Interim Removal and Emergency Protection Orders

Urgent appeals in cases where the court orders removal of a child

This is a post by Sarah Phillimore

What do you do if the court orders the removal of a child and you need to appeal against that order urgently? If the removal is set to happen that day you will need to ask the court to ‘stay’ the order while you seek an urgent appeal.

The case of N (Children: Interim Order/ Stay), Re [2020] EWCA Civ 1070 (12 August 2020) is a recent decision on this point.

On 6th May 2020, 3 children were removed from their mother’s care. They were already the subject of interim care orders.

The local authority clearly had concerns about the mother’s ability to stay separate from the father and had asked the court to remove the children before, unsuccessfully. However at a one day hearing in May, hearing evidence only from the social worker, without the presence of the Guardian, who was unable to attend and the further difficulty that interpreters were required, the court ordered the children’s removal.

The mother’s barrister asked for the court order to be ‘stayed’ i.e. not put into effect until an urgent application could be made to appeal. The parents had repeatedly asked to be allowed to give evidence if the Judge was contemplating removal.

The application for a stay was refused and the children went to foster care that evening. The mother’s counsel had difficulty taking instructions due to lack of interpreter once the remote hearing had ended. Although application for permission to appeal was made on 11th May, it wasn’t accompanied by a request for a stay and there was no transcript of the judgment until 29th May. Permission to appeal was eventually granted on 29th June, the appeal was successful, and 3 months after they had been removed, the children returned to their mother.

The Court of Appeal decided a short stay should have been granted in this case:

I consider that the request for a short term stay should have been granted, particularly where the mother was at a disadvantage in instructing her lawyers. The reasons given by the judge fell short of justifying refusal. The nature of the risks involved in the children remaining at home for a further very short period can be measured by the fact that the court itself had sanctioned them remaining there between 27 April and 6 May for procedural reasons. Further, as the judge herself acknowledged, there was no real risk to the children being taken out of the country and, bearing in mind that the family had not disappeared in the previous six months when it could have done, the prospect of internal flight was hardly likely either.

What do I have to do if the Judge refuses my request for a short stay?

Hopefully it will be possible for the Judge to agree a short delay before any order takes effect in order to give you an opportunity to make an urgent appeal. If however the Judge refuses, you need to act quickly.

Any application for a longer stay i.e. while you are waiting for an actual decision on an application to appeal, is is determined by the principles set out in Hammond Suddart Solicitors v Agrichem International Holdings Ltd. [2001] EWCA Civ 2065.

I received the following advice via email after making such an application a few weeks before this judgment was delivered. You are encouraged to make your application in working hours but if you can’t call the security officers at the Royal Courts of Justice on 020 7947 6260, who will refer you on to the Duty Clerk.

Advice from the court received 14th August 2020


URGENT applications should be submitted to the court via email to this address: civilappeals.urgentwork@justice.gov.uk between 9am and 4.15 pm

What may be deemed as urgent?

Cases where in the interests of justice a substantive decision is required within 7 days. The types of work listed below fall into this category
• Child cases ;
• Committal appeals;
• Applications for stay of removal;
• Evictions;
• Cases (including ancillary applications) with a hearing listed in the Court of Appeal within the next month;
• Applications for an urgent stay of execution;
• Covid-19 related cases e.g. medical guidance regarding priority patients;

NON URGENT applications should be emailed to: civilappeals.registry@justice.gov.uk

All appellant’s notices will be accepted in the first instance on the basis that they may be rejected at a later date for want of jurisdiction.

Fresh applications for permission to appeal must include:
• a completed appellant’s notice (form N161);
• grounds of appeal on a separate sheet;
• an undertaking to pay the appropriate court fee via your PBA account, a completed Help with Fees form (EX160) or by contacting the *RCJ Fees Office (see below); and
• a copy of the sealed order being appealed.
• A transcript of judgment should also be provided if available (or should be ordered immediately)

*Access to the Fees Office will be on an appointment only basis.
An appointment can be booked from the 1 June 2020 by calling the telephone number 0207 947 6527 each Monday, Wednesday and Friday between the hours of 10am to 2:00pm or by emailing the following address feesofficecounterbooking@justice.gov.uk . If you are unable to attend in person please contact the Fees Office by telephone or email and a member of the team will assist you.

The public counter at E307 (registry) remains closed and the drop box facility is no longer operating.

Once the appellant’s notice is issued, all queries should continue to be emailed to the following addresses:
Civilappeals.cmsa@justice.gov.uk
Civilappeals.cmsb@justice.gov.uk
Civilappeals.cmsc@justice.gov.uk
Civilappeals.listing@justice.gov.uk
Civilappeals.associates@justice.gov.uk

As our IT capacity for remote working increases we will look to provide a limited telephone service to our users.

The court will issue orders electronically for the time being.

Taking your child away ‘in the interim’ – what does this mean and how does it happen?

In this post we shall look at the ways the state is allowed to take a child away from his/her parents BEFORE all the relevant evidence has been seen and heard by a Judge at court hearing.

If your child is currently AT HOME under a care order and the LA wish to remove him or her, please see this post ‘Child at home under a care order’ 

If you agree to your child being removed from your care, your child will be accommodated by the local authority under section 20 of the Children Act 1989.

If you DO NOT AGREE, there are only two ways your child can be taken away without your agreement:

  • by the police using their powers under section 46 of the Children Act 1989, for a maximum of 72 hours only
  • by an order of the court
    • Emergency Protection Order (EPO) under section 44 of the Children Act 1989; or
    • Interim Care Order (ICO) under section 38 of the Children Act 1989.

Taking children away from their parents before all the evidence has been looked at is obviously one of the most difficult and controversial issues in care proceedings.

This is a really helpful post by suesspicious minds: ‘Social Services are asking me to put my child in care and they want me to do it now’.

When is it right to remove a child on a ‘interim basis’ i.e. before all the evidence has been heard and considered by the Judge at a Final Hearing?

These cases are often very finely balanced – if a child is taken from home and goes into foster care for a few months and then is returned home, this obviously has the potential to cause the child (and the parents) a lot of emotional upset. However, if a child isn’t removed from home when he should have been, the child could be left in a dangerous situation for a number of months while a final hearing is arranged at court.

So this issue has generated a lot of discussion and case law, particularly as Local Authorities reacted to the tragic death of Peter Connelly  in 2007 and were keen to intervene to prevent another child dying or being seriously injured.

Removal under an Interim Care Order – ICO

First stage

The first and important thing to be very clear about – the court CANNOT agree with a LA’s plan to remove  a child from home before the final hearing under an ICO, unless it determines an interim care order is lawful in the first place.  Interim care orders come under section 38 of the Children Act 1989. The court must have ‘reasonable grounds’ to believe that section 31(2) is satisfied i.e. that the child has suffered or is at risk of suffering significant harm.

We have examined the concept of ‘significant harm’ in more detail in another post.

Second stage

If the court does find significant harm has happened or is likely to happen, it then goes on to the second stage; is removing the child the right thing to do now?

This issue has generated a lot of case law.

  • The case of Re GR in 2010 pulled together what the case law was saying about when interim removal was appropriate.  See also Re S (children) (interim care order) [2010] EWCA Civ 421
  • Another useful case is the Court of Appeal’s decision in K (Children) in September 2014.
  • In the case of NL in 2014 the court allowed an appeal against an interim removal because of very serious irregularities in the procedure and a failure by the Magistrates to properly consider the legal test.
  • Procedural fairness is always very important. See G (Children: Fair Hearing) [2019] EWCA Civ 126 – here the mother’s consent to her children’s removal was secured by inappropriate behaviour on the part of the judge : ‘in the form of inappropriate warnings and inducements. Regardless of the fact that the mother was legally represented, she did not get a fair hearing. There has been a serious procedural irregularity.

And most recently the case of C (A Child: Interim Separation) [2020] EWCA Civ 257 (26 February 2020) from which we can summarise:

(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.
(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.
(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower (‘reasonable grounds’) threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.
(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.
(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.”

“The test is whether the child’s safety is at risk and, if so, any removal should be proportionate to the actual risks faced and in the knowledge of alternative arrangements which would not require separation.”

The reason that the court must not try to look at the wider issues in the case at an interim hearing is because it just wouldn’t be fair to anyone to do so. Interim hearings are usually arranged urgently and you will be lucky to get any more than a day of the court’s time to hear them. There simply won’t be time to give all the issues the attention they deserve. However, the court can’t ignore likely future outcomes and when considering what is in a child’s best interests must take account of all the circumstances and will concern itself with the reality of the child’s situation.

Proportionality is a key concept in family law, arising from Article 8 of the European Convention on Human Rights [ECHR]. Interfering with a child or parent’s right to a family life can only be allowed if it lawful, necessary and proportionate. If you want to read more about the impact of the ECHR on family law, here is a useful article.

Therefore, if the LA wanted to take a child away at an interim stage because there were concerns about an untidy house or couple of incidents of shouting, that almost certainly would not be considered proportionate. But if the child had a broken arm and no one could explain how it happened, interim removal almost certainly would be considered proportionate.

Interim removal of babies

The most difficult cases are those involving new born babies. This is obviously an extremely serious and draconian intervention in family life. Hospitals are unlikely to be willing to keep mother and baby for more than a few days after they are both fit to be discharged.

There appears to be a worrying trend that local authorities will come to court for interim removal hearings shortly after the baby’s birth without information about placements where the baby could remain with at least one parent. They justify this on the basis that ‘it is not our plan’. Regardless of what the LA does or does not wish to happen, they have an obligation to provide relevant information to the court to enable it to make the right decision for the child. A great deal of time and energy is often wasted at court chasing information which could and should have been provided in advance.

See further the case of L (A Child) [2013] – which examined when removal of a new born baby is lawful. In this case, the baby was returned to his mother’s care pending final hearing.

What happens next?

The Court of Appeal reminds us that even when the court has decided it is right to make an interim care order it must think about what is going to happen to the child after the order is made – where is the child going to live? What kind of contact will the parents have? This evidence is ‘bound to be relevant to the welfare analysis and proportionality evaluation’.

Emergency Protection Orders

There is obviously going to be some overlap between cases where the LA apply for removal under an EPO or an ICO.

One important difference between the two is that an EPO can only last for 8 days when it is first made and then can only be extended for a further 7 days. Interim care orders can last for a lot longer. See this article by Andrew Pack about how time limits for ICOs have been extended by the Children and Families Act 2014.

EPOs should only be used when a situation is urgent. It is essential that courts consider and apply the guidance in the case law about how to approach EPOs, given the serious consequences of making such an order.

See re X (Emergency Protection Orders) [2006] 2 FLR 701. Here the Judge referred to the guidance of an earlier case and made it clear this guidance was ‘essential reading’ for any court making a decision about an EPO.

See paragraph 64 of his judgment onwards:

Very serious reasons needed for an EPO

  • An EPO, is a ‘draconian’ and ‘extremely harsh’ measure, requiring ‘exceptional justification’ and ‘extraordinarily compelling reasons’. The court shouldn’t make an EPO unless its necessary and no other less radical form of order will keep the child safe; ‘imminent danger’ to the child must be ‘actually established’.
  • Both the local authority and the court have a very serious responsibility to approach every application with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents.

The EPO must be a proportionate response to the concerns about the child

  • 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 they should think about making an application for 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 to the other side] application the court should think about making an order for only a very short time.

Proper evidence is needed to justify an EPO and parents need to know what it is

  • The evidence in support of the application for an EPO must be full, detailed, precise and compelling. 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 told that the matter is going to court and given advance warning of the evidence the LA will rely on.
  • Where the application for an EPO is made [without notice] the local authority must make out a compelling case for applying without first telling the parents notice. An application [without notice] will usually only be considered OK  if the case is genuinely one of emergency or other great urgency.
  • The evidential burden on the local authority is even heavier if the application is made [without notice]. Anyone who applies to the court without the other side knowing about it, have a duty to be honest and open about all the relevant circumstances known to them.
  • 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 mere fact that the [court is under obligations to record the evidence] 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 [without notice] 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 LA’s lawyers should act quickly to provide the parents or their lawyers copies of any material considered by the court so the LA lawyer should make a very good note of the proceedings.

Is there an alternative to an EPO?

  • Section 44(5)(b) of the Children Act 1989 sets out that the LA can only make decisions about the child if it is  ‘reasonably required to safeguard or promote the welfare of the child’. Section 44(5)(a) provides that the LA shall remove children from their parents under s 44(4)(b)(i) ‘only … in order to safeguard the welfare of the child’.
  • The local authority must think very hard about whether or not 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 of 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 is a very good idea for all LAs to have in place procedures to ensure both that the required decision-making actually takes place and that it is appropriately documented.

LA needs to keep the case constantly under review and arrange proper contact.

  • The LA has a positive duty under Article 8 of the ECHR to keep under review any decision to keep a child out of his parents care and to think about how they could be reunited. Secion 44(10)(a) and s 44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under s 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 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 to any direction the court makes under s 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.

Further Reading

For information about what the courts expect from practitioners at an urgent hearing and how court bundles should be prepared, see this guidance from Cobb J in 2014.