Children Act 1989, section 44

Orders for emergency protection of children

Part V Protection of Children

(1) Where any person (“the applicant”) applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—

(a)there is reasonable cause to believe that the child is likely to suffer significant harm if—

(i)he is not removed to accommodation provided by or on behalf of the applicant; or

(ii)he does not remain in the place in which he is then being accommodated;

(b)in the case of an application made by a local authority—

(i)enquiries are being made with respect to the child under section 47(1)(b); and

(ii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency; or

(c)in the case of an application made by an authorised person—

(i)the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm;

(ii)the applicant is making enquiries with respect to the child’s welfare; and

(iii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and the applicant has reasonable cause to believe that access to the child is required as a matter of urgency.

(2)In this section—

(a) “authorised person” means a person who is an authorised person for the purposes of section 31; and

(b) “a person authorised to seek access” means—

(i)in the case of an application by a local authority, an officer of the local authority or a person authorised by the authority to act on their behalf in connection with the enquiries; or

(ii)in the case of an application by an authorised person, that person.

(3)Any person—

(a)seeking access to a child in connection with enquiries of a kind mentioned in subsection (1); and

(b)purporting to be a person authorised to do so,

shall, on being asked to do so, produce some duly authenticated document as evidence that he is such a person.

(4) While an order under this section (“an emergency protection order”) is in force it—

(a)operates as a direction to any person who is in a position to do so to comply with any request to produce the child to the applicant;

(b)authorises—

(i)the removal of the child at any time to accommodation provided by or on behalf of the applicant and his being kept there; or

(ii)the prevention of the child’s removal from any hospital, or other place, in which he was being accommodated immediately before the making of the order; and

(c)gives the applicant parental responsibility for the child.

(5)Where an emergency protection order is in force with respect to a child, the applicant—

(a)shall only exercise the power given by virtue of subsection (4)(b) in order to safeguard the welfare of the child;

(b)shall take, and shall only take, such action in meeting his parental responsibility for the child as is reasonably required to safeguard or promote the welfare of the child (having regard in particular to the duration of the order); and

(c)shall comply with the requirements of any regulations made by the Secretary of State for the purposes of this subsection.

(6)Where the court makes an emergency protection order, it may give such directions (if any) as it considers appropriate with respect to—

(a)the contact which is, or is not, to be allowed between the child and any named person;

(b)the medical or psychiatric examination or other assessment of the child.

(7)Where any direction is given under subsection (6)(b), the child may, if he is of sufficient understanding to make an informed decision, refuse to submit to the examination or other assessment.

(8)A direction under subsection (6)(a) may impose conditions and one under subsection (6)(b) may be to the effect that there is to be—

(a)no such examination or assessment; or

(b)no such examination or assessment unless the court directs otherwise.

(9)A direction under subsection (6) may be—

(a)given when the emergency protection order is made or at any time while it is in force; and

(b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.

(10)Where an emergency protection order is in force with respect to a child and—

(a)the applicant has exercised the power given by subsection (4)(b)(i) but it appears to him that it is safe for the child to be returned; or

(b)the applicant has exercised the power given by subsection (4)(b)(ii) but it appears to him that it is safe for the child to be allowed to be removed from the place in question,

he shall return the child or (as the case may be) allow him to be removed.

(11)Where he is required by subsection (10) to return the child the applicant shall—

(a)return him to the care of the person from whose care he was removed; or

(b)if that is not reasonably practicable, return him to the care of—

(i)a parent of his;

(ii)any person who is not a parent of his but who has parental responsibility for him; or

(iii)such other person as the applicant (with the agreement of the court) considers appropriate.

(12)Where the applicant has been required by subsection (10) to return the child, or to allow him to be removed, he may again exercise his powers with respect to the child (at any time while the 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;

[F610 (d)any person named in a child arrangements order as a person with whom the child is to spend time or otherwise have contact;F610]

(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.

Definitions used in section 44 11

the court

(7) For the purposes of this Act “the court” means the High Court or the family court .

Defined in s.92(7) · see it in the full Act
the order

(a) an order under paragraph 1(2)(a) or (b) for the making or securing of periodical payments in favour of more than one child (“the order") is in force;

Defined in Sch.1 para.6(9) · see it in the full Act
child

16 (1) In this Schedule “child” includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person.

Defined in Sch.1 para.16(1) · see it in the full Act

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;

Defined in s.105(1) · see it in the full Act
harm

“harm” has the same meaning as in section 31(9) and the question of whether harm is significant shall be determined in accordance with section 31(10);

Defined in s.105(1) · see it in the full Act
local authority

“local authority” means, in relation to England ..., the council of a county, a metropolitan district, a London Borough or the Common Council of the City of London in relation to Wales, the council of a county or a county borough and, in relation to Scotland, a local authority within the meaning of section 1(2) of the Social Work (Scotland) Act 1968 ;

Defined in s.105(1) · see it in the full Act
hospital

“hospital” ... has the same meaning as in the Mental Health Act 1983 , except that it does not include a special hospital within the meaning of that Act;

Defined in s.105(1) · see it in the full Act
parental responsibility

“parental responsibility” has the meaning given in section 3;

Defined in s.105(1) · see it in the full Act

(1) In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

Defined in s.3(1) · see it in the full Act
emergency protection order

“emergency protection order” means an order under section 44;

Defined in s.105(1) · see it in the full Act
prescribed

“prescribed” means prescribed by regulations made under this Act;

Defined in s.105(1) · see it in the full Act
parent

(2) In this Schedule, except paragraphs 2 and 15, “parent” includes—

(a) any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and

(b) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;

Defined in Sch.1 para.16(2) · see it in the full Act

21 In this Part of this Schedule “parent” has the same meaning as in the Education Act 1996 . ).

Defined in Sch.3 para.21 · see it in the full Act
child arrangements order

"child arrangements order " means an order regulating arrangements relating to any of the following—

(a)

with whom a child is to live, spend time or otherwise have contact, and

(b)

when a child is to live, spend time or otherwise have contact with any person;

Defined in s.8(1) · see it in the full Act

“child arrangements order” has the meaning given by section 8(1);

Defined in s.105(1) · see it in the full Act

Cases considering section 44 40

Williams and another v London Borough of Hackney

[2018] UKSC 37 · 18 July 2018

An emergency protection order is the appropriate judicial mechanism where immediate compulsory protection is necessary. An authority fearing significant harm after parental objection or a demand for return should seek such an order. (see paras [20]; [43]-[45])

AG (A Child), Re

[2022] EWCA Civ 1505 · 18 November 2022

Section 44 provided the basis for the local authority’s application for an emergency protection order. The judgment treated the coercive protective powers under the Act as part of the article 3-compliant framework, while recognising that diplomatic immunity restricted their effectiveness. (see paras [17]; [41]; [48])

London Borough of Hackney v Williams & Anor

[2017] EWCA Civ 26 · 26 January 2017Defines

The court identified an emergency protection order under section 44 as the appropriate compulsory remedy where a child faces likely significant harm (see paras [37], [40]). The court stated the threshold for an emergency protection order: reasonable cause to believe that the child is likely to suffer significant harm without removal or continued protection (see para [37]). The court referred to the statutory significant-harm threshold for compulsory emergency protection. The court referred to the powers conferred by an emergency protection order, including removal and keeping the child in accommodation (see para [37]).

20 more judgments, and what each says about section 44, are in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F610S. 44(13)(d) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 35; S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.

Commencement

  1. I41S. 44 wholly in force at 14.10.1991 see s. 108(2)(3) and S.I. 1991/828, art. 3(2)