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Contents

1.	Emergency Protection Orders
	1.1	Introduction
	1.2	Decision to Apply for an EPO
	1.3	Preparation of the Application
	1.4	Hearing of the Application
	1.5	After the Hearing
	1.6	X Council v B Guidance
2.	Care Proceedings
3.	Social Worker’s Initial Statement in Care Proceedings
4.	After the Issue of Care Proceedings
5.	Role of Legal Services in all Proceedings
6.	Format of all Statements and Reports
7.	Format of Care Plans
8.	Correspondence during Court Proceedings
9.	The Social Worker at Court

1. Emergency Protection Orders

1.1 Introduction

Under Section 44 of the Children Act 1989, the local authority can apply for an Emergency Protection Order (EPO) where there are reasonable grounds for believing there is an immediate risk of Significant Harm to a child. Applications will usually be made to the Family Proceedings Court.

The EPO will grant the local authority Parental Responsibility for the child which will enable the child to be removed to other accommodation or to remain in a place where he/she is being accommodated (e.g. a hospital or foster placement).

An EPO can be made for a maximum period of 8 days.

An application for an EPO should only be made by the local authority in exceptional circumstances where there are compelling reasons which require the local authority to share Parental Responsibility for the child and, where necessary, separate the child from the care of his or her parents.

Cases of emotional abuse will rarely, if ever, warrant an EPO. Likewise, cases of sexual abuse, where the allegations are non-specific and where there is no evidence of immediate risk to the child, will rarely warrant an EPO. 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.

Where the real purpose of the application is to ensure that the child is assessed, then consideration should be given to whether that objective cannot be equally effectively achieved by an application for a Child Assessment Order or by the initiation of Care Proceedings and seeking the Courts direction under section 38(6) of the Children Act 1989 for an assessment.

1.2 Decision to Apply for an EPO

Before an application for an EPO can be made, consultation with Legal Services should take place to establish whether there is sufficient evidence to establish that the threshold criteria for an application are met.

The approval of the Service Manager is required before the application is made. Whether the application should be made ex parte (i.e. without prior notice being given to the parents) is a decision which will be made in consultation with Legal Services. The social worker will seek the Designated Managers approval by outlining the reasons for the application, the outcome of the legal consultation and the proposed plan for the child should an EPO be granted. Any available documentation, for example the Child Protection Conference Report or a medical report, should also be provided to the Designated Manager. Before giving the approval, the guidance given by Mr. Justice Munby in X Council v B should be considered by the Designated Manager. This is set out in Section 6, X Council v B Guidance below.

After an EPO is made, the further approval of the Service Manager must be sought before any decision is made to remove the child from the parents' care, where this was not part of the plan presented to the Court.

1.3 Preparation of the Application

As soon as a decision has been made to apply for an EPO, the social worker should prepare a written Statement of Evidence to support the application for an EPO. Where the Statement is hand written, it must be legible; a typed copy of the statement must be filed with the Court as soon as practicable after the Court hearing.

The evidence must be provided from the best available source; usually this will be the social worker with direct knowledge of the child. Where the application refers to medical opinion, the application must be supported by a written medical report (a faxed copy if necessary) provided by the medical practitioner with direct knowledge of the child.

Where a Child Protection Conference has been held, the minutes of the most recent conference should be produced to the Court.

Where it is considered that the application for an EPO should be made without prior notice being given to the parents and the Service Manager approves this course of action, the leave of the Court will be required and the social worker or his/her legal representative should contact a Legal Adviser at the Family Proceedings Court in order to apply for such leave.

1.4 Hearing of the Application

The social worker who attends Court in support of an application for an EPO must ensure that the guidance given by Mr. Justice Munby in X Council v B is brought to the attention of the Court.

Where the parents have not been given notice of the hearing and/or do not attend the hearing, the local authority legal representative or, in the absence of a legal representative, the social worker who attends Court, must also ensure that a full note is made of the hearing so that a copy can be provided to the parents. This should be handed to the parents as soon as possible after the hearing, together with a copy of the EPO, the application, any written evidence submitted to the Court, and the Justices' reasons.

1.5 After the Hearing

As soon as practicable after the hearing the social worker should convene a Care Planning Meeting and seek the approval of the Service Manager and Group Services Manager to initiate Care Proceedings where necessary.

1.6. X Council v B Guidance

The 14 key points made by Mr. Justice Munby in the above case are:

1. An EPO, summarily removing a child from his parents, is a draconian and extremely harsh measure requiring exceptional justification and extraordinary compelling reasons. Such an Order should not be made unless the Family Proceedings Court (FPC) is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child's safety: imminent danger must be actually established.
2. Both the local authority which seeks and the FPC which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and the FPC approach every application for an EPO with an anxious awareness of the extreme gravity the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents.
3. Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety.
4. If the real purpose of the local authorities application is to enable it to have the child assessed, the consideration should be given to whether that objective cannot equally effectively, and more proportionately, be achieved by an application for, or by the making of, a Child Assessment Order under section 43 of the Children Act 1989.
5. No EPO should 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.
6. The evidence in support of the application for an EPO must be full, detailed and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.
7. Save in wholly exceptional cases, parents 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 upon.
8. 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 to give some kind of albeit 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.
9. The evidential burden on the local authority is 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 matters, whether of fact or law.
10. Section 45(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 requirements of rules 20, 21(5) and 21(6) of the Family Proceedings Courts (Children Act 1989) Rules 1991. The FPC must keep a note of the substance of the oral evidence and must record in writing not merely its reasons but also any findings of fact.
11. The mere fact that the FPC is under the obligations imposed by rules 20, 21(5) and 21(6) is no reason 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 were lodged with the FPC either before or during the course of the hearing; and (ii) what legal authorities were cited to the FPC. The local authorities legal representatives 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 a proper request for information which they are unable to provide.
12. Section 44(5)(b) of the Children Act 1989 provides that the local authority may exercise its parental responsibility only in such manner 'as is reasonably required to safeguard or promote the welfare of the child'. The local authority must apply its mind very carefully to whether removal is essential in order to secure the child's immediate safety. The mere fact that the local authority has obtained an EPO is not in 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 the 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.
13. Consistently with the local authorities positive obligation under Article 8 to take appropriate action to reunite parent and child, section 44(10)(a) and 44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under section 44(4)(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 local authority a continuing duty to keep the case under review day by day so as to ensure that parent and child are separated for no longer than it is necessary to secure the child's safety. In this, as in other
respects, the local authority is under a duty to exercise exceptional diligence.
14. Section 44(13) of the Children Act 1989 requires the local authority, subject only to any directions given by the FPC under section 44(6), to allow a child who is subject to an EPO 'reasonable contact' with his parents. Arrangements for contact must be driven by the needs of the family, not stunted by lack of resources.

2. Care Proceedings

Also see Flowchart: Court Proceedings - Public Law Outline

Before a decision can be made to initiate Care Proceedings, the approval of the Designated Manager (Care Proceedings) is required.

Where the solicitor acting for the local authority becomes aware of the concerns about the assessment, intervention and planning for a child, the relevant Service manager will be informed.

Once a decision is made, a Legal Planning Meeting should be held.

The child’s social worker is responsible for convening the meeting, the social worker’s team manager will chair the meeting and a representative of Legal Services will be invited.

The issues to be considered at the meeting will include the following:

• The reasons for the concerns and the evidential basis for establishing Significant Harm and the Threshold Criteria.
• Why Care Proceedings are necessary - what is their aim, objective and purpose?
• The steps already taken to clarify the issues of concern - i.e. Initial Assessment and Core Assessment, as well as other medical and professional involvement
• When will the Initial Assessment or Core Assessment and other supporting documentation be available, if not already?
• The action/decisions already taken and where the decisions were made e.g. Strategy Discussions, Child Protection Conferences, Core Group meetings
• The proposed Care Plan for the child, including the proposed placement and any cultural, language and ethnic issues, the need for a Twin Track Plan, consultation with parents and the wider family, whether any family members are available to care for the child on an interim or permanent basis, if so whether the required checks have been made, the proposals for contact
• How the proposed Care Plan is to be achieved, including arranging a date for the case to be presented to the Adoption Panel
• Which expert witnesses may be appropriate and how will they be funded - if so, their CV, the proposed remit of the instructions and areas to be addressed should be included in the social worker’s initial statement
• What other assessments may be appropriate, who should they be done by and what are their timescales?
• Have there been previous Court proceedings in relation to the family?  If so, what steps are required to obtain the papers in relation to the case - from the Court or another local authority?
• When will the social worker’s statement be ready?

3. Social Worker’s Initial Statement in Care Proceedings  

The social worker’s initial Statement should follow the appropriate headings set out in the Pro-Forma, (see Section 6, Format of all Statements and Reports), focusing on the following:

• The family composition
• The precipitating events
• A summary of previous social work involvement including previous assessments
• Relevant emergency and other Court Orders
• Information relevant to the ethnicity, religion, culture, gender and vulnerability of the child, and services offered
• Local authority concerns with specific reference to Significant Harm and the Threshold Criteria.
• Assessment proposals, including expert assessments, and Twin Track Planning.
• Placement and contact proposals
• Conclusion and Order(s) sought

The Core Assessment and or minutes of the Child Protection Conference should be exhibited to the Statement to provide background information, rather than the Statement containing all the detailed background.

In addition, the social worker should prepare a succinct social work chronology setting out relevant dates and events and cross referring to the papers to be filed within the proceedings.

The Public Law Outline requires the social worker to make every effort to work with parents in the care planning process and to have completed the pre proceedings check list

4. After the Issue of Care Proceedings

It is essential that the social worker and the local authority solicitor have regular contact during the course of the proceedings, and that the progress of the case is kept under constant review. This will include review meetings as outlined in Looked After Review Procedures. Children who are the subject of Supervision Orders will be treated in the same way as Looked After children and will have Looked After Reviews at the same intervals.

This will include discussion of any disclosure issues, which may need to be the subject of directions by the Court.  For example, where there are parallel criminal proceedings, the Court may be asked to make directions in relation to the disclosure of evidence from the criminal investigation within the Care Proceedings. In addition, there may be other pending Court proceedings, which are relevant to the Care Proceedings and the Court may need to consider whether the cases should be transferred and/or consolidated.

The pre proceedings checklist from the Public Law Outline needs to be addressed before the first Court hearing and needs to be available for the first hearing.  This will include dates by which outstanding assessments can be completed.

Thereafter the Checklist will become a running document and completion of the Checklist will require regular liaison between the social worker, local authority solicitor and barrister (if instructed) during the course of the proceedings.

Any expert assessment required needs to be clarified if not discussed at the initial Legal Planning Meeting.  This will include the availability; remit timescales and funding of the expert. 

The social worker must not have any contact with the expert after the instructions are given without first consulting the local authority solicitor who will need to contact the other parties for their prior agreement.

Where an invoice is received from an expert, this will usually be sent to Legal Services and forwarded to the social worker, who must send the invoice, without delay, to the Finance Department with the appropriate budget code for payment within 28 days.

In addition the social worker must keep the local authority solicitor and Children’s Guardian up to date with any changes in relation to the child during the proceedings, for example, placement, contact, school/education, health.

Arrangements must not be made for any change to the child’s placement without prior consultation with the Children’s Guardian.

All children who become the subject of Care Order or Supervision Order, including Interim Orders, should be the subject of a Looked After Review. Their Social Worker must ensure that they make arrangements to convene the first Review immediately after the court hearing. See Looked After Reviews Procedure.

5. The Role of Legal Services in all Proceedings

Legal Services will:

1.	Provide legal advice.
2.	Draft Court applications and liaise with the Court
3.	File and serve the Statements for the local authority, Care Plans, Section 7 Reports, Section 37 Reports, Schedule 2 Reports.
4.	Make arrangements for legal representation.
5.	Attend the first day of the hearing wherever possible.
6.	Attend contested interim care hearings if deemed necessary.
7.	Attend contentious directions hearings if deemed necessary.
8.	Renew Interim Care Orders as and when required.
9.	Deal with all correspondence with solicitors during the course of the proceedings.
10.	Send a memo to the social worker following each hearing highlighting the dates for filing statements, Court hearings and any other key actions.
11.	Forward Court Orders to the social worker.
12.	Make initial contact with any expert to be instructed to obtain the following: CV Availability Earliest start date Timescale for proposed assessment Written estimate of fees
13.	Where an expert is to be instructed by local authority, draft letter of instruction to expert (ob basis of template letter) in consultation with the social worker and team manager and circulate for approval of other parties.

6. Format of all Statements and Reports

All social work statements and reports should follow the appropriate Pro Forma and must be:

• In numbered paragraphs
• Double spaced
• Paginated.

The Statement/Report must be accurate, succinct, relevant, well reasoned and balanced.  Fact must be distinguished from opinion and opinion must only be expressed within the limits of the author’s own expertise.

All statements, reports and exhibits should have a front/cover sheet.

The front sheet of the statement or report and cover sheet of an exhibit must contain the correct case number and on the top right hand corner:

• The author’s name
• The number of the author’s statement, i.e. 1st Statement, 2nd Statement etc.
• The date the Statement is signed  (N.B. This must be the same as the date under the author’s signature on the back page of the Statement)
• The date the Statement is filed with the Court.

The social worker must ensure he or she has read all the other Statements already filed in the proceedings to enable an appropriate response to be given.

The draft Statement/Report must be seen by the team manager 7 days before the date it has to be filed with the Court.

The draft must be sent by e-mail to the local authority solicitor 5 days before the filing date. The local authority solicitor will send amendments/suggestions/advice within 2 days.

The original of the final Statement/Report (signed and dated) must be sent to the local authority solicitor at least one day before the filing date.

7. Format of Care Plans

The format of the Interim Care Plan and Final Care Plan, which must be exhibited to the social worker’s Statement in Care Proceedings, should follow the headings set out in the Model Care Plan.

• Overall aim
• Child’s needs including contact
• Views of others
• Placement details and timetable
• Management and support by local authority.

There must be a separate Care Plan for each child.

The Care Plan must include a Contingency Plan], and where a Twin Track Plan is involved, the fostering and adoption service must be involved at an early stage with regard to family finding.

If funding is an issue, the social worker should include the necessary managerial approval in advance.

Where adoption is part of the Care Plan either as the preferred or contingency plan, legal advice should be sought as to the need for and timing of a freeing application.

The social worker and team manager must sign the Interim Care Plan. In addition the Designated Manager (Care Plans) must sign the Final Care Plan.

8. Correspondence during Court Proceedings

All correspondence received from solicitors during Court proceedings must be passed to the local authority solicitor to deal with.

The correspondence should be faxed or sent in the internal post to the solicitor, depending on the urgency of the case.

Where the local authority solicitor receives correspondence during Court proceedings and requires the social worker’s instructions for the reply, the letter will

be faxed to the social worker within 2 days of its receipt and the social worker must give clear instructions to the solicitors within a maximum of 2 days.

In relation to any other contentious correspondence, including letters received from an expert received during Court proceedings, the social worker must send the letter to the local authority solicitor as soon as possible, together with detailed instructions for the reply.

Where any correspondence raises issues of potential claims against the Council, a copy of the correspondence should be sent by the social worker to the Council’s Insurance section as well as the local authority solicitor.

9. The Social Worker at Court

Before Court

• For Care Proceedings, the social worker should arrange with Legal Services to collect the witness bundle prior to the final hearing (and any other major hearing as necessary) so as to be familiar with its layout and content
• The social worker should ensure that he or she has read all statements and reports filed in the proceedings
• The social worker should go through in detail the information, analysis, conclusions and recommendations set out in his or her Statements and/or Reports
• The social worker should ensure that the relevant files are available to take to the Court hearing and the necessary permission has been obtained to take them from the office (see Retention of Files Procedure)
• The social worker should check with Legal Services the day before the hearing in which Court the case is listed and the time of the listing
• The social worker should check with Legal Services whether their attendance at Court is required and whether they will have legal representation (NB. Where the attendance relates to a Section 7 Report or Section 37 Report, the social worker will generally not have legal representation). (See Section 7 and 37 Reports Procedure)

At Court

• The social worker should arrive promptly for the hearing and in good time for any pre-hearing negotiations
• The social worker should take the witness bundle and the relevant social work files
• When in the witness box, the social worker should speak slowly and clearly to the magistrates or Judge and refer to the witness bundle or file as necessary.

End