Children Act 1989, section 45

Duration of emergency protection orders and other supplemental provisions

Part V Protection of Children

(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.

F614 (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)F615. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F617[F616 (10)No appeal may be made against—

(a)the making of, or refusal to make, an emergency protection order;

(b)the extension of, or refusal to extend, the period during which such an order is to have effect;

(c)the discharge of, or refusal to discharge, such an order; or

(d)the giving of, or refusal to give, any direction in connection with such an order.F616]

(11)Subsection (8) does not apply—

(a)where the person who would otherwise be entitled to apply for the emergency protection order to be discharged—

(i)was given notice (in accordance with rules of court) of the hearing at which the order was made; and

(ii)was present at that hearing; or

(b)to any emergency protection order the effective period of which has been extended under subsection (5).

(12)A court making an emergency protection order may direct that the applicant may, in exercising any powers which he has by virtue of the order, be accompanied by a registered medical practitioner, registered nurse or [F618registered midwifeF618] , if he so chooses.

[F616 (13)The reference in subsection (12) to a registered midwife is to such a midwife who is also registered in the Specialist Community Public Health Nurses' Part of the register maintained under article 5 of the Nursing and Midwifery Order 2001.F616]

Definitions used in section 45 10

emergency protection order

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

Defined in s.105(1) · 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
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
bank holiday

“bank holiday” means a day which is a bank holiday under the Banking and Financial Dealings Act 1971 ;

Defined in s.105(1) · 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
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
a care order

“a care order” means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and

Defined in s.31(11) · see it in the full Act
care order

“care order” has the meaning given by section 31(11) and also includes any order which by or under any enactment has the effect of, or is deemed to be, a care order for the purposes of this Act; and any reference to a child who is in the care of an authority is a reference to a child who is in their care by virtue of a care order;

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
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

Cases considering section 45 9

B-C (A Child), Re

[2016] EWCA Civ 970 · 28 July 2016

Section 45(10) was treated as precluding any appeal from the making or refusal of an emergency protection order. Its effect was central to identifying the alternative route through an interim care order application and to finding procedural error where that application was not heard or listed. (see paras [17]–[21], [27]–[29])

G, R (on the application of) v Blackpool Borough Council

[2011] EWHC 1052 (Admin) · 15 March 2011Limits

The court noted that section 45(10) removes an appeal against the making or refusal of an emergency protection order. It declined to determine compatibility with the Convention because the issue was historical, the order had expired, and the case was unsuitable for a public-interest ruling. (see paras [21]; [26]–[29]; [34]) The court identified section 45(11) as providing a safeguard by permitting an application to discharge an emergency protection order where the person had notice and was present at the hearing. This safeguard supported the conclusion that compatibility should not be determined in the present case. (see para [27])

X Council v B & Ors

[2004] EWHC 2015 (Fam) · 16 August 2004Limits

Although an emergency protection order may last up to eight days, it must be made for no longer than is absolutely necessary. A without-notice order should use the shortest period compatible with immediate safety (see paras [36], [49], [57]). The absence of an appeal against making, extending or refusing to discharge an emergency protection order is a statutory gap which demands especially rigorous initial scrutiny and may leave room for judicial review in an appropriate case (see paras [36]-[41]). A parent present at the original hearing cannot apply for discharge. This restriction contributes to the need for scrupulous regard to Convention rights at the initial hearing (see paras [36]-[41]). An application to extend an emergency protection order is subject to the same requirements of strict necessity, proportionality and minimum duration as the original application (see para [49]). The court may hear oral evidence on an emergency protection application, but the substance must be recorded so absent parents can understand and challenge the case against them (see paras [55], [57]). A child or children’s guardian may seek discharge of an emergency protection order. Effective use of the right requires prompt appointment of a guardian and disclosure of the material used at the without-notice hearing (see paras [37], [55]). The provision prevents a discharge application being heard during the first 72 hours. The restriction increases the responsibility to scrutinise the original application rigorously (see paras [36]-[41]).

What each judgment says about section 45 is in the case-law panel in the full Act.

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F614S. 45(8A)(8B) inserted (1.10.1997) by 1996 c. 27, s. 52, Sch. 6 para. 4(with Sch. 9 para. 5); S.I. 1997/1892, art. 3
  2. F615S. 45(9) repealed (6.4.2009) by Children and Young Persons Act 2008 (c. 23), ss. 30, 42, Sch. 4; S.I. 2009/268, art. 3(3)(b); S.I. 2009/728, art. 2(a)(c)
  3. F617S. 45(10) substituted (14.10.1991) by Courts and Legal Services Act (c. 41, SIF 76:1), s. 116, Sch. 16 para. 19; S.I. 1991/1883, art. 3, Sch.
  4. F616S. 45(13) added (1.8.2004) by The Health Act 1999 (Consequential Amendments) (Nursing and Midwifery) Order 2004 (S.I. 2004/1771), art. 3, Sch. para. 4(a)
  5. F618Words in s. 45(12) substituted by S.I. 2002/253, art. 54, Sch. 5 para. 10(a) (with art. 3(18)) (the substitution coming into force in accordance with art. 1(2)(3) of the said S.I. 2002/253) this amendment (substituted text) is marked as yet to come into force, see the commentary.

Commencement

  1. I42S. 45 in force at 14.10.1991 see 108(2)(3) and S.I. 1991/828, art. 3(2)