Emergency Protection of Children: Legal Framework and Implications, Study notes of Law

Download Emergency Protection of Children: Legal Framework and Implications and more Study notes Law in PDF only on Docsity! Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 1 Care Proceedings: Removal of Children at the Interim Stage 19th January 2012 Amelioration of Risk: Emergency Protection Orders and Police Protection Orders Paper produced and presented by Smita Shah, Barrister at Garden Court Chambers I INTRODUCTION 1. The statutory provisions which govern the granting of Emergency Protection Orders (EPO'S) and the exercise of Police Protection powers provide for a process which do not strait jacket the aims of this part of the Children Act 1989, the aim being that the 'a quick but temporary response to a child protection crisis, using limited court procedures, which require less preparation that care proceedings and empower the applicant to remove the children'1 2. Prior to the enactment of EPO's in the Children Act 1989, Place Of Safety Orders were routinely used in the 1970's and 1980's, allowed for the Magistrates court to order the temporary removal of children from their parents for up to 28 days. As a result of the Cleveland scandal, when 300 such orders were obtained during 7 months of intense and controversial child protection activity around allegations of sexual abuse, they were subject to much criticism in the Cleveland Inquiry 1987 which followed. Therefore as Masson points out, unsurprisingly, against this backdrop the creation of EPO's and Police Protection Order's (PPO) were some of the most contentious parts of the Children Act 1989. 3. This paper is called the amelioration of risk in recognition of the competing aims at the heart of PPO's and EPO's and subsequent judicial guidance, to act and prevent harm in an emergency while ensuring effective oversight to prevent injustice from an unwarranted removal or action. 4. This paper is going to look at PPO's, EPO's, the interplay between both and provide a reality check. Appendix A contains the relevant statutory provisions of the Children Act 1989 and Appendix B are the relevant judicial guidance extracted into a table format so that 1 At page 8, MASSON ET AL (2004) 'EPO Court orders for child protection crisis' Warwick University, School of law: Warwick. Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 2 they can be cut out and taken along to court when dealing with a EPO application, as per McFarlane's J' (as he was then) guidance! II POLICE PROTECTION ORDERS2 5. s. 46 of the Children Act 1989 empowers a police officer to take a child into police protection without the need for a court order. They may do so for up to 72 hours3. 6. Detailed guidance to the police can be found in The Duties and Powers of the Police under the Children Act 1989, Home Office Circular 017/2008, while not legally binding Dyson LJ quoted its predecessor with approval at paragraph 41 in Langley v Liverpool City Council and Chief Constable of Merseyside Police [2005] EWCA Civ 1173; [2006] 1 FLR 342. 7. It is worth remembering the overall principles which govern the use of police protection, at paragraph 15 of the HO circular, ' police protection is an emergency power and should only be used when necessary, the principle being that wherever possible the decision to remove a child/children from a parent or carer should be made by the court.' 8. There relevant test is whether the police officer has reasonable cause to believe that a child would otherwise be likely to suffer significant harm if protective measures were not taken4. Not the belief of an ordinary, reasonable constable5. 9. The police officer may remove the child to suitable accommodation and keep him there, or take reasonable steps to ensure that he is not removed from any place that he is being accommodated6. 10. The statutory scheme provides for two principal police officers and places a variety of duties upon them. The first being the initiating officer, who exercised the protective power and secondly, the designated officer who must at least be of the rank of an Inspector; is 2 See pages 66-68 in MCFARLANE A. AND REARDON M. [2010] 'Child Care and Adoption Law: A Practical Guide' 2 nd Edition, Family Law: Bristol for a short and very helpful guide which this section relies on. 3 s.46(6) CA1989 4 s.46(1) CA 1989 5 At paragraph 6.95, page 333 in pages 332 – 337 in BEDDINGFIELD, D. [1998] 'The Child in Need: Children, the State and the Law' Jordan Family Law: UK 6 s.46(1)(a) and (b) CA 1989 Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 5 made and operates as a direction to any person who is in a position to so, to comply with any request to produce the child to the applicant16. 17. The child's welfare is the paramount consideration when deciding whether an order should be made, although the statutory check list need not apply17. 18. The court must be mindful of the 'no order principle' and must not make an order unless doing to would be better than making no order at all18. It must either make the EPO or refuse to make it. The family courts lack jurisdiction to make EPO's or orders under the inherent jurisdiction for the unborn child. There is however jurisdiction for declaratory relief as to the lawfulness or otherwise of proposed emergency action with respect to a child at the very moment of birth, such a course is not only draconian but a highly exceptional course of conduct. See Re D (Unborn Baby) [2009] EWHC 446 (Fam); [2009] 2 FLR 313 as to the lawfulness of withholding the pre-birth plan to the Mother where the experts deemed that if she were informed of the plan for removal she would cause significant harm to herself, the unborn baby and possibly others. 19. An application for an EPO does not fall within the definition of 'family proceedings', and therefore unlike in other such proceedings the court cannot make any other orders19. 20. The EPO can last up to 8 days20 with one extension for a further period of 7 days21. s. 45 (2) Children Act 1989 sets out the provisions for public holidays and weekends, in which case the order will expire on the next working day at noon. If the child was taken into police protection using a PPO and the designated officer decides to apply for an EPO, with or without informing the local authority, then the EPO runs from the date the child was received into police protection. 21. The Emergency Protection Order (Transfer of Responsibilities) Regulations 1991/1414 came into force on 14/10/91 enable a local authority to take over an EPO made to another local authority or by a designated officer after which they are deemed to have made the application. It also sets out the criteria for transfer of responsibility between local authorities for an EPO, for example, local authority, find the child within their area, they apply and obtain the EPO, the local authority who may already be aware of the child and working with 16 s.44 (4) (a) and (b) Children Act 1989 17 s. 1(1) Children Act 1989 and s.1(4) Children Act 1989. 18 s.1 95) Children Act 1989 19 s.8(4) Children Act 1989 20 s. 45(1) Children Act 1989 21 s.45(5) Children Act 1989 Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 1 Care Proceedings: Removal of Children at the Interim Stage 19th January 2012 Amelioration of Risk: Emergency Protection Orders and Police Protection Orders Paper produced and presented by Smita Shah, Barrister at Garden Court Chambers I INTRODUCTION 1. The statutory provisions which govern the granting of Emergency Protection Orders (EPO'S) and the exercise of Police Protection powers provide for a process which do not strait jacket the aims of this part of the Children Act 1989, the aim being that the 'a quick but temporary response to a child protection crisis, using limited court procedures, which require less preparation that care proceedings and empower the applicant to remove the children'1 2. Prior to the enactment of EPO's in the Children Act 1989, Place Of Safety Orders were routinely used in the 1970's and 1980's, allowed for the Magistrates court to order the temporary removal of children from their parents for up to 28 days. As a result of the Cleveland scandal, when 300 such orders were obtained during 7 months of intense and controversial child protection activity around allegations of sexual abuse, they were subject to much criticism in the Cleveland Inquiry 1987 which followed. Therefore as Masson points out, unsurprisingly, against this backdrop the creation of EPO's and Police Protection Order's (PPO) were some of the most contentious parts of the Children Act 1989. 3. This paper is called the amelioration of risk in recognition of the competing aims at the heart of PPO's and EPO's and subsequent judicial guidance, to act and prevent harm in an emergency while ensuring effective oversight to prevent injustice from an unwarranted removal or action. 4. This paper is going to look at PPO's, EPO's, the interplay between both and provide a reality check. Appendix A contains the relevant statutory provisions of the Children Act 1989 and Appendix B are the relevant judicial guidance extracted into a table format so that 1 At page 8, MASSON ET AL (2004) 'EPO Court orders for child protection crisis' Warwick University, School of law: Warwick. Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 2 they can be cut out and taken along to court when dealing with a EPO application, as per McFarlane's J' (as he was then) guidance! II POLICE PROTECTION ORDERS2 5. s. 46 of the Children Act 1989 empowers a police officer to take a child into police protection without the need for a court order. They may do so for up to 72 hours3. 6. Detailed guidance to the police can be found in The Duties and Powers of the Police under the Children Act 1989, Home Office Circular 017/2008, while not legally binding Dyson LJ quoted its predecessor with approval at paragraph 41 in Langley v Liverpool City Council and Chief Constable of Merseyside Police [2005] EWCA Civ 1173; [2006] 1 FLR 342. 7. It is worth remembering the overall principles which govern the use of police protection, at paragraph 15 of the HO circular, ' police protection is an emergency power and should only be used when necessary, the principle being that wherever possible the decision to remove a child/children from a parent or carer should be made by the court.' 8. There relevant test is whether the police officer has reasonable cause to believe that a child would otherwise be likely to suffer significant harm if protective measures were not taken4. Not the belief of an ordinary, reasonable constable5. 9. The police officer may remove the child to suitable accommodation and keep him there, or take reasonable steps to ensure that he is not removed from any place that he is being accommodated6. 10. The statutory scheme provides for two principal police officers and places a variety of duties upon them. The first being the initiating officer, who exercised the protective power and secondly, the designated officer who must at least be of the rank of an Inspector; is 2 See pages 66-68 in MCFARLANE A. AND REARDON M. [2010] 'Child Care and Adoption Law: A Practical Guide' 2 nd Edition, Family Law: Bristol for a short and very helpful guide which this section relies on. 3 s.46(6) CA1989 4 s.46(1) CA 1989 5 At paragraph 6.95, page 333 in pages 332 – 337 in BEDDINGFIELD, D. [1998] 'The Child in Need: Children, the State and the Law' Jordan Family Law: UK 6 s.46(1)(a) and (b) CA 1989 Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 5 made and operates as a direction to any person who is in a position to so, to comply with any request to produce the child to the applicant16. 17. The child's welfare is the paramount consideration when deciding whether an order should be made, although the statutory check list need not apply17. 18. The court must be mindful of the 'no order principle' and must not make an order unless doing to would be better than making no order at all18. It must either make the EPO or refuse to make it. The family courts lack jurisdiction to make EPO's or orders under the inherent jurisdiction for the unborn child. There is however jurisdiction for declaratory relief as to the lawfulness or otherwise of proposed emergency action with respect to a child at the very moment of birth, such a course is not only draconian but a highly exceptional course of conduct. See Re D (Unborn Baby) [2009] EWHC 446 (Fam); [2009] 2 FLR 313 as to the lawfulness of withholding the pre-birth plan to the Mother where the experts deemed that if she were informed of the plan for removal she would cause significant harm to herself, the unborn baby and possibly others. 19. An application for an EPO does not fall within the definition of 'family proceedings', and therefore unlike in other such proceedings the court cannot make any other orders19. 20. The EPO can last up to 8 days20 with one extension for a further period of 7 days21. s. 45 (2) Children Act 1989 sets out the provisions for public holidays and weekends, in which case the order will expire on the next working day at noon. If the child was taken into police protection using a PPO and the designated officer decides to apply for an EPO, with or without informing the local authority, then the EPO runs from the date the child was received into police protection. 21. The Emergency Protection Order (Transfer of Responsibilities) Regulations 1991/1414 came into force on 14/10/91 enable a local authority to take over an EPO made to another local authority or by a designated officer after which they are deemed to have made the application. It also sets out the criteria for transfer of responsibility between local authorities for an EPO, for example, local authority, find the child within their area, they apply and obtain the EPO, the local authority who may already be aware of the child and working with 16 s.44 (4) (a) and (b) Children Act 1989 17 s. 1(1) Children Act 1989 and s.1(4) Children Act 1989. 18 s.1 95) Children Act 1989 19 s.8(4) Children Act 1989 20 s. 45(1) Children Act 1989 21 s.45(5) Children Act 1989 Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 6 the family can then take over the EPO, the process is set out the process in rule 3 of the regulation, which include elements of the welfare checklist, that the local authority seeking to take over the EPO must notify the court, applicants who made the order and those who received notice. 22. s.44 (10) Children Act 1989 states that when it appears to the applicant that it is safe to return the child, they must do so immediately, notwithstanding if the order has yet to expire. It is evident from this provision that there must be continued oversight, evaluation of risk and processes in place for this. 23. The application is made at the FPC, unless there are ongoing proceedings concerning the child to be subject to the order which are in the High Court or County Court and arise out of the same circumstances. 24. The applicant may be, an 'authorised officer' of the local authority, on behalf of the local authority, usually a senior social worker, an 'authorised person' meaning an officer of the NSPCC or any person so authorised by the Secretary of State, a 'designated' police officer and any other person. In reality they are usually the police or social workers22. The decision to seek an EPO may be made after a multi-agency strategy discussion between the local authority, police, schools and healthcare workers. 25. Applications should normally be made on from C1 with Supplement C11. The strict rules of evidence do not apply, the court can take account of any oral evidence, or statement contained in any report made to the court, in the course of or in connection with the hearing, if it consider it to be relevant to the application23. 26. The application can be made on notice, of one day. An application may only be withdrawn with leave of the court. 27. Applicants to an EPO are in two categories, those who are automatic and entitled to see the papers and those who are only required to have notice but not the application itself. Automatic respondents are every person with PR or who had PR prior to the making of a care order and the child. Those who can be given notice are every person who is a parent, local authority providing accommodation for the child, any person with whom the child is living with at the time for example foster carers and where the child is alleged to be staying in a refuge. Without notice applications 22 s.44 (1) and (2) Children Act 1989 23 s.45(7) Children Act 1989. Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 7 26. Applications can be made without notice; in the FPC leave is required to do so, usually at a request to the Justices Clerk, it is open to the court to refuse to make an application without notice and to list it for an on notice hearing. 27. They should only be made in wholly exceptional circumstances justified by genuine emergency or the need for extreme urgency or where there are compelling reasons for believing the child's welfare would be compromised by giving notice. 28. Two guideline cases to consider, Munby J's 14 points, which can be found at Appendix B, in X Council v B and others (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005] 1 FLR 341. What is noteworthy and often overlooked in this case is that there was no threshold agreement or findings. Once the children were removed under EPO's the proceedings took a life of their own and at their conclusion with the children returned home, the parties agree to a preamble which set out that the Local Authority felt threshold had been met, the parents did not and the local authority withdrew its application for care orders. At paragraph 34 Munby J quotes P.C and S v United Kingdom (2002) 35 EHRR 31, 2 FLR 631, he states, ' An EPO, summarily removing a child from his parents, is a terrible and drastic remedy. The European Court of Human Rights has rightly stressed [in the above case] that such as a remedy is 'draconian' and 'extremely harsh' measure requiring 'exceptional justification' and 'extraordinarily compelling reasons'. However that the emergency removal of children is in principle entirely compatible with the Convention and moreover there may be cases where without notice applications are justified. [see paragraph 35]. 29. Munby J in the course of judgment highlights a lack of accountability mechanisms such as no right of appeal, bars on discharge applications, and difficulties with judicial review that make it incumbent upon the FPC and the local authority to get it right at application. [see paragraph 41]. 30. There is a continuous duty to asses the impact of the proposed care measure/s and the alternatives upon the local authority, once removal has been affected, the scrutiny is an ongoing process and as soon as the risk or danger has dissipated, the child must be returned to their family. That removal entails a test of 'necessity' and 'imminent danger' as per Johansen v Norway (1996) 23 EHRR 33; further that Article 8 imposes positive obligations on the local authority to respect the right to family life as per Hokkanen v Finland (1994) 19 EHRR 139. It is within this legal framework that Munby J then places the statutory scheme for EPO’s under investigation and enumerates his 14 points (which are set out in Appendix B). Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 10 1 b) To authorise the applicant to search for another child on the premises and if another child is found, to remove the child provided the common ground for the making of an EPO exists31. c) To require any other person to disclose information about the whereabouts of the child32. d) To issue a warrant to authorise a police constable to assist the applicant and for the officer to be accompanied by a doctor, nurse or health visitor33. e) To direct that a doctor, nurse or health visitor accompany the applicant when giving effect to the EPO34. f) Directions with respect to medical or psychiatric examination of the child35. However it must be noted that a Gillick competent child may refuse to submit to such an examination. g) Directions with respect to contact with any named persons36. The local authority must allow reasonable contact with the child's parent, anyone with parental responsibility and with anyone to whom orders exist under s.8 and s.34 Children Act 1989. Detailed care plans are not required at this stage and therefore contact will need to clarified at court, if no contact or limited contact is proposed a direction should be sought to this affect h) An exclusion requirement, requiring a named person to leave the home where the child is living37. The court can make directions to exclude someone if they believe that to do so that the child living there would cease to suffer or likely to suffer significant harm, another person in the dwelling has given their permission for the exclusion and is able to look after the child38. Undertakings can be offered and if the child is subsequently removed the local authority have to notify the person excluded if the removal is longer than 24 hours, at which point the exclusion not longer applies. A power of arrest can be attached the usual caveats and safeguards apply to these. 31 s.48(4) and (5) Children Act 1989 32 s.48(1) Children Act 1989 33 s.48(9) and (11) Children Act 1989. 34 s.45(12) Children Act 1989 35 s. 44(6)(b) Children Act 1989 36 s.44(6)(a) Children Act 1989 37 s.44A and S44B Children Act 1989. 38 s.44A(1) Children Act 1989 Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 11 1 Remedies 28. Remedies are extremely limited. 29. Only the child, parent/s of the child, any person with parental responsibility and any person with whom the child was living with can apply to discharge the EPO39. If a person has been given notice and does not attend, they lose the right to apply to discharge the EPO40. This may include where their lawyers attend and simply take a note. 30. There is no right of appeal against the making of an order, refusal to make an order, extension or refusal to extend an order, directions made or refused and decision to adjourn41. 31. Avenues for judicial review are precarious and fraught with difficulties. Two case illustrate the point; in Re M(CAre proceedings: Judicial Review)[2003] EWHC 850 (Admin): [2003] 2 FLR 171, Munby J held that JR was an inappropriate mechanism to challenge what could normally be challenged in the course of care proceedings (and held that habeas corpus was not available as the act of removal and placing into care did not amount to detention, save for secure accommodation orders) and contrast to the now (in)famous R (G) v Nottingham City Council [2008] EWHC 152 (Admin); [2008] 1 FLR 1660 in which the removal by professionals without the 18 year old mother's permission or court orders was affected. Munby J, deeply unimpressed, ' no baby, no child, can be removed simply 'as a result of a decision taken by officials in some room'. [at paragraph 18]. In pre-existing judicial review proceedings for the mother pathway plans, her lawyers are able to take advantage of the fact that the court is already seized of the matter to seek urgent assistance. He grants declaratory relief and makes a carefully worded order which does not seek to interfere with the lawful exercise of police powers under s.46 where necessary nor the local authority from applying for court orders, rather to affect the reunification, immediately of mother and child.[at paragraph 30.]. 32. Both Munby J and McFarlane note the lack of avenues of relief or appeal as does Davies in her article in 2007 on EPO's, she recommends that statute or rules be amended to reflect that EPO applications are to make explicit reference to the restriction that such applications are restricted cases of real and imminent danger, make provisions to transfer EPO's to higher courts, introduce appeal provisions, remove unfair restrictions on discharge 39 s.45(11) and (8) Children Act 1989 40 S45(11) Children Act 1989. 41 s.45(11) Children Act 1989 Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 12 1 applications, reduce the time for service and ensure service of a transcript of proceedings is served on the parents regardless of notice42. As will be discussed further on, and remains an ongoing theme in this paper, the tension between competing aims of safeguarding child welfare and the real risk of injustice, remain palpable, whether in the court or on the ground where such decisions need to be made. IV THE THIS BLUE LINE BETWEEN EPO'S AND PPO'S 17. Can the police exercise their powers under s46 Children Act 1989 if there is an EPO already in place? The simply answer is yes, although the route to the answer was long and troublesome in Langley v Liverpool City Council and Chief Constable of Merseyside Police [2005] EWCA Civ 1173; [2006] 1 FLR 342 where the Court of Appeal through the judgment of Dyson LJ. 18. The facts and how the court delivered the definitive guidance on the interplay between s 46 and s.44 Children Act 1989 are not exceptional, however the consequences for the children, their parents and ultimately the Local Authority and Police force concerned were serious, with a finding that in the absence of compelling reasons, if the police remove a child in reliance upon s.46 Children Act 1989 when they know an EPO is in force may be in breach of article 8 of the ECHR. The Facts 19. The family in question were known to the Local Authority for some time, the Father was registered blind, suffering from Usher's Syndrome which gave him tunnel vision and night blindness; and all members of the family save for child C (then the youngest child) were profoundly deaf. At the material time all three children of the family, J (then aged 9 years), J (the aged 5 years) and C (then aged almost 4 years) were on the Child Protection Register. One particular concern, amongst other, was that the Father persisted in driving a car with the children as passengers despite not having a valid driving license and giving assurances to the professionals that he would not do so. The social services were on the cusp of initiating legal proceedings. 20. In late September 2001 the Father, accompanied by the Mother and three children drove a Ranger Rover from Liverpool to Derby, with a view to dropping the two eldest children off to 42 At page 732 in DAVIS 'Protecting Children in an emergency – the getting the balance right' Fam. Law(2007) Vol 37 August, pages 727 – 732 Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 15 1 Authority were entitled to execute it, it was ultimately the manner of execution which was unlawful. The lesson to take away is seek all appropriate directions at the time of obtaining an order, including where necessary, proportionate and justified, a warrant for the police. 26. This judgment is further supported by the statutory guidance to the police in the latest Home Office Circular at paragraph 15 which has been quoted above in the section regarding PPO and paragraph 16 which states, ' All Local Authorities should have in place local arrangements (through their local Chief Executive and Clerks to the Justices) whereby out of hours applications for Emergency Protection Orders . . . may be made speedily and without n excess of bureaucracy. Police protection powers should only be used when this is not possible.43' 27. To Local Authority's in Working Together to Safeguard Children: A guide to Inter-Agency working to safeguard and promote the welfare of children (March 2010, Dept of Education) at paragraph 5.53, ' Police powers should only be used in exceptional circumstances where there is insufficient time to seek an EPO for the reasons relating to the immediate safety of a child'. 28. In 2010 A v East Sussex County Council and Chief Constable of Sussex Police [2010] EWCA Civ. 743 explored this further, again this was a case where a claim for damages against an alleged wrongful removal was made against the Local Authority and Police. A young Mother of 22 and troubled background brought her two month old baby to the hospital on 22nd December 2008 to report that it had stopped breathing. As the hospital prepared to discharge the mother, they grew concerned that she reported two further such incidences, not observed by others. The consultant notified Social services, on 29th December the baby was removed using s.46 Children Act 1989 PPO. At an inter-partes hearing on 31st December the mother agreed to go into a mother and baby unit. The assessment was positive, mother returned home with the baby and proceedings were discontinued. The child had been ready for discharge on 24th December, matters came to a head when the Consultant grew concerned and the mother wanted to take her baby home. 29. Hedley J outlines the choices were voluntary accommodation, a PPO or an EPO. He cites both the Munby J and McFarlane J guidelines with approval and feels the essential question was this, the strength of the case for an EPO (or use of any emergency power) would greatly depend upon the evaluation of risk of harm as made by the medical consultant.[at paragraph 12]. The strategy meeting was told that the mother was being 43 The Duties and Powers of the Police under the Children Act 1989, Home Office Circular 017/2008 Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 16 1 'unco-operative', this amounted to her wish to take her baby home with only family support or supervision, and she had 'kicked off' and made threat to take her baby. 30. Hedley J found that the circuit judge dealing with the case assessed the evidence based on what the decision-makers knew (and should have reasonably known) at the time that they had to make decisions [at paragraph 15]. Hedley J further found that there was no suggestion that the consultant had acted in anything other than a responsible and competent manner. While he reiterates the desirability of using s 44 rather than s.46, promoting the least interventionist path, working with parents in partnership, keeping everyone appraised of developments and plans, removal to a known person rather than a stranger he does make the following point, ' sadly the experiences of the appellant simply illustrate the truth that viable child protection procedures in any society will sometimes inflict what turns out to have been unnecessary distress on families. That does not make them or the exercise of them thereby unlawful'. [at paragraph 21]. 31. Where does this leave us? Time for a reality check. V REALITY CHECK 32. So called because by now it will be clear to those working in child protection, be they social worker, police or lawyers that the statutory provisions and the learned judgements albeit, few and far between from our higher courts do not marry up with the daily grind of such applications in the magistrates court and exercise of such powers by the police. Two academic studies have attempted to examine this disparity between the law and implementation on the ground. 33. The first piece of research which looked at the use of EPO’s was lead by Professor Judith Masson entitled 'EPO Court orders for child protection crisis'(2004) University of Warwick. The study methodology included telephone interviews with magistrates' legal advisers in magistrate courts committee are in England and a detailed analysis of all applications for EPO's during 12 months in three magistrates’ courts committee areas, covering 6 local Authorities44. Further information came from interviews with magistrates, court clerks, local authority lawyers, social worker, children's guardian and solicitors in private practice. The asked how widespread was the practice criticised of in X Council by Munby J and whether matters would be improved if the guidance in X Council were followed. 44 At page 882 in MASSON 'Emergency Protection, good practice and human rights' Fam. Law (2004) No. 34 December, pages 882-887. The full study is MASSON ET AL (2004) 'EPO Court orders for child protection crisis' Warwick University, School of law: Warwick. Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 17 1 34. The second piece of research was again by Professor Judith Masson and funded in part by the NSPCC and Nuffield Foundation called ‘Protecting Powers: Emergency Intervention for Children's protection (2007)45. This study looked at the dual use of PPO's and EPO's between 1998 and 2004. 35. The first study found that EPO's were granted without notice where there was a risk that the parent could disappear of harm the child (19 out of 86 cases), in only 3 cases did the children remain at home with the parents pending an on notice hearing the next day. More commonly the child's immediate protection was secured through a PPO or the EPO was heard on the day of the application with clerk agreeing to abridge notice (in 13 out of 86 cases). Children's Guardians were appointed in 34 cases in the study and children were far less likely to be represented by a solicitor or children's guardian if the application was without notice. The courts practice of listing a review hearing was uncommon. Additionally none of the parents whose children were subject to a without notice hearing requested one in (25 out of 86 cases). The reasons the study found were unclear, but the solicitors who represented parents were generally very pessimistic about the chances of challenging an EPO successfully46. For many advising parents, the key is often waiting to see what the strength of the case is against them. If the EPO leads to an interim care order (ICO), it become significantly harder to challenge the emerging status quo and what is now deemed a neutral holding position. 36. For those representing children, their concern will be minimising the number of placement moves and preserving stability for the child/ren in question. 37. For the local authority, it may be reliant and awaiting evidence from other statutory agencies such as schools, healthcare professionals and the police. 38. The study found in two cases the court granted a short EPO with the onus on the Local Authority to ask for an extension rather than placing the onus on parents to challenge a without notice application, however two thirds of the without notice EPO's were granted for the full 8 days. 45 MASSON ' Emergency Protection: the impact of court control on safeguarding children' Fam. Law (2010) No. 40 October, pages 1088-1093, the full study can be found at MASSON et all (2007) 'Protecting Powers: Emergency Intervention for Children's protection' Wiley: Chichester. http://www.nspcc.org.uk/Inform/research/findings/researchfindings_wda48259.html#2007 46 At page 884-5, in MASSON 'Emergency Protection, good practice and human rights' Fam. Law (2004) No. 34 December, pages 882-887. Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 20 2 how, certainly in England and Wales, child protection policy and guidance remains reactionary, to sensational cases that cause public outrage. 46. At the heart of emergency protective measures is the unquantifiable, what level of risk is acceptable? For local authorities it is about ameliorating risk, how can the risk faced be improved upon, minimised and contained, the easiest way to do so is removal to care outside of the family where the local authority retain overall control. Given the criticisms following the death of Victoria Climbe, this is understandable. 47. The reality for children and their families is that an application for an EPO is likely to be for removal and this will undoubtedly set the tone and chain of events for subsequent care proceedings to follow. Lawyers for parents will be cautious in rushing to challenge ICO's, particularly in made following EPO's, and particularly at the early evidence gathering and pre-assessment stage. 48. This perhaps is the key, that EPO's cannot be challenged, even if obtained on inaccurate, misleading and suspect evidence, this then forms the basis for an ICO. A challenge at this stage encounters arguments that a move likely to disrupt the child and cause more distress if subsequently removed again and that the child may be returned to a potentially risky environment. 49. The original criteria for urgent removal are no longer relevant as the case is about ongoing removal with the ICO being a neutral holding position. This shift in emphasis makes it impossible to overturn the previous EPO improperly obtained or unlawfully executed unless before a proactive judge with an inquiring mind; which is, it is submitted unlikely to be the lay bench that granted the original EPO. Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 21 2 BIBLIOGRAPHY Legislation and Regulations Children Act 1989, s. 44, 44A, 44B, 45, 46 and 48. Emergency Protection Order (Transfer of Responsibilities) Regulations 1991/1414, came into force on 14/10/91, http://www.legislation.gov.uk/uksi/1991/1414/contents/made Statutory Guidance The Children Act 1989 Guidance and Regulation, Vol. 1, Court Orders , https://www.education.gov.uk/publications/standard/publicationDetail/Page1/DCSF-10500- 2008 Working Together to Safeguard Children: A Guide to Inter-Agency working to safeguard and promote the welfare of children. (March 2010, Dept Children, School and Families, HM Government), https://www.education.gov.uk/publications/standard/publicationdetail/page1/DCSF-00305- 2010 The Duties and Powers of the Police under the Children Act 1989, Home Office Circular 017/2008, http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-office- circulars/circulars-2008/017-2008/ Cases A v East Sussex County Council and Chief Constable of Sussex Police [2010] EWCA Civ. 743 Re D (Unborn Baby) [2009] EWHC 446 (Fam); [2009] 2 FLR 313 R (G) v Nottingham City Council [2008] EWHC 152 (Admin); [2008] 1 FLR 1660 Langley v Liverpool City Council and Chief Constable of Merseyside Police [2005] EWCA Civ 1173; [2006] 1 FLR 342 RE X (Emergency Protection Orders) [2006] EWHC 520 (Fam); [2006] 2 FLR 701 X Council v B and others (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005] 1 FLR 341 Books and Articles pages 66- 77 in MCFARLANE A. AND REARDON M. [2010] 'Child Care and Adoption Law: A Practical Guide' 2nd Edition, Family Law: Bristol pages 342-358 in WHITE, CARR AND LOWE [2008] 'The Children Act in Practice' 4th Edition, LexisNexis:London Section 2 Protection Provisions in HERSHMAN AND MCFARLANE 'Children Law and Practice' Jordans Family Law pages 332 – 337 in BEDDINGFIELD, D. [1998] 'The Child in Need: Children, the State and the Law' Jordan Family Law: UK Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 22 2 pages 621 – 632 in PREST AND WILDBLOOD QC, [2008] 'Family Law Case Library – Children' Jordans Family Law: UK GARTLAND 'Unnecessary Distress: Legal Update Specialist' N.L.J (2010) Vol.160 No.7427, pages 1032-33. MASSON ' Emergency Protection: the impact of court control on safeguarding children' Fam. Law (2010) No. 40 October, pages 1088-1093 DAVIS 'Protecting Children in an emergency – the getting the balance right' Fam. Law(2007) Vol 37 August, pages 727 – 732 MASSON 'Emergency Protection, good practice and human rights' Fam. Law (2004) No. 34 December, pages 882-887. Academic Study MASSON ET AL (2004) 'EPO Court orders for child protection crisis' Warwick University, School of law: Warwick. http://www.nspcc.org.uk/inform/research/findings/researchfindings_wda48259.html MASSON et all (2007) 'Protecting Powers: Emergency Intervention for Children's protection' Wiley: Chichester. http://www.nspcc.org.uk/Inform/research/findings/researchfindings_wda48259.html#2007 Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 25 2 emergency protection order remains in force) if it appears to him that a change in the circumstances of the case makes it necessary for him to do so. (13)Where an emergency protection order has been made with respect to a child, the applicant shall, subject to any direction given under subsection (6), allow the child reasonable contact with— (a)his parents; (b)any person who is not a parent of his but who has parental responsibility for him; (c)any person with whom he was living immediately before the making of the order; (d)any person in whose favour a contact order is in force with respect to him; (e)any person who is allowed to have contact with the child by virtue of an order under section 34; and (f)any person acting on behalf of any of those persons. (14)Wherever it is reasonably practicable to do so, an emergency protection order shall name the child; and where it does not name him it shall describe him as clearly as possible. (15) A person shall be guilty of an offence if he intentionally obstructs any person exercising the power under subsection (4)(b) to remove, or prevent the removal of, a child. (16)A person guilty of an offence under subsection (15) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. S.44A Children Act 1989 44A Power to include exclusion requirement in emergency protection order.(1)Where— (a)on being satisfied as mentioned in section 44(1)(a), (b) or (c), the court makes an emergency protection order with respect to a child, and (b)the conditions mentioned in subsection (2) are satisfied, the court may include an exclusion requirement in the emergency protection order.(2)The conditions are— (a)that there is reasonable cause to believe that, if a person (“the relevant person”) is excluded from a dwelling-house in which the child lives, then— (i)in the case of an order made on the ground mentioned in section 44(1)(a), the child will not be likely to suffer significant harm, even though the child is not removed as mentioned in section 44(1)(a)(i) or does not remain as mentioned in section 44(1)(a)(ii), or (ii)in the case of an order made on the ground mentioned in paragraph (b) or (c) of section 44(1), the enquiries referred to in that paragraph will cease to be frustrated, and (b)that another person living in the dwelling-house (whether a parent of the child or some other person)— (i)is able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and (ii)consents to the inclusion of the exclusion requirement. (3)For the purposes of this section an exclusion requirement is any one or more of the following— (a)a provision requiring the relevant person to leave a dwelling-house in which he is living with the child, Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 26 2 (b)a provision prohibiting the relevant person from entering a dwelling-house in which the child lives, and (c)a provision excluding the relevant person from a defined area in which a dwelling-house in which the child lives is situated. (4)The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the order. (5)Where the court makes an emergency protection order containing an exclusion requirement, the court may attach a power of arrest to the exclusion requirement. (6)Where the court attaches a power of arrest to an exclusion requirement of an emergency protection order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement. (7)Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on one or more occasions) on an application to vary or discharge the emergency protection order. (8)Where a power of arrest is attached to an exclusion requirement of an emergency protection order by virtue of subsection (5), a constable may arrest without warrant any person whom he has reasonable cause to believe to be in breach of the requirement. (9)Sections 47(7), (11) and (12) and 48 of, and Schedule 5 to, the Family Law Act 1996 shall have effect in relation to a person arrested under subsection (8) of this section as they have effect in relation to a person arrested under section 47(6) of that Act. (10)If, while an emergency protection order containing an exclusion requirement is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the order shall cease to have effect in so far as it imposes the exclusion requirement.] s. 44B Children Act 1989 44B Undertakings relating to emergency protection orders.(1)In any case where the court has power to include an exclusion requirement in an emergency protection order, the court may accept an undertaking from the relevant person. (2)No power of arrest may be attached to any undertaking given under subsection (1). (3)An undertaking given to a court under subsection (1)— (a)shall be enforceable as if it were an order of the court, and (b)shall cease to have effect if, while it is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours. (4)This section has effect without prejudice to the powers of the High Court and county court apart from this section. (5)In this section “exclusion requirement” and “relevant person” have the same meaning as in section 44A. s. 45 Children Act 1989 Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 27 2 45 Duration of emergency protection orders and other supplemental provisions.(1)An emergency protection order shall have effect for such period, not exceeding eight days, as may be specified in the order. (2)Where— (a)the court making an emergency protection order would, but for this subsection, specify a period of eight days as the period for which the order is to have effect; but (b)the last of those eight days is a public holiday (that is to say, Christmas Day, Good Friday, a bank holiday or a Sunday), the court may specify a period which ends at noon on the first later day which is not such a holiday.(3)Where an emergency protection order is made on an application under section 46(7), the period of eight days mentioned in subsection (1) shall begin with the first day on which the child was taken into police protection under section 46. (4)Any person who— (a)has parental responsibility for a child as the result of an emergency protection order; and (b)is entitled to apply for a care order with respect to the child, may apply to the court for the period during which the emergency protection order is to have effect to be extended.(5)On an application under subsection (4) the court may extend the period during which the order is to have effect by such period, not exceeding seven days, as it thinks fit, but may do so only if it has reasonable cause to believe that the child concerned is likely to suffer significant harm if the order is not extended. (6)An emergency protection order may only be extended once. (7)Regardless of any enactment or rule of law which would otherwise prevent it from doing so, a court hearing an application for, or with respect to, an emergency protection order may take account of— (a)any statement contained in any report made to the court in the course of, or in connection with, the hearing; or (b)any evidence given during the hearing, which is, in the opinion of the court, relevant to the application.(8)Any of the following may apply to the court for an emergency protection order to be discharged— (a)the child; (b)a parent of his; (c)any person who is not a parent of his but who has parental responsibility for him; or (d)any person with whom he was living immediately before the making of the order. [F1(8A)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an emergency protection order may be varied or discharged by the court in so far as it imposes the exclusion requirement. (8B)Where a power of arrest has been attached to an exclusion requirement of an emergency protection order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).] (9)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 30 3 protection is in accommodation provided by, or on behalf of, the appropriate authority, subsection (10) shall have effect as if it referred to the authority rather than to the designated officer. Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 31 3 APPENDIX B Case Law Guidance Checklist to place before FPC upon application for EPO 14 point X Council Munby J Guidelines X Council v B and others (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005] 1 FLR 341 as per Munby J at 367, at para 57, [57] The matters I have just been considering are so important that it may be convenient if I summarise the most important points: i. An EPO, summarily removing a child from his parents, is a 'draconian' and 'extremely harsh' measure, requiring 'exceptional justification' and 'extraordinarily compelling reasons'. Such an order should not b made unless the FPC is satisfied that tit is both necessary and proportionate and that no other less radical form of order will achieve the essential en of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child safety: 'imminent danger' must be 'actually established'. ii. Both the local authority which seeks the EPO and the FPC which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and FPC approach every application for an EPO with an anxious awareness of the extreme gravity of the relief being sort and a scrupulous regard for the European Convention right of both the child and parents. iii. Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety. iv. If the real purpose of the local authority's application is to enable it to have the child assessed than consideration should be given to whether that objective cannot be equally effectively, and more proportionality, be achieved by an application for, or by the making of, a CAO under s.43 of the Children Act 1989. v. No EPO should ever be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte (without notice) application very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child's immediate safety. vi. The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinions must be supported by detailed evidence and properly articulated reasoning. vii. Save in wholly exceptional cases, parent must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying on. viii. Where the application for an EPO is made ex parte the local authority must make out a compelling case for applying without first giving the parents notice. An ex parte application will normally be appropriate only if the case is genuinely one of emergency or other great urgency – and even then it should normally be possible Paper produced by Smita Shah, Barrister, Garden Court Chambers Not to be reproduced in whole or part without permission – 19/01/12 32 3 to give some kind of informal notice to the parents – or if there are compelling reasons to believe that the child's welfare will be compromised if the parents are alerted in advance to what is going on. ix. The evidential burden on the local authority it even heavier if the application is made ex parte. Those who seek relief ex parte are under a duty to make the fullest and most candid and frank disclosure of all the relevant circumstances known to them. This duty is not confined to the material facts; it extends to all relevant matter, whether of fact or of law. x. Section 47(7)(b) of the Children Act 1989 permits the FPC to hear oral evidence. But it is important that those who are not present should nonetheless be able to know what oral evidence and other materials have been put before the FPC. It is therefore, particularly important that the FPC complies meticulously with the mandatory requirement of rr20, 21(5) and 21(6) of the Family Proceedings Court (Children Act 1989) Rules 1991. The FPC must 'keep a note of the substance of the oral evidence' and must also record in writing not merely it reasons but also any findings of fact. xi. The mere fact that the FPC is under the obligations imposed by rr 21(5), 21(6) and 21(8), is no reasons why the local authority should not immediately, on request, inform the parents of exactly what has gone on in their absence. Parents against whom an EPO is made ex parte are entitled to be given, if they ask, proper information as to what happened at the hearing and to be told, if they ask: (i)exactly what documents, bundles or other evidential materials are to be lodge with the FPC either before or during the course of the hearing; and (ii) what legal authorities were cited to the FPC. The local authority's legal representative should respond forthwith to any reasonable request from the parents or their legal representatives either for copies of the materials read by the FPC or for information about what took place at the hearing. It will, therefore, be prudent for those acting for the local authority in such a case to keep a proper note of the proceedings, lest they otherwise find themselves embarrassed by the proper request for information which they are unable to provide. xii. Section 44(5)(b) of the Children Act 1989 provides that the local authority may exercise its parental responsibility only in such a manner 'as is reasonably required to safeguard or promote the welfare of the child'. Section 44(5)(a) provides that the local authority shall exercise its power of removal under s44(4)(b)(i) 'only . . . in order to safeguard the welfare of the child'. The Local authority must apply its mind very carefully to whether removal is essential to secure the child's immediate safety. The mere fact that the local authority has obtained an EPO is not of itself enough. The FPC decides whether to make an EPO. But the local authority decides whether to remove. The local authority, even after it has obtained an EPO, is under an obligation to consider less drastic alternatives to emergency removal. Section 44(5) requires a process within the local authority whereby there is a further consideration of the action to be taken after an EPO has been obtained. Though no procedure is specified, it will obviously be prudent for local authorities to have in place procedures to ensure both that the required decision-making actually takes place and that it is appropriately documented. xiii. Consistently with the local authorities positive obligation under Art 8 to take appropriate action to reunite parent and child, ss44(10(a) an s44(11)(a) impose on the local authority a mandatory obligation to return a child who it had removed under ss44(b)(i) to the parent from whom the child was removed if 'it appears to [the local authority] that it is safe for the child to be returned.' This imposes on the