Emergency hearings

Emergency Hearings

What is an emergency hearing?

An emergency hearing is one heard on the same day as an application is made. It is also known as an ´abridged hearing´.

You would apply for an emergency hearing in an emergency situation. This might include if there is an imminent risk of the children being removed from the court´s jurisdiction without your consent (e.g. removal abroad) or if the children are to be imminently moved some distance from the other parent without prior warning, which will disrupt existing contact/living arrangements and involve a move from school and disruption to the child´s life which you believe will be harmful (see also our guide on Applying for a Prohibitive Steps Order. Prohibited Steps Orders relate to restricting Parental Responsibility. If a parent has parental responsibility, then he or she has the right independently to take decisions about matters such as schooling, medical treatment, and religion. A Prohibited Steps Order can remove a parent´s right to make such decisions about their child´s life. Any parent or guardian can apply Also holders of a (historic but still in force) Residence Order or where named in a Child Arrangements Order as someone with whom the child lives can apply for a Specific Issue Order. There is one restriction: the Court cannot make a Prohibited Steps Order where a Child Arrangements Order could address the issues that prompted the application.

As an example, if you were wishing to prevent your ex-partner from having face-to-face contact with your children due to concerns that the children could suffer abuse, you should apply for a Residence Order, and a Contact Order restricting the type of contact to indirect contact.

Prohibited Steps Orders only relate to restricting the exercise of parental responsibility (e.g. medical matters, education, parents taking the children abroad, religious matters etc).

The Court´s willingness to grant the order will depend on the circumstances presented to them and what the Court considers to be in the children´s best interests. To apply you would use Form C100. If you are using a solicitor, they will do this for you. Otherwise, download and complete the Form C100. Print and sign three copies of the form.

Check how much the court fees are (see our page on Court Fees, and either take a cheque, postal order or cash for that amount when you go to your local family court. If you are on benefits you can use form EX160 fill this in and show evidence of your proof of benefits.

It will assist both you and the judge if you write a brief Position Statement. Try to keep the position statement to two to three pages, setting out briefly why you are applying for contact, and why you believe it to be in the children´s best interests. Be factual, and try to be objective in what you write, and the language you use.

A position statement is not essential, but it helps inform the judge, briefly and ideally succinctly, why you are applying for the order, and can assist you in court so you do not forget any points you wish to raise.

Before setting off for the court building, ensure you have with you:

Three completed and signed copies of the forms;
The cash, cheque or postal order to pay the court fee;
Three copies of your Position Statement.
Hand in the court forms, fee and position statement to the court´s administration department.

This type of order may also be used to prevent a parent from removing their children from the jurisdiction of the Court (England and Wales). In these circumstances, and if you are worried your ex-partner may seek to unlawfully take the children abroad, you should ask for the children´s passports to be seized when you make your application for a Prohibited Steps Order.Other circumstances would include if the children were at risk of significant harm (see also our guide on Applying for an Applying for an Emergency Protection Order. While Social Services are most likely to request this type of order, anyone can apply to the Court if they believe that children are likely to suffer significant harm if the order isn´t made, and that the child will likely suffer harm if they don´t remain with the applicant.

While it is rare for anyone other than Social Services to apply for an Emergency Protection Order, any adult may do so. If not Social Services, it is most likely that another family member may choose to apply, such as a non-resident parent, grandparent, aunt or uncle who becomes aware that the children are at risk of significant harm, and wishes to provide temporary care for the children while matters are properly investigated, and the children´s safety is secured without delay.It may be that you believe your child needs emergency medical treatment, in which case you would be applying for a Specific Issue Order (see also our guide on Applying for a Specific Issue Order).

It may be that your ex-partner has disappeared with the children (see also our guide on Applying for a Seek and Find Order). In such circumstances, we also recommend you read our guide on Parental Child Abduction.

It may simply be that you have a holiday planned and your ex-partner refuses contact at the last moment. On this last example, we would urge some judgment on whether an emergency application is warranted. If you are due to take the children away, this has been planned for some time and your ex was aware, and you have incurred costs for travel and accommodation, your reasons for making an emergency application are more likely to be accepted. If the children were simply due to come over and stay with you, it is unlikely that the court will agree to hear the case that day (see also our guide on Child Arrangements Orders, Warning Notices and Enforcement).

Sadly, the court will not view matters as an emergency if contact otherwise ceases, or if parents simply wish to resolve matters quickly following separation. In such circumstances, paperwork should be filed with the court in the way set out in our other guides and the court will notify you of a date for a directions hearing. In such circumstances, the court will normally expect you to attempt mediation (see also our guide on Mediation).

How do I apply?

Be sure on what orders you want the court to make and complete the necessary paperwork (refer to the relevant guide on our Applying to Court page for help). When completing the application form, ensure that you explain you want an ´Abridged Hearing´, and briefly set out the reasons why. If you have time, include a position statement giving the judge a little more background information and setting out your concerns and the order(s) that you want the court to make. Keep this fairly brief, and ideally, no more than 3-4 pages (also see our packages in our Shop templates and guides on writing a position statement).

Get to the court early. Ideally, be there for 9am when the court opens, and take the forms to the court´s administration department. Make sure that you also tell the court staff that you need an abridged hearing and ask that the application form (and your position statement if you have written one) is placed before the judge immediately.

What do I do if it is a weekend or a bank holiday?

If it is a weekend or bank holiday, your local family court will be closed. If the children are at risk of significant harm, call the police, and you should consider this as an option if any delay caused by applying to the court may place the children at greater risk. The police, if they find that the children are at risk of harm, can take the children into protective custody. This may not mean that the children come to stay with you, as social services will then get involved. That said, the children´s safety must come first.

If your ex has disappeared with the children, and you do not believe them to be at risk of harm, wait until the court opens, and apply for a seek and find order and any other orders that you want the judge to make (e.g. orders for contact or residence).

In the event that the children are at risk of imminent removal abroad without your consent, e.g. before you could otherwise apply to the court and leave the court sufficient time to act, we recommend you telephone The Principle Registry of the Family Division on 0207 947 6000 and ask to speak to the duty judge, explaining your situation. Again, be clear as to why you are making an emergency application and on what you want the court to do e.g. make a prohibitive steps order preventing the children from being removed from the country, asking that the children´s passports be seized, and that an ´all ports bulletin´ be made.

What is likely to happen next?

In an emergency situation, a judge has the power to make an immediate order. This is likely to be a temporary or ´interim´ order, since the court will wish to allow the other side (normally the other parent depending on the circumstances) to defend themselves against any allegations you made which led to the order being made on an emergency basis. In such circumstances it is likely that a further hearing date will be set. Again, normally 14 days´ notice is required prior to a hearing to serve paperwork on the other parties, although the judge can ´abridge´ this time period and set a hearing date sooner if the circumstances make this appropriate.

The court may decide the matter is not urgent, and require you to arrange mediation prior to applying to court. Depending on the circumstances, the court may order that the police and/or social services check on the children prior to making any order.

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 limited 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). Under an Emergency Protection Order, the Local Authority should only exercise this authority to the extent reasonably required to safeguard or promote the welfare of the child, having regard in particular to the duration of the order, which lasts up to 8 days, although it can be extended for up to a further 7 days. Under an EPO, if medical treatment etc. is required, then a specific order or direction is required from the court if parental consent is not forthcoming.

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 or chronic ongoing neglect 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 Illnesses, 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 Court's direction under section 38(6) of the Children Act 1989 for an assessment.

What is directed under S.38(6) must clearly be an examination or assessment of the child including where appropriate his relationship with his/her parents and any other assessment.

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 Services Manager is required before the application is made, including whether the application should be made ex parte (i.e. without prior notice being given to the parents).

The social worker will seek the Services Manager's 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 Services Manager.

Before giving the approval, the guidance given by Mr. Justice Munby in X Council v B should be considered by the Services Manager. This is set out in Section 6, X Council v B Guidance.

It should be stated in the care plan presented to court that removal from parents care is sought. If there is change in the child's circumstances between obtaining the order and acting on it a further discussion must take place with a Services Manager before the child is removed.

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 C1 and Supplement for an Application for an EPO (Legal Form C11). 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 Services 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.

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 (set out in Section 6, X Council v B Guidance) 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.

5. After the Hearing

As soon as practicable after the hearing the social worker should convene a Legal Planning Meeting (see Legal Planning Meetings Procedure) and seek the approval of the Services Manager to initiate Care Proceedings where necessary.

6. X Council v B Guidance

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

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.

1. Introduction

The EPO will grant the local authority limited Parental Responsibility for the child which will enable the child to be removed to other accommodations or to remain in a place where he/she is being accommodated (e.g. a hospital or foster placement). Under an Emergency Protection Order, the Local Authority should only exercise this authority to the extent reasonably required to safeguard or promote the welfare of the child, having regard in particular to the duration of the order, which lasts up to 8 days, although it can be extended for up to a further 7 days. Under an EPO, if medical treatment etc. is required, then a specific order or direction is required from the court if parental consent is not forthcoming.

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

What is directed under S.38(6) must clearly be an examination or assessment of the child including where appropriate his relationship with his/her parents and any other assessment.

2. Decision to Apply for an EPO

The approval of the Services Manager is required before the application is made, including whether the application should be made ex parte (i.e. without prior notice being given to the parents).

Before giving the approval, the guidance given by Mr. Justice Munby in X Council v B should be considered by the Services Manager. This is set out in Section 6, X Council v B Guidance.

3. Preparation of the Application

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

4. Hearing of the Application

5. After the Hearing

6. X Council v B Guidance

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

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;
Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety;
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;
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;
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;
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;
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;
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;
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) Rules1991. 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;
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 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 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;
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 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;
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 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.

7. Warrants and Supplementary Orders

The Team Manager must consult with CLU before seeking any of the following warrants.

Warrants can be applied for at the same time as an application for an EPO. They can be issued under s48 (9) of the Children Act 1989 when it appears to the Court that the Social Worker seeking to exercise powers under the EPO has been or is likely to be prevented from doing so by being refused entry to the premises concerned or access to the child concerned.

Such a warrant authorises a constable to assist the Social Worker in exercising their powers under the EPO is used when the child is living at home or with family/friends and the Team Manager must complete an application using Form C19.

Similarly a warrant can be issued under s102 (1) of the Children Act 1989 to empower a constable to assist a person gain access to a child or inspect premises when the child is subject to a Supervision Order or living:

In a children’s home;
In a private fostering arrangement;
With a childminder;
In a day care establishment;
In a nursing home;
In a psychiatric unit;
In an independent school.

Where a warrant is likely to be needed Team/Assistant Team Manager must complete an application using Form C12.

SUPPLEMENTARY ORDERS

These can be applied for at the same time as the application for an Emergency Protection Order. An order:

To disclose the child’s whereabouts;
Authorising the search for, taking charge of, and delivery of a child;
Authorising the search for another child may be used when there is reason to believe another child, whose name is not known, may be at similar risk to the named child on an EPO.

End

Emergency hearings