X, Re Emergency Protection Orders

An Emergency Protection Order is a draconian measure justified only by a genuine emergency and positive evidence establishing reasonable cause to believe that the child is likely to suffer significant harm without immediate removal or continued accommodation. Lack of information, the need for assessment, emotional abuse, non-specific sexual-abuse allegations, or suspected fabricated or induced illness will rarely, if ever, suffice alone.

The court must separately consider whether an application should proceed without notice and whether the substantive EPO criteria are met. Evidence must be full, accurate and from the best available source. The court must give detailed reasons, and the local authority must consider less interventionist alternatives, including a Child Assessment Order or interim care order.

A local authority obtained an emergency protection order without notice and removed a nine-year-old child from hospital shortly after a case conference had recommended only low-level intervention and further assessment. The child remained separated from her parents for about 14 months under interim care orders.

During subsequent care proceedings, the local authority abandoned allegations of sexual abuse and fabricated or induced illness. The court found that the threshold of significant harm under Children Act 1989, s 31 was not established, and the child was returned home. This judgment examined the failures surrounding the EPO, the recording of confidential case-conference information, the conduct of without-notice applications, and the handling of suspected fabricated or induced illness.

1. The EPO was unjustified. Under Children Act 1989, s 44(1), the court must have reasonable cause to believe that the child is likely to suffer significant harm if not removed or accommodated as specified. The test is not whether the local authority can say that it cannot certify that the child is completely safe. There must be positive evidence of a genuine emergency and an immediate need for protection.

2. The need for investigation or assessment does not itself justify emergency removal. The impact of removal must be assessed proportionately against the child’s welfare and family rights under s 1 and ECHR arts 6 and 8. Where assessment is required, the proper alternatives may include a Child Assessment Order under s 43, or care proceedings with directions and an interim care order.

3. The court adopted the guidance in X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005] 1 FLR 341. The guidance requires exceptional justification, necessity, proportionality, the least interventionist solution, full and compelling evidence, candid disclosure in without-notice applications, careful consideration of notice, proper recording, and continuing review of any removal.

4. The questions whether an application should proceed without notice and whether the substantive EPO grounds are established are separate. The court must give reasons for both decisions. In an urgent case the order may be made immediately, but detailed reasons must follow. The hearing should be tape-recorded or fully noted, and the parents should ordinarily receive the evidence, submissions, materials and reasons without needing to request them.

5. Case-conference minutes must record all information, including material initially treated as confidential. Confidential material should be kept separately, its continuing confidentiality reviewed, and the non-confidential minutes should record that confidential information was given.

6. Suspected fabricated or induced illness requires medical appraisal. Social workers cannot make that diagnosis alone. Concerns about the child’s health must be discussed with the GP or paediatrician, and an EPO will rarely be justified without medical evidence of an immediate risk of direct physical harm.

7. The local authority’s application and the justices’ procedure were materially flawed. The EPO was set aside in substance by the finding that no emergency or statutory grounds existed. The local authority was ordered to contribute £200,000 towards the parents’ legal aid costs.