Applications for Emergency Child Protection Orders and Exclusion Orders

An Emergency Child Protection Order (ECPO) enables a child to be removed from where they are and taken to accommodation approved by the Committee and kept there, or to be kept where  they are if this is necessary to provide immediate short-term protection.

An ECPO operates as a direction to any person, who is in a position to do so, to comply with a request to produce the child to the Committee and as a direction to a police officer to take such steps as are necessary to assist in giving effect to the order, which includes the power to enter onto private premises. It also provides lawful authority for a police officer to take such steps and for the Committee to keep the child in approved accommodation.

Under Section 55 of the Children (Guernsey and Alderney) Law, 2008 (as amended) (“the 2008 Law”), the court can make an ECPO on the application of the Committee where:

• it is satisfied that a child is suffering, or at imminent risk of suffering, serious harm.

  The ECPO will grant the Committee 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 ECPO can be made for a maximum period of 8 days An ECPO ceases to have effect if either

• the Committee takes no step to implement the order within 24 hours of it being made,
• the Children’s Convenor with the Committee’s consent, releases the child from the order
• a court discharges the order, or,
• the Tribunal first sits to consider the child’s case.

An application for an ECPO is a very serious step, and the court must be satisfied that the ECPO is both necessary and proportionate and that there is no less radical form of order available.

The Committee can also apply to the court for an ECPO during the course of an investigation into whether compulsory intervention may be necessary in respect of a child (an investigation pursuant to section 25 of the Children (Miscellaneous Provisions) (Guernsey and Alderney) Ordinance, 2009)) if access to a child is denied or information about the child’s whereabouts is required and the Committee cannot be satisfied that the child’s welfare can otherwise be protected.

If it would better safeguard the child to seek to exclude an individual assessed to pose a risk from the family home rather than the child, then an Exclusion Order (s.59) is another option to be considered. The Court will need to be satisfied that the threshold test for an ECPO is satisfied and, in addition, that the child will be safeguarded from harm by the identified person being excluded from the home, that there is someone residing in the home capable of taking responsibility for the child’s care and protection and that an exclusion order would better safeguard the welfare of the child than removing the child from the home. 

An Exclusion Order suspends the right of the person against whom it is made from occupying or visiting the family home to which it relates and prohibits a person, who has no right to occupy or visit the family home, from occupying or visiting except in accordance with any permission granted by the court which made the order or the Committee.

An Exclusion Order can be made for up to 12 months and ancillary orders can be attached to it specifying matters in more detail, for example, in relation to access to the property or its vicinity, in relation to contact (if any) with the child and in respect of financial matters. An Exclusion Order can be made on an ex parte basis, if appropriate, for up to 5 days. A power of arrest can be attached to the order by the court. 

Planned emergency action will normally take place following a Strategy Discussion between the Children & Family Community Services, police and other relevant agencies. Where it is necessary to act immediately, a Strategy Discussion should take place as soon as possible afterwards.

When considering whether emergency action is necessary, consideration should also be given to the needs of other children in the same household or in the household of an alleged perpetrator.

Before an application for an ECPO (or Exclusion Order) can be made, consultation with Legal advisers should take place to establish whether there is sufficient evidence to establish that the Threshold Criteria for an application are met and that there is no alternative interim arrangement that can adequately manage the risk.

An application may be made ex parte (without prior notice being given to the parents) but the circumstances where this will be appropriate and justifiable will be extremely rare. This will only be appropriate 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.

As soon as a decision has been made to apply for an ECPO, the social worker should prepare a written Statement of Evidence to support the application for an ECPO or exclusion order. The relevant SWET should be used (ECPO or Exclusion Order).

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 provided by the medical practitioner with direct knowledge of the child. If there is a relevant police report available this should be obtained.

Where a Child Protection Conference has been held, it is good practice for the minutes of the most recent conference to be produced to the Court. Consideration should be given to whether there are any other relevant reports or documents which might assist the court if produced e.g., signed safeguarding plans.

The plan for the child upon the making of an order should be included in the ECPO SWET and should include contact arrangements.

Oral evidence will be required from the social worker who has provided a statement to the Court and it is likely to be also required from other key witnesses, for example, where relevant, police officers and/or an examining paediatrician.

Whilst not binding upon the court in Guernsey, case law from England & Wales in respect of emergency applications has been considered persuasive as the same human rights principles are at stake. The guidance given by Mr Justice Munby in X Council v B (set out in Section 7, X Council v B Guidance) in relation to EPOs made in England & Wales is likely to be brought to the attention of the Court and the guidance should be followed as far as possible.

Where the parents have not been given notice of the hearing and/or do not attend the hearing, it will be good practice for the Committee’s legal representative or the social worker who attends Court to 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 ECPO or exclusion order, the application, any written evidence submitted to the Court and the reasons.

As soon as practicable after the hearing, but within 24 hours, the Committee must notify the Children’s Convenor that an ECPO has been made in respect of a child and provide the Children’s Convenor with a copy of the order and any written evidence provided to the court. 

Notification of the ECPO is regarded as a referral to the Children’s Convenor and consequently investigation will commence and such other action as appropriate will be taken by that office. If it appears to the Children’s Convenor that continued compulsory intervention is required to ensure the child’s safety, the case will be referred to the Tribunal which will need to sit prior to the expiry of the ECPO to consider whether it should make an interim care requirement and any necessary conditions including a residence condition.  The social worker should expect to attend any hearing before the Tribunal.

A legal planning meeting should be convened by Children and Family Community Services as soon as possible to consider case planning and whether an application to court for a community parenting order is appropriate in the circumstances of the case.

For further information see:

• Community Parenting Orders; and
• Legal Planning Meetings Procedure.

Where those holding the child do not readily agree to hand the child over, the ECPO provides a formal direction to any person who is in a position to do so to comply with any request to produce the child.

The ECPO also operates as a direction to a police officer to take any steps necessary to assist in giving effect to the order including entering onto private premises.

If a power of arrest has been attached to an Exclusion Order or any order made ancillary to it, a police officer may arrest an individual without warrant if the police officer has reasonable cause to suspect that the individual has had notice of the order and is acting in breach of it.

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 Court 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 court which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and the court 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 authority's application is to enable it to have the child assessed, then 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 court 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 court. The court 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 local authority should 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 court either before or during the course of the hearing; and (ii) what legal authorities were cited to the court. The local authority's 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 court 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'. Section 44(5)(a) provides that the local authority shall exercise its power of removal under Section 44(4)(b)(i) 'only...in order to safeguard 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 court 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 authority's 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;

Section 44(13) of the Children Act 1989 requires the local authority, subject only to any directions given by the court 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.