Emergency Protection Orders

What an Emergency Protection Order Is

An emergency protection order is made by the family court under section 44 of the Children Act 1989. While it is in force it authorises the applicant, in practice the local authority, to remove the child to accommodation it provides, or to keep the child in a hospital or other place, and gives the applicant parental responsibility for the child.

It differs from police protection under section 46, where a constable removes a child without a court order for no more than 72 hours; while that runs, the police may apply for an emergency protection order on the authority's behalf.

The order is short: section 45 limits it to the period specified in it, which cannot exceed eight days, and the court may extend it once by up to seven. It is not a care order. If the authority wants the child to stay in its care beyond those days it has to issue care proceedings and ask for an interim care order, unless a person with parental responsibility agrees to section 20 accommodation.

The Section 44 Test the Court Applies

The court may make the order if, but only if, it is satisfied of one of the grounds. The first, open to any applicant, is reasonable cause to believe the child is likely to suffer significant harm if not removed to accommodation provided by or on behalf of the applicant, or if they do not remain where they are then being accommodated. The second, for a local authority, is that section 47 enquiries are being frustrated by access to the child being unreasonably refused and the authority has reasonable cause to believe access is required as a matter of urgency.

Harm means ill-treatment or the impairment of health or development, including from seeing or hearing the ill-treatment of another; where whether it is significant turns on the child's health or development, the comparison is with a similar child.

In X Council v B the High Court called the order a draconian and extremely harsh measure requiring exceptional justification: it should be made only where necessary and proportionate and no less radical order would do, and imminent danger must be actually established. In Re X the court added that a lack of information or a need for assessment can never of themselves establish a genuine emergency, and that cases of emotional abuse, or of inchoate and non-specific allegations of sexual abuse with no evidence of immediate risk, will rarely warrant the order; in those cases the court should consider refusing it and leaving the authority to apply for an interim care order.

Evidence, Notice and Common Problems

The evidence must be full, detailed, precise and compelling; the High Court said unparticularised generalities will not suffice and the sources of hearsay must be identified. Section 45(7) lets the court take account of any statement in a report and any evidence given at the hearing, whatever rule would otherwise exclude it, so the social worker's evidence has to be tested.

Under Practice Direction 12C an application in emergency proceedings is served at least one day before the hearing, although the court can shorten that period, and every person the applicant believes to be a parent receives notice. The High Court has said that, save in wholly exceptional cases, parents must be given adequate prior notice of the hearing and the evidence.

Rule 12.16 of the Family Procedure Rules does allow an application without notice, in which case the application and the order must be served on each respondent within 48 hours. An applicant who goes without notice must make out a compelling case, owes the court a duty of full and frank disclosure, and should give the parents as full a note of the hearing as possible at the earliest opportunity.

Problems we see often:

• an order made without notice, with no note, statement or reasons given to the parents
• an application that is really about assessment, not a risk that cannot wait
• removal when excluding one adult from the home would have kept the child safe
• contact stopped, or cut below what section 44(13) requires

How an Emergency Protection Order Case Works

1. The local authority applies to the family court on form C110A, the form it also uses for care and supervision orders. In a genuine emergency it can apply without notice.
2. The court decides whether a ground in section 44(1) is made out and, if so, how long the order should run, up to eight days. It may give directions about contact and medical examination, include an exclusion requirement under section 44A, accept an undertaking under section 44B, and authorise entry and search under section 48. It appoints a Cafcass officer as the children's guardian unless that is unnecessary.
3. Holding the order is not the same as using it. The applicant may remove the child only to safeguard their welfare, must return the child as soon as it appears safe, and the High Court has said it must consider less drastic alternatives even after the order is granted.
4. While the order runs you can apply to vary a direction, for example on contact. The child, a parent, anyone else with parental responsibility and anyone the child was living with immediately before the order can apply to discharge it, unless they were given notice of the hearing and were present at it. There is no appeal against the order.
5. The authority can apply once to extend the order by up to seven days, which the court may grant only if it has reasonable cause to believe the child is likely to suffer significant harm otherwise. An extended order cannot be discharged on application.
6. If the authority wants the child to remain in its care when the order expires, it issues care proceedings and asks for an interim care order under section 38. Your position at that hearing is shaped by what happened under the emergency order.

Contact, Directions and Exclusion Requirements

Section 44(13) requires the applicant, subject to any direction of the court, to allow the child reasonable contact with their parents, anyone else with parental responsibility, anyone they were living with immediately before the order, anyone named in a child arrangements order or a section 34 contact order, and anyone acting on their behalf. The court can impose conditions on contact and can direct that there is to be no medical or psychiatric examination, or none without a further direction; a child of sufficient understanding may refuse.

Where the risk comes from one adult in the home, the court may include an exclusion requirement instead of removing the child, but only if there is reasonable cause to believe that excluding that person means the child will not be likely to suffer significant harm, and another person living in the home is able and willing to give the child reasonable parental care and consents. The requirement can order the person to leave, prohibit them from entering, or keep them out of a defined area, may carry a power of arrest, and lapses if the applicant moves the child elsewhere for a continuous period of more than 24 hours. The court may accept an undertaking instead, without a power of arrest. The excluded person must be served with a separate statement of the evidence and told they can apply to vary or discharge it.

If you or your child are in immediate danger call 999; the National Domestic Abuse Helpline is 0808 2000 247. Protection from an abusive partner is on our domestic abuse injunctions page.

When Legal Advice Is Especially Important

Early advice matters most where:

• the hearing is tomorrow, or has already taken place without you
• the authority's concern is an assessment it wants, not a risk that cannot wait
• you can offer a safe arrangement, such as a relative's home or the departure of the person concerned
• contact is refused, or a medical examination is proposed that you object to
• you were living with the child but are not a parent, so your right to apply and your funding need checking

Funding: legal representation for the child, a parent or another person with parental responsibility in proceedings under sections 44 and 45, and in the section 31 care proceedings that may follow, is a special Children Act 1989 case, so there is no means test, but it can be provided only by a firm that holds a legal aid contract, which RakLAW does not. We act on a privately funded basis and say so at the first call. Other adults, such as a grandparent without parental responsibility, are outside that category.

How RakLAW Solicitors Can Help

We act for parents and carers from the first call, whether the hearing is tomorrow or the order was made yesterday in your absence. We obtain the application, the statement and the note of any hearing, test the evidence against section 44 and the High Court guidance, and put your proposals for keeping the child safe without removal to the court. Once an order is made, we press for the contact section 44(13) requires and for the child's early return.

We advise on whether an application to discharge is open to you, and we prepare you for the care proceedings that may follow. The wider picture, with social services involvement, is on our care proceedings and social services hub. If you make an application yourself, any court fee is set out on the GOV.UK court fees page.

RakLAW Solicitors is at 42 Shad Thames in Southwark, a short walk from Tower Bridge, near Tower Hill, London Bridge and Bermondsey stations. Our charges are on our fees for family law page, the first 15-minute consultation is free, and you can call 0203 345 2000 or book an appointment. Please tell us when the hearing is.