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EPOs – Tips & Reminders

Ten simple tips and reminders for strengthening any EPO application.

EPOs – Tips & Reminders

By Raisa Saley

  1. Always take a copy of Re X [2006] EWHC 510 (Fam) with you to Court for any application for an Emergency Protection Order (particularly if you are likely to go before a lay bench).
  2. The test for an EPO is: Such order should not be made unless the 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.
  3. Save in wholly exceptional circumstances, parents must be given adequate prior notice of the date, time and place of any application by a Local Authority. They must be given proper notice of the evidence the Local Authority is relying upon.
  4. Where the application is without notice, the Local Authority must make a compelling case for applying without first giving the parents notice. An application without notice 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.
  5. Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without notice. Cases of sexual abuse where the allegations are inchoate and non-specific, and where there is no evidence of immediate risk of harm to the child, will rarely warrant an EPO either.
  6. It is important that both the applicant Local Authority and the court hearing the case approach every application with an anxious awareness of the extremely gravity of the relief being sought and a scrupulous regard for the European Convention Rights of both the child and the parents.
  7. The evidence in support of the application for an order must be full, detailed, precise and compelling. Un-particularised 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.
  8. The Court can (and often will) hear oral evidence. Evidence should come from the best source – usually the social worker with direct knowledge of the case.
  9. It is important that those who are not present should  be able to know what oral evidence and other material have been put before the Court. Every without notice hearing should be tape recorded or recorded in writing by a full note being taken by a dedicated note taker who has no other role to play in the hearing. Those acting for the Local Authority must ensure a full note is taken and given to the parents at the earliest possible opportunity.
  10. An EPO lasts for a specified period not exceeding eight days, which can be extended once for up to seven days. No order should be made for any longer than is absolutely necessary to protect the child. Where the order is made on an application without notice, 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.