Emergency Protection Orders
Following the high
profile failings of Social Services in the Baby P case, we introduced a guide on
how members of the public could apply for an Emergency Protection Order
for children at risk. This is not something that should be done lightly. The
circumstances MUST BE that you are aware that children are at
risk of, or suffering significant harm. With impending cutbacks to Children’s Services budgets, we have decided
to make this factsheet and guide freely available.
Any adult can apply
to the court for an Emergency Protection Order, but it is rare for a member of
the public to do so (not least because few people know they can). We would
envisage that the most likely people to use this factsheet are members of the
extended family such as grandparents, aunts and uncles, or a non-resident
parent who becomes aware that the children are suffering harm. When applying
for an Emergency Protection Order, you are applying for the children to be
placed in your temporary care for a period of 8 days (during which time, Social
Services have an obligation to carry out an investigation) and you can apply to
the court for further orders (such as residence).
The factsheet
provides guidance on how to make the application to the court, which court
forms to use, the cost of an application, what might happen if social services
or the police become involved, when such an application may or may not be
granted, what may happen during the 8 day period in which the order lasts, and
gives suggestions for when meeting the police or social services
If you believe a
child is at immediate risk of physical harm, we would always recommend you call
the police immediately. This factsheet is primarily intended for when you have
notified the agencies, but do not believe they are taking matters seriously and
want the matter to be heard by a judge, and when the situation demands urgent
judicial attention to ensure the children's safety and wellbeing.
What are
Emergency Protection Orders?
Can I
apply for an Emergency Protection Order?
When
might the court make an Emergency Protection Order?
Are
there other circumstances when an Emergency Protection Order might be made?
Why
does the order only last for 8 days?
What
may happen if Social Services become involved?
What
would Social Services consider prior to taking over the order?
How
will the children be recovered into my care?
Alternatives
to an Emergency Protection Order
When meeting
Social Services or the Police
Court
Forms and Applying to the Court
Finding your
local family court
Organisations
which may assist you
What
are Emergency Protection Orders? <Back to Top>
An
Emergency Protection Order is an order that lasts for eight days. The
order allows for the removal of children from their current accommodation into
the care of the applicant and accommodation provided by the applicant.
The order can be then extended for a further seven days. As the name suggests,
this type of order is only relevant to ‘emergency’ situations where it is
considered that there is significant risk to the children.
The
Emergency Protection Order directs that anyone in a position to produce the
child to the applicant must do so and allows for the removal of the
child to the applicant’s care.
The
order temporarily grants the applicant Parental Responsibility for the children if the applicant doesn’t
already have it.
The
order can restrict or place conditions on contact between the children and
anyone named in the order, and can direct that an assessment be carried out
which can include medical and psychiatric examination of the children.
An
amendment made to the Children Act 1989, included in the
Family Law Act 1996, allows for the child to remain in their
location, but for an adult to be removed if this will ensure that the child is
likely to cease to suffer significant harm and can include the power of arrest if the
person who has been excluded breaches the order.
Can I apply for an Emergency
Protection Order?
<Back to Top>
While
Social Services are most likely to request this type of order,
anyone can apply to the Court if they believe that children are likely to
suffer significant harm if the order isn’t made, and that the child
will likely suffer harm if they don’t remain with the applicant.
While
it is rare for anyone other than Social Services to apply for an Emergency
Protection Order, any adult may do so. If not Social Services, it is most
likely that another family member may choose to apply, such as a non-resident
parent, grandparent, aunt or uncle who becomes aware that the children are at
risk of significant harm, and wishes to provide temporary care for the children
while matters are properly investigated, and the children’s safety is secured
without delay.
When might the court make an Emergency
Protection Order? <Back
to Top>
As
mentioned previously, when the children are considered to be at risk of
significant harm. Examples of the
circumstances where such an order would be applicable can include neglect, domestic violence or sexual abuse.
Are there other circumstances in which this type of order
is made?
<Back to Top>
An
Emergency Protection Order can also be used to prevent children being
removed from their current location. An example of a situation in which this
would apply would be if a parent intended to remove their child from a hospital
preventing treatment, and their doing so would cause the child significant
harm.
Why does the order only last eight
days? <Back to Top>
Where
a child is considered to be at risk, the Court has to make a fast decision to ensure
the child is protected. This often doesn’t allow the respondent time to defend against the order, and they may
not even be aware that the matter is before the Court. The accused person could
find themselves ordered from their home and threatened with arrest if they
return.
During
the eight day period, investigations can be started to confirm the nature of
risk to the child, or the harm they have suffered. These can be carried out
while the child is in a safe environment.
During
those eight days, both the applicant and respondent to the Emergency Protection Order have the opportunity to make other
applications to the Court.
If
the respondent wasn’t notified of, and didn’t attend, the
hearing where the decision to make the order was made, they can seek to have
the order overturned (cancelled) and the child returned to their care. They can
make this application to the Court after 72 hours have elapsed from the time
the order was made.
You
might wish to consider applying for a Residence Order,
if the nature of the concerns about the children’s current primary carer makes
a return to their care unlikely allowing the child to live with you permanently.
Certainly, you need to be thinking of what you want to happen once the 8 days
have elapsed, and the court then agrees that the children shouldn’t be returned
to the respondent’s care.
What
may happen if Social Services become involved? <Back
to Top>
Regardless of whether the Court orders an
assessment, Social Services have a duty to commence an investigation into the
children’s circumstances when the Court makes an Emergency Protection Order.
If
Social Services are asked to carry out an assessment by the
Court, there is a possibility they could apply to take over responsibility for
the Emergency Protection Order if they believe it to be in the best interests
of the children concerned. The Court will then treat Social Services as if they
had been granted the
Court Order.
An
Emergency Protection Order cannot be transferred in favour of Social
Services if the children are in a refuge, since a
refuge is considered to be a place of safety.
What would Social Services consider before applying to take over the
Order? <Back to Top>
Social
Services have a duty to discuss such steps with the
original applicant for the Emergency Protection Order. They must base such
a decision on the principles set out in the Welfare Checklist, the opinion of the
Court, the reasons for the original application, and will take into account the
nature of the relationship between the applicant and the children.
As
an example, a set of circumstances that could result in Social Services taking over an order could be where a
neighbour of the family made the application after having witnessed neglect. In the event that
the order was granted as neglect was proved, but the neighbour couldn’t provide
a suitable level of care, a transfer of the order would be in the children’s
best interests.
Understandably,
if there is concern that the children would suffer significant harm in the care of both the respondent and the
applicant,
Social Services should take over the order.
What is the Welfare Checklist? <Back
to Top>
The
Welfare Checklist is a list of
principles that must be considered when assessing cases that involve children. These principles
include consideration of:
(a)
the ascertainable
wishes and feelings of the child concerned (considered in the light of his age
and understanding);
(b)
the child’s
physical, emotional and educational needs;
(c) the likely effect on the child of any change in his
circumstances;
(d)
their age, sex,
background and any characteristics of his which the Court considers relevant;
(e) any harm which the child has suffered or is at risk of
suffering;
(f) how capable each of
the child’s parents, and any other person in relation to whom the Court considers
the question to be relevant, is of meeting their needs;
(g)
the range of
powers available to the Court under this Act in the proceedings in question.
The
Welfare Checklist is deliberately open to interpretation and not
prescriptive, as the Court considers that every child’s circumstances and needs
may be different. Due to this ambiguity, it isn’t possible to give precise
guidance. For example, it isn’t possible to say what age a child should be to
have sufficient understanding of the implications of their views to be taken
into account. Children of the same age can be at different stages of
development.
How will the children be recovered
into my care? <Back to Top>
It
may be that the children are already staying with you unofficially when you go
to court. If the Emergency Protection Order is granted, the court may direct
that a social worker collect the children, or decide that the police should
accompany you, or the social worker, if there are concerns that the children’s
primary carer may be violent, refuse entry to their property, or refuse to let
the children leave.
If
the children cannot be found, and you need to return to court, you should
complete Form C2.
Form C2 is used to apply for further orders in existing proceedings. State in
that application that you are seeking an order to locate the children, and
recover them into your care. We would also recommend you contact the police and
social services at this stage (if they are not already involved), make them
aware that the court has made an Emergency Protection Order in your favour, and
that the children are missing. Depending on the circumstances, time could be
critical to secure the children’s safety.
Are there circumstances where an
Emergency Protection Order is made but the children will not be placed in
my care? <Back to Top>
Yes.
If the children are living in a refuge, then it may be considered that the
children are already in a place of safety.
In these circumstances, consider an application for a Residence Order.
If
the children have gone missing, you could consider also applying for a Seek and
Locate order. However, one would expect the presiding judge to do make such an
order. Magistrates and judges can make any order they deems necessary to secure
the safety of the children.
If
the court orders the police to assist in finding and recovering the children,
before bringing the child to you, or giving you
information as to the whereabouts of the child, the Police must check their
records to see whether either party has committed acts of violence. Having
located the child, and before notifying you of the child's whereabouts, they
may make enquiries with regard to the child's welfare.
If,
when the Police check their records, they find that you have a history of violence, or they are made aware of
other concerns about your suitability or ability to care for the children, the
Police may decide not to remove the child. Alternatively, the Police may take
the child into protective custody for up to 72 hours. They may also advise the
children’s primary carer to seek legal
representation and must notify the Court of their action immediately. Such
situations may arise if the primary carer convinces the police that you have
made false allegations against them, or if the primary carer makes serious
allegations about you to the police.
If
there is no record of violence and no reason to believe that you yourself are a risk to the children, the Police will leave the
children in your care.
Alternatives to an Emergency
Protection Order <Back to Top>
It
is unusual for anyone other than Social Services to apply for an Emergency
Protection Order. Reasons for you doing so may include a lack of faith in your
local Social Services, if you have contacted them raising your concerns and
feel they are not taking the matter seriously, or if you wish to have some
certainty that the children are placed in your, rather than local authority care.
If
the children are in immediate danger, you should first consider contacting the
police. The police have the power to immediately remove the children into
protective custody for up to 72 hours. If you wish to care for the children,
and the police have taken the children into protective custody, you should
speak to social services, stating you wish to care for the children either on a
temporary or permanent basis. You should also consider applying to the court
for residence.
If
Social Services are granted care of the children by a court, they might decide
to place the children with you, but would continue to be responsible for the
children’s welfare. Work with the social workers wherever possible, and we
would advise not antagonising them.
If
you have a shared residence order, and Social Services take your children into
care due to concerns about the other parent, you have the right to remove the
children from local authority care (unless the Social Workers return to court
and seek an order to prevent this).
If
you are a non-resident parent or family member, you could consider applying for
temporary or permanent residence (whichever the situation suggests may be necessary, and depending on your ability to provide full
time care for the children). See also our factsheet on Residence
Orders.
If a
grandparent or other family member, you should consider applying for a Special Guardianship Order (click the link to read our factsheet).
When Meeting the Police or Social
Services <Back to Top>
Do speak
calmly and clearly;
Do tell
the truth;
Do tell
the Social Worker or Police Officer of any concerns you have which led you to
apply for the Emergency Protection Order;
Do state
that you want only what is right for the children;
Do ensure
you cover all the points in the meeting that you feel are necessary. If time
allows, write these points down prior to the meeting, and read it before seeing
the Social Worker or Police Officer;
Do consider
if it is best for and necessary for the children to remain in your care, and
whether you are in a position to care for the children.
Don't make false allegations;
Don't exaggerate;
Don't lose
your cool, become angry, or appear unreasonably emotional.
Don't argue
or be sarcastic with the Social Worker or Police Officer.
Court Forms and Applying to Court <Back to Top>
Download and complete Form C1. Within that form, you should state you are
applying for an Emergency Protection Order and briefly set out the reasons why.
You should also complete Form C11. Print and sign three copies of the
forms.
If you consider there may be any risk to
yourself from the parent or other adult who you wish to recover the child from,
you should also consider completing Form C8 to keep your address confidential (if
that parent or person does not already know it). If there you are aware of
incidents of domestic violence, abuse or harm that the children have suffered,
and/or any involvement of agencies such as the police or social services, you
should also complete Form C1A. Again, print and sign three copies of the forms.
Check how much the court fees are, and either take a cheque, postal
order or cash for that amount when you go to the court. The fee for an
application for an Emergency Protection Order is £170 (at the time this guide
was written).
It will assist both you and the judge if
you write a brief ‘Position Statement’. Try to keep the
position statement to two to three pages, using brief paragraphs, and setting
out why you believe the children to be at risk of significant harm.
A position statement is not essential,
but it is useful for two reasons. It helps inform the judge, briefly and
ideally succinctly, why an Emergency Protection Order is required. If you can
get any witness statements to support your concerns, or photographic evidence
of bruises, or other evidence depending on the nature of your concerns, then
take them to court with you and hand them to the judge.
Before setting off for the court building,
ensure you have with you:
a] Three
completed and signed copies of the forms;
b] The cash, cheque or postal order to pay the
court fee (£170);
c] Three copies of your Position Statement (if you
have time to write one).
Go to the court building as early as possible,
ideally at 9am, and hand in the court forms and position statement to the
court’s administration department, informing them that ‘I am making an
emergency application and need the case to be heard today’.
Finding your local family court
<Back to
Top>
You can use HMCS Court Finder
to do this. Once on that website, enter in your region under ‘Court Region
Search’. Then make sure that ‘Court Work Type Search’ is set to ‘Family Work’.
Then search under ‘Court Type’ and do a search first on ‘Combined Crown and
County Court’, then ‘County and Magistrates Court’, and then ‘County Court and
District Registry’. Choose the court which is closest to where you or your
children live and print the details. We recommend you apply to a County Court
(rather than a Magistrates Court).
Organisations which may assist you
<Back to
Top>
The
Police. If you believe the child(ren) to be in immediate danger, you should contact the
police. Dial 999.
The
Family Rights Group is a charity in England and Wales that
advises, advocates and campaigns for families whose children are involved with,
or require, social care services. Their helpline is 0808 801 0366.
The
National Society for the Prevention of Cruelty to Children (NSPCC). If
you are worried about a child’s welfare, you can contact the NSPCC’s
confidential helpline on 0808 800 5000.
Support
<Back to
Top>
The Custody Minefield offers support forums
where you can ask our team of experienced support staff questions about family
law, the courts and separation. Collectively, we have answered more than 10,000
posts on other family law related support forums. Visit our Support Forum Page on
The Custody Minefield website to find out how to register.