Strand, London, WC2A 2LL
B e f o r e :
|Re X: Emergency Protection Orders|
Crown Copyright ©
Mr Justice McFarlane :
Summary of history
a) Possible sexual abuse;
b) Unhealthy beliefs within the family regarding spirits and ghosts;
c) Symptoms of illness being fabricated or induced in the child;
d) The mother's anxiety about the child being bullied at school, where the school have found no evidence of this; and
e) The father's history of mental ill-health.
a) Recording confidential material given during a case conference;
b) Emergency Protection Orders
c) Fabricated or induced illness allegations.
Recording confidential material given to a Case Conference
a) If the circumstances are sufficient to justify the exclusion of the parents from part of a case conference (such circumstances are described in the paragraphs of guidance referred to above), or the parents are otherwise absent, a full minute should nevertheless be taken of everything that is said during the conference;
b) If it is considered necessary to treat part of what is minuted as confidential from the parents, that part of the minutes should be disclosed for approval to the professionals who attended the conference, but that part of the draft/approved minutes should be maintained separately from the body of the minutes which are sent to the parents;
c) The non-confidential section of the minutes should expressly record at the appropriate stage that confidential information was disclosed or discussed;
d) The need for continued confidentiality with respect to confidential sections of the minutes should be kept under review by the conference chair, with confidentiality only being maintained if it continues be necessary.
The Emergency Protection Order
(i) The mother was suffering from MSBP/FII.
(ii) That there were allegations of sexual abuse of X, (without any proper indication that these were historic and that the parents had acted with complete propriety in dealing with them and protecting X).
(iii) That the mother was projecting her own trauma onto X.
(iv) That the mother was not complying with the child protection plan.
(v) That there had been no mental health assessment on the mother (ignoring the fact that the same was in the process of being carried out).
(vi) That the father was mentally ill, (without any reference to the fact that his condition was well controlled and – as the team manager accepts – she knew this).
(vii) That the father suffered auditory hallucinations relating to X (ignoring the fact that these were described as being historic in December 2003).
(viii) That there was a decline in the parents' attitude.
(ix) That X had twice been presented to doctors that day.
(x) Mother described X at hospital that day as "riddled with worms" (despite the absence of any such record in medical notes or in the team manager's statements anywhere to that effect).
(xi) That the CPN said that father would harm/kill himself and/or X if given notice of the proceedings
(xii) That he has or had ceremonial swords, with the inference to be drawn that they might have been a mode of carrying out his threat.
(xiii) That mother was demanding treatment at hospital (when she was only demanding examination).
"It would be unjust to this child to allow a decision to stand which so affected his future without at least understanding the main bases upon which the decision was reached."
That was not an EPO case, but the principles of justice and fairness must equally apply in an emergency case given the draconian effect of the order that is being made. Where the decision is required urgently, if the justices decide to grant an EPO that decision can be announced and the order granted, with the reasons being reduced to writing after that. The emergency nature of the application, whilst requiring prompt determination, does not absolve the court of its duty to give a reasoned explanation for its decision.
'Social services are concerned regarding mother's mental health, previous history of suspected Fabricated Illnesses. X is on CPR for neglect.'
'SW and police attend hospital. Case conference held today. SW state plan made to remove X because of concerns re Fabricated or Induced Illness.'
Emergency Protection Orders: Law and Practice
a) There is reasonable cause to believe that the child is likely to suffer significant harm if:
i) he is not removed to accommodation provided by or on behalf of the applicant; or
ii) he does not remain in the place in which he is then being accommodated.
Alternatively, an order may be made if access to the child for the purpose of assessment is being denied.
'The purpose of the new order, as its name suggests, is to enable the child in a genuine emergency to be removed from where he is or be kept where he is, if and only if this is what is necessary to provide immediate short-term protection.' (Children Act 1989 Guidance and Regulations Volume 1, page 51).
The words 'genuine emergency' and 'only what is necessary to provide immediate short-term protection' cannot, in my view, be stressed enough.
"The matters I have just been considering are so important that it may be convenient if I here summarise the most important points:
(i) An EPO, summarily removing a child from his parents, is a 'draconian' and 'extremely harsh' measure, requiring 'exceptional justification' and 'extraordinarily compelling reasons'. Such an order should not be made unless the 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'.
(ii) 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 of the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents.
(iii) Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety.
(iv) 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 CAO under s 43 of the Children Act 1989.
(v) 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.
(vi) The evidence in support of the application for an EPO must be full, detailed, precise 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.
(vii) 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.
(viii) 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.
(ix) 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 of law.
(x) 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 rr 20, 21(5) and 21(6) of the Family Proceedings Courts (Children Act 1989) Rules 1991. The FPC must 'keep a note of the substance of the oral evidence' and must also record in writing not merely its reasons but also any findings of fact.
(xi) The mere fact that the FPC is under the obligations imposed by rr 21(5), 21(6) and 21(8), 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.
(xii) 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 s 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 of 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.
(xiii) Consistently with the local authority's positive obligation under Art 8 to take appropriate action to reunite parent and child, s 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.
(xiv) Section 44(13) of the Children Act 1989 requires the local authority, subject only to any direction given by the FPC 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.
a) The hearing ought to be tape recorded. Most magistrates' courts are not wired up for regular recording, but in my view resources ought to be made for the introduction of a small portable tape recorder (or even a dictation recorder). In the absence of such provision then a dedicated note taker, in addition to the clerk, should attend the hearing with the task of compiling a verbatim note;
b) Paragraph (xi) of the B Council guidance limits the requirement to provide information to parents, where the hearing has taken place without notice, to cases where the parents ask for the information. I would go further and say that unless there is very good reason to the contrary, the parents should always be given a full account of the material submitted to the court, the evidence given at the hearing, the submissions made to support the application and the justices reasons whether they ask for this information or not.
Induced or fabricated illness
Criticism of the process by which the EPO was obtained in this case
(a) There was no emergency
(b) The role of the social work team
(c) The role of the local authority lawyer
(d) The role of the Family Proceedings Court
a) Receive detailed written and/or oral evidence from the most reliable source available;
b) Be advised upon the legal context within which their decision must be made;
c) Give reasons which adequately address both the factual evidence and the legal context.
i) Should the application proceed without notice to the parents?
ii) Are the grounds for the EPO made out?
If the decision on point (i) is that there are insufficient grounds for proceeding without notice, then the court may direct that the application be made on notice (FPR 1991, r 4.4(5)). Given the serious consequences that flow from the making of an EPO, and its impact upon the ECHR Art 8 rights of a child and her family, and given the clear impact that proceeding without notice has upon the family's Article 6 rights, it is important for the court to be fully satisfied that there is a pressing need for without notice hearing before deciding to proceed on such a basis.
Emergency Protection Orders: good practice guidance
a) The 14 key points made by Munby J in X Council v B should be copied and made available to the justices hearing an EPO on each and every occasion such an application is made;
b) It is the duty of the applicant for an EPO to ensure that the X Council v B guidance is brought to the court's attention of the bench;
c) Mere lack of information or a need for assessment can never of themselves establish the existence of a genuine emergency sufficient to justify an EPO. The proper course in such a case is to consider application for a Child Assessment Order or issuing s 31 proceedings and seeking the court's directions under s 38(6) for assessment;
d) Evidence given to the justices should come from the best available source. In most cases this will be from the social worker with direct knowledge of the case;
e) Where there has been a case conference with respect to the child, the most recent case conference minutes should be produced to the court;
f) Where the application is made without notice, if possible the applicant should be represented by a lawyer, whose duties will include ensuring that the court understands the legal criteria required both for an EPO and for an application without notice;
g) The applicant must ensure that as full a note as possible of the hearing is prepared and given to the child's parents at the earliest possible opportunity;
h) Unless it is impossible to do so, every without notice hearing should either be tape-recorded or be recorded in writing by a full note being taken by a dedicated note taker who has no other role (such as clerk) to play in the hearing;
i) When the matter is before the court at the first 'on notice' hearing, the court should ensure that the parents have received a copy of the clerk's notes of the EPO hearing together with a copy of any material submitted to the court and a copy of the justices' reasons;
j) Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without notice;
k) 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;
l) Cases of fabricated or induced illness, where there is no medical evidence of immediate risk of direct physical harm to the child, will rarely warrant an EPO;
m) Justices faced with an EPO application in a case of emotional abuse, non specific allegations of sexual abuse and/or fabricated or induced illness, should actively consider refusing the EPO application on the basis that the local authority should then issue an application for an interim care order. Once an application for an ICO has been issued in such a case, it is likely that justices will consider that it should immediately be transferred up for determination by a county court or the High Court;
n) The requirement that justices give detailed findings and reasons applies as much to an EPO application as it does to any other application. In a case of urgency, the decision may be announced and the order made with the detailed reasons prepared thereafter;
o) Where an application is made without notice, there is a need for the court to determine whether or not the hearing should proceed on a without notice basis (and to give reasons for that decision) independently of any subsequent decision upon the substantive EPO application.
[end of judgment]