We’ve noticed that in a recent post the Researching Reform blog has highlighted the fact that it is possible for a parent to make an application for an Emergency Protection Order (EPO), an emergency order that is usually only made by social services to remove a child from home. You can read that blog post here.
We are worried that the blog post may encourage parents to try and get an EPO where it is unlikely to succeed or may not help their case very much. It says (without caveat) :
If you are a parent who believes their child is at risk of imminent harm whilst in the care of a local authority, carer or parent, you can apply for an EPO….
So, don’t be shy. The law is there to help you, don’t be afraid to use it.
The blog is technically correct – you CAN apply. But nowhere does the blog try to tackle the question of whether you SHOULD apply.
Nothing we write here is legal advice – we can only talk in general terms and not about individual cases. But whilst we wouldn’t say that an EPO is never the way to go, we think it is unlikely in most cases to be the only or best way to go about protecting your child. We’ll explain why below. If you are a parent worried about your child and thinking about asking the court to make some emergency order please try and get some legal advice first if you possibly can – legal aid may be available for this so don’t assume that you can’t get any help.
What alternatives are there to an EPO?
There are two main scenarios we will consider here :
- “Private law” : one parent is worried about the safety of a child in the care of the other (but this could also be a grandparent or extended family member)
- “Public law” : a parent is concerned about a child who is in the care of social services
Generally parents in dispute about a child are encouraged to consider mediation as an alternative to going to court, but if there are urgent or serious concerns about a child’s safety this may not be appropriate. Nevertheless, sometimes where one parent is struggling to keep a child safe it may be possible to agree the child goes to live temporarily with a relative until they are able to resume care or until the court can look at matters. We can’t say whether that is realistic or appropriate in any individual case.
If you have to go to court there are a number of orders that can be applied for :
Section 8 orders
Under section 8 of the Children Act 1989 the court can make a Child Arrangements Order (saying where a child should live and who they should spend time with) or a prohibited steps order (stopping someone from doing something, going or taking a child away). A s8 order can be made on an emergency and temporary basis where there is a genuine risk that can’t wait (see s11(3)). Typically, where a parent is very worried about their child in the care of the other parent, they can apply for an interim change of residence even without letting the other parent know in advance. Such an order will not be automatically granted, you will need to provide some evidence to explain your concerns and the reason it can’t wait, and typically the court will make the order for a very short time before arranging for the other parent to come to court so they can have their say too – or they may arrange a hearing in the next couple of days to decide if a move is justified.
The court will often be asked to make a prohibited steps order where there is a worry someone is going to disappear with a child or not return them when they should.
Family Law Act 1986
Where a child has been kept away from home by the other parent, the court can order the return of the child to the parent they live with. If not returned the court can order the child to be brought to court, can order other family members or friends to tell the court where they are or can order a police officer to go and fetch them (s33 and s34 Family Law Act 1986). There are other powers that the High Court can also use in cases of potential abduction abroad, but we won’t go into those for the purposes of this post as they are less commonly used.
Family Law Act 1996
Finally, the court can make an occupation or non molestation order to protect a child from violence or risky behaviour and to keep someone dangerous out of or away from the home or school.
This seems really to be the scenario that the post is driving at. If your child is in foster care under section 20 of the Children Act 1989 i.e. with your agreement you can just withdraw that consent if you are concerned about them. You can read more about section 20 in our Guidance Note here.
If your child is in foster care as a result of an order made by the court (an interim or final care order) you have a number of alternative options to an EPO application. If the court case is ongoing you will have legal aid and can ask your lawyer for guidance. If it has finished you may still qualify for legal aid to make one of the applications below, if your case has merit – so do check before marching off to court with an application that may not be the best one.
LAC Reviews / Independent Reviewing Officer / Complaint / Ombudsman
Every looked after child will have regular Looked After Child (LAC) reviews (sometimes called Child in Care or CIC reviews). At LAC reviews, professionals and parents consider whether the current arrangements for the child are working. This is your opportunity to raise issues with the safety or suitability of a placement. In between meetings you can raise any concerns with the Independent Reviewing Officer (IRO). An IRO has the power, if they think it is necessary to take the matter to court via CAFCASS, but as far as we are aware this power has never been exercised.
It is fair to say that parents often report difficulty making contact with their child’s IRO or express concern that they are not as independent or strong minded as they ought to be. In those circumstances lawyers may well suggest making an application to discharge a care order.
Although they are unlikely to be helpful for urgent matters, the Local Authority will also have internal complaints procedures which you can follow, and if appropriate can take up to the Ombudsman.
Application to discharge care order and / or for alternative order (child arrangements, special guardianship etc) / Human rights act injunction
Usually if a parent wants to have a child in care returned to them they will be advised to apply for discharge of the care order. Sometimes this sort of application is made because the parent is in a position to have the child home, having made changes that make the care order unnecessary – but sometimes an application is made as a device in order to get the case looked at by a judge, for example if there are concerns about the way that the local authority is exercising its parental responsibility or about the placement. At the end of the day, the court may not agree to discharge the care order, but in the course of considering the options for the child and which is best the court will have to scrutinise the placement, so problems can be brought to light this way. Sometimes these applications are combined with applications under the human rights act – most often to stop a local authority with a care order removing a child from a parent but this could be to deal with (for example) issues around the local authority not meeting a child’s religious needs.
Contest the ICO at final hearing
If a parent is worried about the care being provided in foster care and the case is still ongoing this is something to be raised with their lawyer, who can ask questions in correspondence or at meetings, or failing that at the next hearing. In many cases the guardian representing the child will have a view and may support the parents in resolving an issue. At the final hearing the parents will have the chance to argue that the care provided has not been satisfactory and that the child will be better off at home (or somewhere else).
Judicial review is a route of last resort and it is difficult to fund. But if a local authority is behaving unlawfully / unreasonably it may be possible to have their decision reviewed and quashed. You should take legal advice about this.
So what’s the advantage of an EPO then?
We’re struggling to think of one. In fact we can think of a number of potential disadvantages.
An EPO can have an exclusion requirement attached to it, but in the vast majority of cases that could be achieved more easily via an application for a non-molestation or occupation order (exclusion orders are most often needed where parents are together and social services are worried one is dangerous or violent. But in parent v parent applications the application is likely to be to remove a child from the home of one parent to take them to the (safe) home of the other, so an exclusion order is unlikely to be necessary).
A failure to cooperate with an EPO is a criminal offence. Whilst a failure to comply with a Section 8 order is a contempt of court rather than a crime, it can still be punishable by a sentence of imprisonment. But that distinction is unlikely to have much of an effect on the response of someone served with an order of one type or another. And we think it unlikely in most cases that prosecution of a parent under s44 Children Act 1989 for breach of an EPO is likely to be a policing / CPS priority. A failure to comply with a FLA 1996 non molestation order is also a criminal offence.
The court making an EPO can also issue a warrant authorising the police to go and assist in carrying out the order, but there are broadly equivalent powers in s33-4 FLA 1986.
There is a specific legal test that has to be passed before an EPO can be granted – the court must be satisfied that there are reasonable grounds for believing the child is likely to suffer significant harm if not removed (or if not kept where they are). Section 8 does not involve this specific test; here the court is required to consider all the circumstances and the child’s welfare is paramount – but in practice the court is unlikely to make an interim section 8 order unless there is sufficient evidence to suggest the child is at some significant risk. In reality, if the EPO test is satisfied, the court could just as easily make an interim child arrangements order that says the child should live with the applying parent on a temporary basis.
If, in a private law case, a father without parental responsibility successfully applied for an interim child arrangements order in order to temporarily change residence they would be automatically given parental responsibility – and even if the child arrangements order was later discharged the parental responsibility would remain. By contrast, if an EPO is made it gives the applicant parental responsibility – but only for so long as the EPO lasts (at any rate that is our interpretation of the Children Act – it is arguable that the parental responsibility would continue after the end of the EPO but we think that is a weak argument – because EPOs are rarely if ever applied for by parents this is not something that we think has ever been argued and resolved).
If, in a public law case, a parent applied for an EPO this would be against a backdrop of the court already having found that the child was at (recent) risk of significant harm in the care of the parents. Even if there are legitimate concerns about the care provided by the Local Authority it seems unlikely that the court is going to readily transfer care back to the “unsafe” parent on an emergency basis unless the evidence of risk of harm is very compelling and urgent AND the parents can somehow demonstrate that the initial evidence about the risk in their care could be safely ignored. Grumbles and niggles about the foster carer are not going to be sufficient to pass the test for an EPO. In circumstances where it was possible to demonstrate both these things we would expect the child’s guardian to be raising the matter and for things to be back at court for an urgent review – without the need for an EPO application.
Finally, an EPO can only last for 8 days, and can only be extended once for up to a further 7 days. There is no such restriction on a section 8 order. What happens when the EPO runs out?
It has been suggested to us that in some cases where a child is beyond parental control the making of an application for an EPO might be a useful vehicle for getting a reluctant local authority to react and offer some help or accommodation. But we think the circumstances where this is likely to be effective or helpful are going to be exceptional. If a parent cannot safely cope with a child who is beyond their control they may ask a local authority to accommodate the child under section 20 of The Children Act and the local authority will have a duty to do so. An EPO should not be necessary in any event as an order placing the child in the care of the person applying – which here would be the parent who is struggling to cope! A parent who is struggling to safely manage the care of a child who is beyond parental control should ask for help from social services and if not satisfied seek legal advice. If a local authority is not meeting its legal duties to a child in need it may be possible to judicially review them, and public funding may be available. We think a parent in this situation should first seek legal advice about all their available options before going down this unconventional path.
What will the court think if I apply?
Again, we’re making some general predictions here and can’t speak for individual judges or court staff. We have to make predictions, because as Researching Reform point out – parents never make these applications (or if they do it is very rare).
In a private law case we think it is likely that applying for an EPO will slow down the process of getting an order to secure the safety of a child. Although a parent is entitled to make an EPO application, court staff will be unfamiliar with seeing this application from a parent and may well refuse to issue it, thinking the parent can’t apply. They would be wrong to do so, but this is a hassle that you don’t need and an application for a Child Arrangements Order will in most cases do the same job without that hassle.
The judge also may need some persuading that s/he can make the order, but a quick look at section 44 will set them right. However, just as we’ve asked the question not just of whether you can apply but also whether you should apply for an EPO, the judge must ask herself not just whether they can make an EPO but whether they should. We think that in most cases a judge is likely to take the view that if a child arrangements order can do the job (which it can) there would be no need or justification for making an EPO instead. An EPO is likely to be seen as a rather heavy handed and confrontational way of dealing with a dispute between parents and this may not be the impression that you want to create at the start of a court case. A court dealing on an emergency basis with an application to move a child from one parent to the other with limited information – and possibly with only one parent present – will want to balance the need to make sure the child is safe with the need to avoid raising the temperature any higher than necessary, and with the need to ensure that any order that is made does not prejudice one party in the longer term or give the impression of a “win” for one side over the other. In the worst case scenario an application for an EPO could be impactful on your case in all the wrong ways – you could look like a bully. This is a risk with any emergency application, particularly where you come to court without telling the other person first, but it certainly isn’t going to be helped by making an application usually only made by social services.
Whatever type of emergency order is applied for there are potential long term consequences for the whole family. Once proceedings are begun, the court has control until the case is concluded. An application which is made too hastily either because it is malicious or tactical or because a parent is shown after to have been simply over anxious may have a lasting impact on the future direction of a case. It is always worth seeking advice from an experienced lawyer before jumping into this sort of application, unless of course matters are simply so urgent that things cannot wait.
Finally, legal aid may be available for a section 8 application where there is a real risk to a child – we do not think it is available for an EPO.
In a public law case the parents will have legal aid and can ask their lawyer to bring matters back to court anyway to raise their concerns. A parent is unlikely to persuade their lawyer that an EPO application is the right application to make in most cases, and a parent who decides to issue their own application is likely to raise concern that they are struggling to focus on the court’s main concern – whether they themselves pose a risk to the child and whether they can make changes to reduce those risks – and seeking to deflect attention and blame elsewhere.
Parents often do have concerns about the care given to their child by social services and they are entitled to raise those concerns. Whilst the case is still in court it is relatively easy to get these issues raised and to get the court to consider things, with the help of the lawyer representing you. It is perfectly acceptable to instruct your lawyer that you wish to raise these concerns in writing with all the parties and the IRO and if no satisfactory answer is forthcoming to ask for the lawyer to raise the matter at the next hearing, and to make an application fro the case to come back early if justified.
Every case is different, and it is possible that there are scenarios where an EPO will be the right way to go. But we think it is right that parents considering this step understand it is not straightforward or risk free, and is a serious thing to be doing.
If there is any advantage of EPOs that we’ve missed here, or any particular scenario where they would be just the trick – please let us know through the comments facility.
Feature Pic : P J Richey on Flickr (Creative Commons – thanks)