounds in s 44(1) as above is satisfied and that the child’s welfare requires that the order be made: the welfare of the child is a paramount consideration in respect of EPOs. The court must be satisfied that the making of the order will be better for the child than making no order (‘the no order principle’).

What is the duration of an EPO?

The local authority must return the child to the parent as soon as it appears safe to do so. It must review the case every day to ensure the child and its parents aren’t separated for longer than necessary.

An EPO, however, may have effect in the first instance for a maximum of eight days. The relevant period also includes any period when the child is in police protection.

The court may extend the period by up to seven days. This power can only be exercised if the applicant has parental responsibility for the child as a result of the EPO and is entitled to apply for a care order with respect to the child – ie, 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.

In this time, the applicant local authority will decide whether to apply for a care or supervision order and should file the application as soon as practicable.

A party may apply to discharge an EPO only if they were not present when it was initially made. The people who can apply to discharge the order are:

  • the child;
  • the child’s parents;
  • anyone with parental responsibility for the child;
  • anyone the child was living with immediately before the order was made, unless they were present at the court hearing.

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.