3.7 Immediate Protection

1. Overview

Where there is a risk to the life of a child or a likelihood of serious immediate harm, whether from inside or outside the home, the local authority, the police (including British Transport Police) or NSPCC should use their statutory child protection powers to act immediately to secure the safety of the child, as set out in Section 46 of Children Act 1989.

If it is necessary to remove a child from their home, a local authority must, wherever possible and unless a child’s safety is otherwise at immediate risk, apply for an Emergency Protection Order (EPO). Police powers to remove a child in an emergency should be used only in exceptional circumstances where there is insufficient time to seek an EPO or for reasons relating to the immediate safety of the child.

An EPO, made by the court, gives authority to remove a child, or prevent a child being removed from a hospital or other place the child is being accommodated, and places them under the protection of the applicant.

When considering whether emergency action is necessary, the local authority or the police should always consider the needs of other children in the same household or in the household of an alleged perpetrator.

The local authority in whose area a child is found in circumstances that require emergency action (the first authority) is responsible for taking emergency action. If the child is looked after by, or the subject of a child protection plan in another authority, the first authority must consult the authority responsible for the child. Only when the second local authority explicitly accepts responsibility (to be followed up in writing) is the first authority relieved of its responsibility to take emergency action.

2. Multi-Agency Working

Planned emergency action will normally take place following an immediate strategy discussion (see Strategy Discussions chapter). Social workers, the police or NSPCC should:

• initiate a strategy discussion to discuss planned emergency action. Where a single agency has to act immediately, a strategy discussion should take place as soon as possible after action has been taken;
• see the child (this should be done by a practitioner from the agency taking the emergency action) to decide how best to protect them and whether to seek an EPO;
• wherever possible, obtain legal advice before initiating legal action, in particular when an EPO is being sought.

3. Emergency Protection Orders

An Emergency Protection Order (EPO) enables the child to be removed from where they are, or to be kept where they are, if this is necessary to provide immediate short-term protection. Any person may apply for an EPO, although in practice the vast majority of applications are made by local authorities.

On receipt of an application, the court can only make an EPO if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if they:

• are not removed to accommodation provided by the applicant; or
• do not remain in the place in which the child is then being accommodated.

Where the applicant is the local authority or the NSPCC, an emergency protection order may also be made if enquiries (in the case of local authorities, made under section 47) are being frustrated by unreasonable refusal of access to the child, and the applicant has reasonable cause to believe that access is needed as a matter of urgency.

If there is a need for further investigation of the child’s health and development but they are not considered to be in immediate danger, then the local authority should apply for a child assessment order.

An EPO gives authority to the local authority to remove a child to accommodation provided by or on behalf of the applicant. It also confers upon the person in whose favour it is made (usually the local authority) limited parental responsibility for the child. That parental responsibility must only be exercised to the extent that is necessary to safeguard the child’s welfare. Applications for an EPO are a very serious step and the court must be satisfied that the EPO is both necessary and proportionate and that there is ‘no less radical form of order available’.

Its duration is limited to a maximum period of eight days, with a possible extension of up to a further seven days, to a maximum of 15 days. Applications to extend can be made by the original applicant, with the court being able to grant an extension if it has reasonable cause to believe that the child concerned is likely to suffer significant harm if the order is not extended. During the order the child must be permitted to have reasonable contact with their parents and other significant individuals, unless the court directs otherwise. The court may also give specific directions with regard to contact, and about medical or psychiatric examination or other assessment of the child.

The court can attach an exclusion requirement to an EPO which can exclude the relevant person from the home, and from a designated area around the home. A power of arrest can be attached to the exclusion requirement.

The court has the power to grant orders without notice being given to parents or on short notice, but will only consider applications without notice in high risk cases where the child’s safety would be endangered if the parents knew of the application, or for other reasons it is not possible to notify them.

When an EPO is in force and the applicant has removed the child, the applicant is under a duty to return the child to the care of their parents as soon as it is safe to do so, even if the order is still in force.

3.1 Powers to assist in discovery of children who may be in need of emergency protection

In situations where those looking after the child do not readily agree to hand the child over, the EPO provides a formal direction to any person who is in a position to do so to comply with any request to produce the child to the applicant. If the applicant for an EPO does not know the whereabouts of a child, but that information is held by another person, the court may order that person to disclose the information when requested to do so by the applicant.  This provision is intended to ensure that access to the child is not frustrated by information being withheld from the applicant.

The Act also gives the courts power to authorise an applicant to enter and search specified premises for a child who is the subject of an EPO.

If the applicant believes there may be another child on the premises which is to be searched, who ought also to be the subject of an EPO, they should always seek an order authorising them to search for that child as well. Where the applicant cannot name the child, they should be described as clearly as possible in the order.

If a second child is found on the premises and the applicant is satisfied that there are sufficient grounds for making an EPO, the order authorising the search for the second child has effect as if it were an EPO. The authorised person must report the result of the search to the court and, what action was taken and/or is planned as a result. The court should also be told whether the order providing the power to search for the child is deemed to have the effect of an EPO, on the basis that the applicant is satisfied that the grounds for making an EPO exist in respect of that second child.

If an authorised person is, or is likely to be, obstructed from exercising their powers under the EPO the court can issue a warrant authorising any police officer to assist the authorised person in entering and searching the named premises. The warrant will authorise the police officer to use reasonable force if necessary in order to assist the applicant in the exercise of their powers to enter and search the premises for the child. If an applicant gains access and finds the child is not harmed and is not likely to suffer significant harm they should not remove the child. The power to remove the child would persist if the circumstances changed and the order was still in force.

There is no right of appeal against an EPO, however the child, a parent of the child, any person who is not a parent but who has parental responsibility for them, or any person with whom they were living immediately before the making of the EPO, may apply to the court for an EPO to be discharged: This right to apply to discharge an EPO is limited to those who did not receive notice of the EPO and were not present at the hearing.

4. Police Powers

The police have specific powers to protect children under Part V of the Children Act 1989. These should only be used in exceptional circumstances where there is insufficient time to apply for an Emergency Protection Order, or for reasons relating to the immediate safety of the child.

Where a police officer has reasonable cause to believe that a child would otherwise be likely to suffer significant harm they may remove the child to suitable accommodation and keep them there. Alternatively, they may take such steps as are reasonable to ensure that the child’s removal from hospital, or other place in which they are being accommodated, is prevented.

When a police officer has exercised this power the child is held to be in police protection. No child may be kept in police protection for more than 72 hours.

As soon as is practicable after taking the child into police protection, the case should be inquired into by a designated officer (an officer designated for the purposes of section 46 Children Act 1989 by the chief officer of the police area concerned). On completing the inquiry, the designated officer must release the child from police protection, unless they consider that there is still reasonable cause to believe that the child would be likely to suffer significant harm if released.

Upon taking the child into police protection, the police office concerned (rather than the designated officer) must inform the relevant local authority, and where possible inform the child of the steps that have been taken, the reasons for taking them and of any further steps that may be taken. The officer should also take steps to enable the child to be moved to accommodation provided by the local authority. The officer should also take such steps as are reasonably practicable to inform the child’s parents and those with parental responsibility.

The local authority has concurrent duties to make enquiries about whether it should take any action to safeguard or promote the child’s welfare. One such course of action is for the local authority to ask the police to apply for an EPO.

The designated officer has a number of additional responsibilities. They may apply, on behalf of the local authority in whose area the child is ordinarily resident, for an emergency protection order to be made in respect of the child. The EPO application may be made whether or not the authority knows of it or agrees to it being made.

Neither the officer concerned, the designated officer (nor the local authority) acquires parental responsibility for the child. The designated officer must nevertheless do what is reasonable in all the circumstances to promote the child’s welfare.

The designated officer must allow the following persons to have such contact with the child as, in their opinion, is both reasonable and in the child’s best interests:

• the child’s parents;
• anyone else who has parental responsibility for the child or with whom the child was living immediately before they were taken into police protection;
• a person who has in their favour an order relating to contact with the child or any person acting on behalf of any of the above.

5. Child Assessment Orders

A child assessment order enables an assessment of the child’s health or development, or of the way in which they have been treated, to be carried out where significant harm is suspected. Its use is most relevant in circumstances where the child is not thought to be at immediate risk, to the extent that removal from their parents’ care is required, but where parents have refused to cooperate with attempts to assess the child. This may be where the suspected harm to the child appears to be longer-term and cumulative rather than sudden and severe.

It can only be made if the court is satisfied:

• that there is reason to suspect that the child is suffering or is likely to suffer significant harm;
• that an assessment is required; and
• that it is unlikely that an assessment would be made in the absence of an order

A child assessment order may be appropriate where insufficient information is available to justify an application for a care or supervision order and an assessment is needed to help establish facts about the child’s condition.

Before making an application to the court, the local authority should always make enquiries into the child’s circumstances. The nature of the case will dictate the manner in which enquiries should be carried out and the degree of urgency. If possible, before an application is made, the child should have been seen by someone who is competent to form a judgement about the child’s welfare and development. When considering an application for any order, the court will expect to be given details of the enquiries made including, in particular, details of the extent to which, if at all, the enquiries have been frustrated by the failure or refusal of the parents to co-operate.

A child assessment order must specify the date by which the assessment is to begin and will have effect for a specified period, not exceeding 7 days from that date. The local authority should make arrangements in advance of the application, so that any necessary multi-disciplinary consideration of the child’s needs can be completed within the specified period.

The order requires any person who is in a position to do so (usually a parent) to produce the child to the person named in the order, and comply with any directions relating to the assessment included in the order. It does not confer on the local authority parental responsibility for the child, and a child of sufficient understanding to make an informed decision may refuse to consent to the assessment.

When making a child assessment order, the court may make directions about related matters, for example as to whether the assessment should be limited to a medical examination or cover other aspects of the child’s health and development. It also has the power to direct that the child should be kept away from home for a specified period if it is necessary for the purpose of the assessment. In these circumstances it must also give directions as it thinks fit about the contact the child must be allowed with other persons during this period.

If, upon considering an application for a child assessment order, the court is satisfied that there are grounds for making an Emergency Protection Order (EPO), then it should make an EPO instead of a child assessment order. Deliberate refusal by the persons responsible for the child to comply with a child assessment order is very likely to add to concern for the child’s welfare and would probably justify an application by the relevant local authority for an EPO (or a care order) or a request to the police that their police protection powers be exercised.