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Emergency Protection Orders - an important judgment

The link is to BAILII and a judgement (EWHC (Fam), 2006 510) relating to a case where a 9 year old child was taken into care under an Emergency Protection Order when there was found to be no good reason for this when it came to the final court hearing.

In this case the Social Work Team Manager did considerable harm to the girl and the parents by taking her into care when it was wrong to do so. The conclusion of the judgment is:

Emergency Protection Orders: good practice guidance

For ease of reference I will now draw together the observations I have made with some additional guidance:

a) The 14 key points made by Munby J in X Council v B should be copied and made available to the justices hearing an EPO on each and every occasion such an application is made;
b) It is the duty of the applicant for an EPO to ensure that the X Council v B guidance is brought to the court's attention of the bench;
c) Mere lack of information or a need for assessment can never of themselves establish the existence of a genuine emergency sufficient to justify an EPO. The proper course in such a case is to consider application for a Child Assessment Order or issuing s 31 proceedings and seeking the court's directions under s 38(6) for assessment;
d) Evidence given to the justices should come from the best available source. In most cases this will be from the social worker with direct knowledge of the case;
e) Where there has been a case conference with respect to the child, the most recent case conference minutes should be produced to the court;
f) Where the application is made without notice, if possible the applicant should be represented by a lawyer, whose duties will include ensuring that the court understands the legal criteria required both for an EPO and for an application without notice;
g) The applicant must ensure that as full a note as possible of the hearing is prepared and given to the child's parents at the earliest possible opportunity;
h) Unless it is impossible to do so, every without notice hearing should either be tape-recorded or be recorded in writing by a full note being taken by a dedicated note taker who has no other role (such as clerk) to play in the hearing;
i) When the matter is before the court at the first 'on notice' hearing, the court should ensure that the parents have received a copy of the clerk's notes of the EPO hearing together with a copy of any material submitted to the court and a copy of the justices' reasons;
j) Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without notice;
k) Cases of sexual abuse where the allegations are inchoate and non-specific, and where there is no evidence of immediate risk of harm to the child, will rarely warrant an EPO;
l) Cases of fabricated or induced illness, where there is no medical evidence of immediate risk of direct physical harm to the child, will rarely warrant an EPO;
m) Justices faced with an EPO application in a case of emotional abuse, non specific allegations of sexual abuse and/or fabricated or induced illness, should actively consider refusing the EPO application on the basis that the local authority should then issue an application for an interim care order. Once an application for an ICO has been issued in such a case, it is likely that justices will consider that it should immediately be transferred up for determination by a county court or the High Court;
n) The requirement that justices give detailed findings and reasons applies as much to an EPO application as it does to any other application. In a case of urgency, the decision may be announced and the order made with the detailed reasons prepared thereafter;
o) Where an application is made without notice, there is a need for the court to determine whether or not the hearing should proceed on a without notice basis (and to give reasons for that decision) independently of any subsequent decision upon the substantive EPO application.

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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

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