Care Proceedings and Emergency Orders

This page provides information on the powers of the local authority and the police to take action to protect a child who is suffering harm or at risk of suffering harm. This page focuses on the measures which can be taken where a child is considered to be at risk of imminent harm.

Emergency Protection Orders

What is an Emergency Protection Order?

Emergency Protection Orders are governed by section 44 Children Act 1989.

Section 44(4) outlines the three main effects of an EPO:

  • It operates to direct any person to comply with any request to produce the child to the applicant.
  • The order provides for the removal of the child to accommodation provided by the applicant; or alternatively it governs the prevention of the child’s removal from a hospital or other place in which they have been accommodated immediately prior to the order.
  • An EPO gives Parental Responsibility for the child but does not remove it from anyone else who has PR in respect of the child.

There are other effects of an Emergency Protection Order which can include:

  • a direction that a medical or psychiatric examination or other assessment of the child takes place. However, the child may, if they are of sufficient understanding to make an informed decision, refuse to have the examination or other assessment.
  • a direction that prevents a person from having contact with the child.

This order is obtained by the court to ensure a child’s immediate short-term protection. It is a serious step and should only be taken if no other measure will suffice.

When will an Emergency Protection Order be made?

The test which will be applied in determining whether an EPO will be granted is dependent on the type of applicant.

Firstly, under s 44(1)(a) where any person makes an application to court for an EPO, the court may make the order, but only if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if:

  • they are not removed to accommodation provided by or on behalf of the applicant; OR
  • they do not remain in a place in which they are currently being accommodated.

Secondly, in the case of an application by the local authority, the local authority may rely on the test outlined above or on the ground under s 44(1)(b) that:

  • enquiries are being made with respect to the child under s 47(1)(b); and
  • those enquiries are being frustrated by access to the child being unreasonably denied 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. For more information on investigations under s 47, see our information page on Child Protection – Referral, assessment and outcomes.

Thirdly, in the case of an application by an ‘authorised person’ (an authorised Police officer or the NSPCC), an application can be made under s 44(1)(c) on grounds that:

  • the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm;
  • the applicant is making enquiries with respect to the child’s welfare; and
  • 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.

How long can an Emergency Protection Order last?

Initially an EPO can last for a maximum of 8 days. In exceptional circumstances, the court can extend the duration of the order for a further 7 days if there is reasonable cause to believe that the child could be at risk of significant harm if the order is not extended.

What is an exclusion requirement?

An EPO can include an exclusion requirement; this excludes a person, who poses a risk to the child, from the home. The person with whom the child is to live must agree to make sure that the named person does not come to the house. The court can attach a power of arrest to the exclusion requirement so that if breached, the police can arrest the excluded person. Alternatively, the court can accept an undertaking from the relevant person that they will not go to the home.

What are the duties of Children’s Services under an EPO?

Where a child is subject to an EPO, Children’s Services must:

  • consult with the parents or those with Parental Responsibility as to their plans for the child;
  • draw up a written care plan;
  • provide a reasonable amount of contact to parents, to any person with whom the child was living with immediately before the order was made, and to those with Parental Responsibility (unless the court has ordered otherwise).
  • If Children’s Services are satisfied that the child is safe to be returned or removed from the place they are held, they can return the child or allow the child to be removed.

Police Protection

In emergency situations, where there is not enough time to get an Emergency Protection Order, the police can act to protect a child.

A Police Constable can remove a child from accommodation or prevent removal, (e.g. from a hospital), where they have reasonable cause to believe the child would otherwise be likely to suffer significant harm. Police protection can only last for a maximum of 72 hours.

The police constable should:

  • inform the relevant Local Authority where the child resides;
  • inform the child’s parents, any persons with Parental Responsibility or the child’s carer of the steps which have been taken and the steps which they intend to take;
  • inform the child of the steps being taken and where practicable find out the child’s wishes and feelings; and
  • allow the parent, any persons with Parental Responsibility or the child’s carer to have a reasonable amount of contact.
  • Whilst the child is kept under police protection the Police Constable can apply to the court for an Emergency Protection Order (see above for information on this).

Care Proceedings

What are Care Proceedings?

If Children’s Services believe a child is at risk of significant harm, they can apply to court for permission to take action to protect the child – these are known as Care Proceedings.

Care Proceedings may follow from a Section 47 investigation conducted by Children’s Services or after a legal planning meeting. For more information on investigations under section 47 and legal planning meetings, see our information page on Child Protection – Referral, assessment and outcomes.

A comprehensive assessment of the family’s circumstances will be undertaken, including the risk of harm to the child and the capability of the parent’s to make adequate changes. The courts will decide, after careful consideration, if a Care Order or Supervision Order is required.

What is a Care Order?

Where a child is made subject to a care order, the local authority is given Parental Responsibility and will share it with current Parental Responsibility holders, for example, the child’s parents. However, the Local Authority can limit the ability of persons to exercise their Parental Responsibility insofar as necessary to safeguard the child.

Important decisions, for example, where the child will live, are made by the local authority.

A Care Order will last until the child reaches the age of 18, unless discharged at an earlier date.

What is a Supervision Order?

A Supervision Order imposes a duty on the local authority to ‘advise, assist and befriend’ the child. It may require a child to live in a specified place, do certain activities and report to a particular place at a set time.

An important distinction between a Supervision Order and a Care Order is that a Supervision Order does not confer Parental Responsibility to the Local Authority.

A supervision order can last for one year, and may be extended yearly to a total of 3 years. It will last until the child reaches the age of 18, unless discharged at an earlier date.

What is an Interim Order?

The court can consider whether to make an Interim Care Order or Interim Supervision Order which places the child temporarily under the care or supervision of the local authority while care proceedings are ongoing.

An Interim Care or Supervision Order will be made where the court has reasonable grounds for believing the threshold criteria have been met (see below for the threshold criteria).

An Interim Care Order can last no longer than eight weeks unless it is extended by the court, in which case it can last for a further four weeks.

Who can apply for a Care or Supervision Order?

Only a local authority or ‘authorised person’ can apply for a Care or Supervision Order. At present, the only authorised person is the NSPCC.

The court cannot initiate care proceedings. If the court believes care proceedings are appropriate in a particular case it can direct that the local authority conduct a Section 37 investigation which may lead to the local authority initiating care proceedings.

When will a Care or Supervision Order be made?

For a Care or Supervision Order to be made, the court must be satisfied that the child concerned is suffering, or is likely to suffer, significant harm; and that the harm, or likelihood of harm, is attributable to:

  • the care given to the child, or likely to be given to him, if the order were not made, not being what it would be reasonable to expect a parent to give to him/her; or
  • the child being beyond parental control.

These are known as the ‘threshold criteria’. The duty is on the local authority to show that the ‘threshold criteria’ has been met.

A Care Order cannot be made once a child has reached the age of 17.

What are the duties of the Local Authority under a care order? 

When a care order has been made, the Local Authority must:

  • receive the child into its care for the duration of the Care Order (s 33(1) Children Act 1989);
  • provide accommodation and maintenance for the child (s 23(1));
  • safeguard and promote the child’s welfare (s 22(3));
  • before making any decision in respect of the child, the LA must ascertain the wishes and feelings of the child, those with Parental Responsibility, parents and anybody else relevant to the child, and give consideration to those wishes and feelings (s 22(4));
  • keep under review whether to apply to discharge the Care Order;
  • appoint an independent visitor for the child in some circumstances;
  • make arrangements for the care plan to be reviewed by an Independent Reviewing Officer;
  • advise, befriend and assist the child with a view to promoting their welfare once they are no longer looked after.

Who will the child live with if a Care Order is made?

Where a Care Order has been made, it is the decision of the Local Authority where the child will live. The child can be placed either with their parents, relatives, in a children’s home or with foster parents.

In certain circumstances, the child can be placed with their parents while still being subject to a care order. The local authority can, at any time, place the child in alternative accommodation if concerns arise. This can happen without the parents receiving prior notice if the situation is urgent.

Can I have contact with the child when there is a Care Order?

Under s 34 Children Act 1989, there is a duty on the designated local authority to provide the parent(s) and certain other persons, including those who have Parental Responsibility for the child, with a reasonable amount of contact.

For more information see our page on Contact with a child in care.

Can I discharge a Care or Supervision Order?

An application to discharge a Care or Supervision Order can be made by the child, the parent, the local authority or any person with Parental Responsibility.

The applicant must demonstrate that there is a significant change in circumstances since the care order or supervision order was granted. If you are considering applying to discharge an order, we strongly advise that you seek independent legal advice.

Can I get legal aid?

If you receive a “letter before proceedings” or “letter of issue” you will be eligible for non means, non merits tested legal aid.

  • Letter before proceedings: This letter is sent to the parents where Children’s Services decide that further time should be given. The letter is intended to warn parents that if the care given to the child does not improve, Children’s Services will initiate court proceedings. 
  • Letter of issue: This letter is sent to the parents when Children’s Services decide it is not in the child’s best interests for the current circumstances to continue and the child should instead removed and placed in care. The letter explains that Children’s Services intend to start care proceedings. 

We would advise that you seek legal advice and representation in such circumstances. The Local Authority should provide you with a list of local Child Law solicitors, but can also refer to the following to find solicitors locally: