Other Public Law: Emergency Protection Order

Posted 08.04.2019

Emily Ducat

By Emily Ducat

As part of my training this month, I was assigned a pair of files which concerned representation of the same child. This was the first time that I had followed a matter through more than one file. The first was concerned with the making of an Emergency Protection Order and the following file related to Care Proceedings, concluding with a Care Order and a Placement Order. This was the first time I had encountered a file solely dedicated to an Emergency Protection Order. As Emergency Protection Orders fall within part 5 of the Children’s Act and are part of Other Public Law, there were notable similarities to the Discharge of a Care Order files that I had completed the prior month.

An Emergency Protection Order is used in exceptionally serious situations to give the right to remove (or prevent the removal of) the child, and to grant limited parental responsibility for the child to whoever applies for the order. Anyone can apply to the Court for an EPO if they fear that a child is in imminent danger, but most applications are made by the Local Authority. The Local Authority usually has to give the parents one day’s notice of their application, but the application can be made ex parte if the circumstances are sufficiently serious. If the application is made ex parte, a copy of the application and the order must be served on the parents within 48 hours.

When the court makes an EPO, it may attach directions such as to allow for contact, to allow for medical or psychiatric assessments, or to exclude someone who has abused the child from the child’s home. The Local Authority is required to allow a child subject to an EPO reasonable contact with the parents. If the social workers believe another child to be in the premises and at risk, they can ask for an order allowing them to search for the child. If the additional child is found, the search order has the effect of an EPO and the child can be removed immediately. While the EPO is in force, the Local Authority may initiate care proceedings by applying for an interim care order or a supervision order.

There is no right to appeal against an EPO. However, the order may be discharged if one of the following people weren’t given notice of the hearing or present for it: the child; the parents; anyone with parental responsibility; anyone who the child was living with immediately before the order was made.

As soon as it is safe to do so, the Local Authority must return the child. To ensure this, they must review the case daily to make sure that the separation between parents and child does not continue for longer than necessary. An EPO can last for up to 8 days, and can be extended by a further 7 days if the application was either by the Local Authority or the NSPCC and they return to court for permission to extend the order.

EPOs are obtained under part V of the Children Act and are not covered by the Care Proceedings Graduated Fees Scheme (CPGFS). As such, they are paid by the appropriate hourly rates and the Other Public Law Family Advocacy Scheme. These payments systems were outlined in my previous blog regarding Discharge of Care Orders. The only additional feature of note for EPOs, compared to Discharge of Care Orders, is that the hearing determining whether an EPO is made is likely to be heard quickly after the application. This hearing may not be listed as a final hearing but, if it is clearly listed for the purpose of a final determination on the EPO, it can be claimed as one.

The EPO file that I costed last month was quite small, as they generally are, but preceeded a moderately sized care file. When costing, care had to be taken to ensure there was no overlap between the two files. They had separate Legal Aid Certificates for the Care proceedings and the EPO and as such the work had to be clearly recorded against one or the other, not both. It was interesting to cost a file that was intertwined with another and I found it satisfying to follow a case from start to its present state.

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