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 continued cutbacks to Children´s Services budgets, we decided to make this 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 guide are members of the extended family such as grandparents, aunts and uncles, or a parent without residence or not named as a person with whom the children lives within a child arrangements order, 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 guide 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.
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.
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.
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.
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.
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 Child Arrangements Order asking for the children to live with you if the nature of the concerns about the children´s current primary carer makes a return to their care unlikely. 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.
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.
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.
The Welfare Checklist is a list of principles that must be considered when assessing cases that involve children. These principles include consideration of:
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.
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.
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 Child Arrangements Order.
If the children have gone missing, you could consider also applying for a Seek and Find Order. However, one would expect the presiding judge to do make such an order. Magistrates and judges can make any order they deem 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.
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 or are also named in a child arrangements order as someone with whom the children live, 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 not named in a residence order or a child arrangements order as someone with whom the children live, you could consider applying via a child arrangements order for the children to live with you on a temporary or permanent basis (whichever the situation suggests may be necessary, and depending on your ability to provide full time care for the children). See also our guide on Child Arrangements Orders.
If a grandparent or other family member, you should consider applying for a Special Guardianship Order.
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.
You would use 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 C110a. 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.
If you are using a solicitor, they will do this for you. Otherwise, download and complete the forms. Print and sign three copies of each.
Check how much the court fees are (refer to our Court Fees page), and either take a cheque, postal order or cash for that amount when you go to your local family court.
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, setting out briefly why you are applying for contact, and why you believe it to be in the children´s best interests. Be factual, and try to be objective in what you write, and the language you use.
A position statement is not essential, but it helps inform the judge, briefly and ideally succinctly, why you are applying for the order, and can assist you in court so you do not forget any points you wish to raise.
Before setting off for the court building, ensure you have with you:
This pack includes our guide to emergency protection orders, the necessary forms to apply to court, and our guide to writing a position statement and a template for a position statement. £2.50
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Michael Robinson © 2014
Family law information for parents whose children are resident in England and Wales
Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland.
