Community Care Inform

Sections 41 - 50

SECTION 41 – REPRESENTATION OF CHILD AND OF HIS INTERESTS IN CERTAIN PROCEEDINGS
This section ensures that children who need to be represented in court proceedings are represented. It confers a duty upon the court to appoint a CAFCASS officer for certain children and a separate power to appoint solicitors for children.

CAFCASS Officers.

Subsection (1) requires the court to appoint a CAFCASS officer (or Welsh equivalent) for the purpose of any “specified proceedings” (see below) unless it is satisfied that it is not necessary to do so in order to safeguard the child’s interests.
Subsection (2) requires the CAFCASS officer, in accordance with rules of court, to safeguard the interests of the child.
Subsection (11) disapplies the strict rules of evidence so as to permit relevant statements or evidence in the reports of CAFCASS officers appointed under this section to be taken into account in court.

Solicitors
The court may (not must) appoint a solicitor for a child who does not have one (subsections (3) and (4)). The power to appoint does not arise unless at least one of the following circumstances is satisfied:
(i) no CAFCASS officer (or Welsh equivalent) has been appointed;
(ii) the child has sufficient understanding to instruct a solicitor and wishes to do so;
(iii) it appears to the court that it would be in the child’s best interests to be represented by a solicitor.
The solicitor must act in accordance with rules of court (subsection (5)).

“Specified proceedings”
This section applies in “specified proceedings”. Subsection (6) lists those proceedings which are specified for this purpose, namely proceedings:
(a) on an application for a care order or supervision order;
(b) where a court is considering whether to make an interim care order, having given a direction to conduct investigations under s.37(1) of the Children Act as a result of concerns revealed in family proceedings;
(c) on an application for discharge of a care order or for variation or discharge of a supervision order;
(d) on an application under s.39(4) of the Children Act (application for supervision order to be substituted for a care order);
(e) where the court is considering whether to make a residence order in respect of a child under a care order;
(f) with respect to contact with a child under a care order;
(g) under Part V (various proceedings relating to the protection of children);
(h) an appeal against decisions made in the above proceedings;
(i) on an application for the making or revocation of a placement order under the Adoption and Children Act 2002;
(j) other proceedings specified by rules of court.

Other relevant legislation
The child welfare “paramountcy principle” applies where, in proceedings under this section, the court determines any question with respect to the upbringing of a child. See the note to section 1 of the Children Act 1989.
The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.
The court may require a child welfare report to be produced where it is considering any question with respect to a child in proceedings under this section. See further, the note to section 7 of the Children Act 1989.

Guidance and other relevant material
The new version of Chapter 1 of the Children Act guidance on Court Orders is available at www.justice.gov.uk/guidance/careproceedings.htm. Note, there is separate guidance for England and for Wales. The new Public Law Outline is also available at that web-site address.

SECTION 42 - RIGHTS OF OFFICER OF THE SERVICE TO HAVE ACCESS TO LOCAL AUTHORITY RECORDS
This section permits CAFCASS officers (or Welsh equivalent) to have access to the local authority records that they (the officers) need in order to discharge their duties towards the children that they represent under section 41.

Subsection (1) provides that an officer appointed under section 41 shall at all reasonable times have the right to examine and take copies of a range of different records. These include records held by a local authority in connection with an application made in respect of a child under the Children Act and any other records compiled in connection with the delivery of social services for a child in respect of whom an application was made.

Subsections (2) and (3) ensures that a copy of a record taken by a CAFCASS officer is admissible in court.

PART V – PROTECTION OF CHILDREN

Where there are child protection concerns about the child of a service family stationed abroad, reference should instead be made to the Armed Forces (Protection of Children of Service Families) Regulations 2009, which are available at www.opsi.gov.uk/si/si2009/uksi_20091107_en_1

SECTION 43 - CHILD ASSESSMENT ORDERS
This section applies where a local authority has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm (that is, reasonable cause to suspect that the threshold criteria for the making of a care order are present). It is all about overcoming parental and other resistance to a local authority moving from “reasonable cause” to a position where the authority can make a final decision as to whether to apply for a care or supervision order, or to decide whether to continue with a pending application for such an order. The section allows a child assessment order (CAO) to be made with a view to providing a local authority with sufficient information to decide whether it wishes to seek a care order.

The general test
Subsection (1) sets out the general test for the making of a child assessment order. On a local authority’s application, a court may make a child assessment order if (but only if) it is satisfied that following criteria are all made out:

(a) that the local authority (not the court) has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm;

(b) that an assessment of any one of three matters is required in order to enable the local authority to determine whether a child is suffering, or is likely to suffer, significant harm. Those matters are: the child’s health; the child’s development; and the way that the child has been treated;

(c) it is unlikely that an assessment will be made unless an order is made or it is unlikely that a satisfactory assessment will be made.

Before the hearing of the application, the local authority must take such steps as are reasonably practicable to give notice of the application to the persons mentioned in subsection (11), such as the child’s parent, others with parental responsibility for the child and any other person caring for the child, as well as the child him/herself.

The NSPCC may also apply for child assessment orders.

The effect of a Child Assessment Order (CAO)
The CAO must specify the date by which assessment is to begin (subsection (5)). CAOs are designed to produce information rapidly. As a result, subsection (5) also provides that a CAO cannot have effect for more than seven days after the specified date for the beginning of the assessment.

Subsection (6) provides that any person in a position to produce the child must do so for the purposes of the assessment. The order confers authority to assess the child concerned (subsection (7)). However, a child retains the right to refuse a medical or psychiatric assessment or other examination (subsection (8)).

A child may be kept away from home for the purposes of the assessment only if, and to the extent that, that is authorised by the order and is necessary for the purposes of the assessment (subsection (9)). An order that authorises a child to be kept away from home must make provision as to contact (subsection (10)).

Relationship between child assessment orders and emergency protection orders (EPOs)
Necessarily (given the statutory criteria), a local authority must have child protection concerns if it is to apply for a child assessment order. It may be a difficult call, therefore, as to whether to apply for a child assessment order or an emergency protection order. This is recognised by this section which provides for inter-changeability between CAO applications and EPO applications: the court may treat an application for a CAO as an application for an EPO (subsection (3)).

In cases where both the criteria for a CAO and those for an EPO are made out, there is a presumption in favour of making an EPO. Subsection (4) prevents a CAO being made where the criteria for making an EPO exist and the court considers that an EPO “ought” to be made.

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The principle that an order should not be made unless that is better than making no order at all (the “no order principle”) applies where a court is considering whether to make an order under this section. See the note to section 1 of the Children Act 1989.

The court may require a child welfare report to be produced where it is considering any question with respect to a child in proceedings under this section. See further, the note to section 7 of the Children Act 1989.

Section 21 of the Children Act 1989 requires local authorities to make provision for the reception and accommodation of children who are removed or kept away from home under this section.

Section 91 of the Children Act 1989 prevents an application for a child assessment order being made within six months of a previous application (although the court has power to lift this prohibition)

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

Guidance and other relevant material
The updated (2006) version of “Working Together to Safeguard Children” (Inter-Agency working to safeguard and promote the welfare of children) is available at http://www.everychildmatters.gov.uk/_files/CC33F42E29C4BB89100BB0AF34A57386.pdf. Much of this is section 7 guidance and so must be followed by local authorities in the absence of a good reason not to do so.

Relevant court forms for applications for child assessment orders are available at http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetFormsCat.do?court_forms_category=Children%20Act

SECTION 44 - ORDERS FOR EMERGENCY PROTECTION OF CHILDREN
This section provides for Emergency Protection Orders (EPOs) to be made in order to protect a child from suspected imminent harm. Unlike other orders under the Children Act created with a view to protecting children, an EPO may be applied for by anyone. The EPO works by giving the applicant for the order an authority to remove a child (or to prevent removal, such as from a hospital) rather than directing the child’s removal.

The EPO must name the child unless that is not reasonably practicable, in which case it shall describe him/her as clearly as possible (subsection (14)).

The Criteria for Making EPOs
The core test
Under subsection (1)(a), there is a core test that must be met in every case. A court may make an EPO only if it is satisfied that the child in question is likely to suffer significant harm if either of the following does not happen:

(i) the child’s removal to accommodation provided by or on behalf of the applicant;

(ii) the child not remaining in a place in which s/he is currently being accommodated.

In other words, in one case there is a need to make something happen; in the other, a need to prevent something happening.

Additional tests for local authority applicants
Where the local authority is the applicant, subsection (1)(b) requires that the authority’s child protection enquiries must have been impeded in some way. Accordingly, a local authority is expected to try to investigate with the co-operation of, for example, parents before seeking the drastic powers conferred by this section. In more precise terms, these are the additional tests to be met where a local authority is the applicant:

(i) the court must be satisfied enquiries are being made under s.47(1)(b) (which means the local authority must have decided that a child in its area is suffering, or is likely to suffer, significant harm);

(ii) the court must be satisfied that the enquiries are being frustrated by access to the child being unreasonably refused. The refusal to provide access must be to a “person authorised by seek access” (as defined in subsection (2)); and

(iii) the court must be satisfied that the local authority has reasonable cause to believe that access to the child is required as a matter of urgency.

“Authorised person” applicants
The additional test for authorised persons (NSPCC and others authorised to apply for care orders under s.31 of the Children Act) essentially mirrors that for local authorities save for modifications to take account of the fact that only a local authority carries out s.47 enquiries – head (ii) above is modified so that it merely refers to the authorised person “making enquiries with respect to the child’s welfare”.

The Effect of an Emergency Protection Order
In broad terms, under subsection (4), an EPO has three effects: (i) it permits the person to whom the order was granted (“the applicant”) to require the child to be produced; (ii) it authorises removal of the child, or prevention of removal, by the applicant; (iii) it provides for the applicant to have parental responsibility for the child concerned.

Production of the Child
The existence of the EPO permits the applicant to request any person who is in a position to do so to produce the child. The request must be complied with as if it were a direction of the court.

Removal and Prevention of Removal
The EPO authorises the applicant to do any of the following:

(i) to remove the child to accommodation provided by or on behalf of the applicant (but, if removed, the child must be returned as soon as it appears safe to do so: subsection (10));

(ii) to keep the child in that accommodation;

(iii) to prevent the child’s removal from hospital (or elsewhere), being accommodation in which the child was accommodated immediately before the making of the order (but any removal, if prevented, must be allowed to proceed as soon as it appears safe to do so).

The applicant is not, however, required to do any of these things. Subsection (5)(a) provides that these powers must only be exercised in order to safeguard the welfare of the child concerned. If the powers are exercised, it is an offence intentionally to obstruct a person exercising the power (subsection (15)). The maximum penalty is a fine of up to level 3 on the standard scale (subsection (16)).

Under subsection (11), where a removed child is to be returned, s/he is to be returned to the person from whose care s/he was removed, unless that is not reasonably practicable, in which case return is to a parent, a person with parental responsibility or such other person as the applicant considers appropriate. However, a return in this last case requires the agreement of the court.

An EPO does not expire merely because (for example) a child is returned. Powers under the order remain exercisable if, as a result of a change of circumstances, it appears to the applicant necessary to exercise them. The EPO expires only in accordance with its terms (subsection (12).

Parental Responsibility
The existence of the EPO gives the applicant parental responsibility for the child. However, there is limited scope to exercise this responsibility. This is because subsection (5)(b) provides that the responsibility shall be exercised only to the extent that it is reasonably required to safeguard or promote the child’s welfare. In this regard, the applicant must have regard to the duration of the order. For example, one would not expect the applicant to be entitled to make decisions about the child’s schooling in the exercise of the parental responsibility conferred by an EPO.

Directions Attached to an Emergency Protection Order
An EPO may also give directions as to contact and as to assessments of the child (subsection (6)). These directions may be given when the EPO is made or at any time when it is in force (subsection (9)). Directions may also be varied in accordance with rules of court.

Contact
The usual rule is that the applicant must allow reasonable contact between the child concerned and the persons listed in subsection (13), such as parents, persons with parental responsibility, persons with whom the child was living immediately before the EPO (subsection (13)). However, this general rule is subject to a contact direction under subsection (6)). A contact direction may regulate the contact that is, or is not, to be allowed with the child in question. It may also impose conditions (subsection (8)).

Assessments and Examinations
Directions may be given as to the medical or psychiatric assessment or other examination of the child concerned. This can include a direction prohibiting an assessment or examination (subsection (8)). The child has the right to refuse to submit to any directed assessment or examination if of sufficient understanding to make an informed decision (subsection (7)).

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

Section 21 of the Children Act 1989 requires local authorities to make provision for the reception and accommodation of children who are removed or kept away from home under this section.

Section 46 of the Children Act provides for applications for EPOs made by the police to be treated as if made by the relevant local authority.

The duty to investigate under section 47 of the Children Act 1989 is triggered by an EPO being made in respect of a child who lives or is found in a local authority’s area.

Section 48 permits the court, when making an emergency protection order, to require information about a child to be disclosed and to authorise premises to be entered and searched.

For the offence of abducting a child in respect of whom an emergency protection order is in force, see the note to section 49 of the Children Act 1989. For the recovery of such a child, see the note to section 50.

An emergency protection order may be made even if a child is already under a care order: see section 91 of the Children Act 1989.

Regulations, which apply in both England and Wales, have been made concerning the transfer of responsibility for a child under an emergency protection order to a local authority in a case where the local authority was not the applicant for the order. These are the Emergency Protection Order (Transfer of Responsibilities) Regulations 1991 (S.I. 1991/1414), which are available at http://www.opsi.gov.uk/si/si1991/Uksi_19911414_en_1.htm.

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

Relevant court forms for applications for emergency protection orders are available at http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetFormsCat.do?court_forms_category=Children%20Act

SECTION 44A - POWER TO INCLUDE EXCLUSION REQUIREMENT IN EMERGENCY PROTECTION ORDER
This section permits the courts to exclude certain individuals from a child’s home when making an emergency protection order (EPO). The purpose is potentially to prevent the removal powers under the EPO from having to be exercised (which, as the note to section 44 explains, are exercisable if the applicant for the EPO so decides).

The Tests for Including an Exclusion Requirement
The tests for including an exclusion requirement vary according to the grounds upon which the EPO is to be made. Where any of the tests is met and the requirement is imposed, the exclusion requirement excludes the person in question from the dwelling house in which the child lives (“the child’s home”).

Significant harm cases
Under subsection (2)(a), where the EPO is to be made on the basis that there is reasonable cause to believe that the child is likely to suffer significant harm if not removed, or is likely to suffer significant harm if the child’s removal from some place is not prevented, then an exclusion requirement may be included in the EPO if:

(i) in removal cases, the child will not be likely to suffer significant harm if the person in question is excluded from the child’s home (this means, of course, that the child ought not need to be removed from his/her home); or

(ii) in prevention of removal cases, the child will not be likely to suffer significant harm if the person in question is not excluded from the child’s home (this means that there ought not to be a need to prevent the child’s removal).

Frustration of Enquiries Cases
Under subsection (2)(b), where the EPO is to be made on the basis that enquiries are being frustrated by access to the child being unreasonably refused, an exclusion requirement may be included in the EPO if the court is satisfied that the exclusion requirement will cause the enquiries to cease to be frustrated.

The willing alternative carer condition
Under subsection (2)(b), there is also an overriding requirement to be met in all cases, which is that the court is satisfied that another person living in the child’s home (whether or not a parent) can provide the child with care that it would be reasonable to expect a parent to give. This person must consent to an exclusion requirement otherwise it may not be imposed.

The Nature of an Exclusion Requirement
Under subsection (3), as well as preventing a person from entering or living in the child’s home, an exclusion requirement may also exclude him/her from a defined area in which the home is situated. If the court so orders, the exclusion requirement need not last for the full length of the EPO (subsection (4)).

Under subsection (5), a power of arrest may be attached to an exclusion requirement. If the court so orders, the power of arrest need not last for as long as the exclusion requirement (subsection (6)). A power of arrest means that a constable may arrest without a warrant a person whom s/he has reasonable grounds to believe to be in breach of the exclusion requirement (subsection (8)). Without a power of arrest, separate proceedings need to be instituted in order to obtain a warrant for arrest for non-compliance.

Under subsection (9), certain provisions of the Family Law Act 1996 apply where a person is arrested in the exercise of a power of arrest conferred by an exclusion requirement. For example, the person may be remanded in custody. The full list of provisions applied is: s.47(7), s.47(11), s.47(12), s.48 and Schedule 5: see the note to the Family Law Act 1996 for further details.

Consequences of Local Authority Removal of Child
Subsection (10) deals with the situation where a local authority removes a child from his/her home while an exclusion requirement is in force. If the child is removed to other accommodation for a continuous period of more than 24 hours, the exclusion requirement falls away.

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

SECTION 44B - UNDERTAKINGS RELATED TO EMERGENCY PROTECTION ORDERS
Where a court would have had the power to impose an exclusion requirement under section 44A, it may instead accept an undertaking from the person concerned.

These undertakings cannot have a power of arrest attached to them (subsection (2)). Instead, they are to be enforced as if they were orders of the court (subsection (3)(a)).

As with exclusion requirements, an exclusion undertaking ceases to apply where a local authority concerned removes the child from his/her home for a continuous period of more than 24 hours (subsection (3)(b)).

SECTION 45 - DURATION OF EMERGENCY PROTECTION ORDERS AND OTHER SUPPLEMENTAL PROVISIONS
This section ensures that an Emergency Protection Order (EPO) has effect for a strictly limited period. The practical effect is that local authorities must rapidly decide whether they are to seek a care order and, if so, they must quickly prepare their case for an interim care order.

The Duration of an Emergency Protection Order
The general rule under subsection (1) is that an EPO cannot have effect for a period exceeding eight days. The court must specify the actual period that the order is to have effect for (which may be less than eight days).

Subsection (2) provides that the court may specify a longer period where the EPO would otherwise cease to have effect on a public holiday. Subsection (3) provides that, where an EPO is applied for while a child is in police protection (a section 46 (7) application), the eight-day maximum period for any resultant EPO begins with the first day that the child was taken into police protection.

Extensions of Time
An EPO may be extended on a single occasion (subsection (6)). The person with parental responsibility for the child is entitled to apply for an extension if he is also entitled to apply for a care order (in practice, this restricts extension applications to local authorities): subsection (4). The application for extension must be made while the EPO is in force.

The test for the court to apply on an extension application is whether it has reasonable cause to believe that, without an extension, the child is likely to suffer significant harm (subsection (5)). The maximum period of extension is seven days.

Discharging an EPO
The child concerned, parents, persons with parental responsibility and persons with whom the child was living immediately before the EPO may apply for the EPO to be discharged (subsection (8)). There are certain restrictions, however:

(i) a discharge application cannot be made by a person who had notice of the hearing at which the EPO was imposed and who was present at the hearing (subsection (11)). So a parent who was not present at the hearing (which is usually the case) can apply for the discharge of an EPO;

(ii) an application may not be made to discharge an EPO that has been extended (subsection (11)).

There used to be a bar on a court hearing an application for discharge during the first 72 hours of the life of an EPO. However, this was removed on 6 April 2009, because of human rights concerns, when an amendment made to this section by section 30 of the Children and Young Persons Act 2008 came into force. Now, a court may hear an application for discharge during the first 72 hours of the life of an EPO.

Exclusion Requirements Attached to Emergency Protection Orders
Where a person cannot apply for an emergency protection order to be discharged, but is subject to an exclusion requirement contained in the order, s/he may apply to the court for it to be varied or discharged in so far as it imposes the exclusion requirement (subsection (8A)). Such a person may also apply for the interim care order to be varied or discharged in so far as it confers a power of arrest attached to an exclusion requirement.

Restriction on Appeals
In order, no doubt, to prevent satellite litigation impeding the process of child protection planning, subsection (10) prevents appeals from being brought against various court decisions concerned with emergency protection orders.

Exercise of Powers Under an Emergency Protection Order: Medical Assistance
Subsection (12) provides that the applicant who has been granted an emergency protection order may, in exercising powers under the order, be accompanied by a registered medical practitioner, nurse or midwife, if the court so directs.

Evidence
Subsection (7) ensures that the strict rules of evidence do not apply on applications for EPOs, or extension applications. Instead, the test is whether a statement in a report, or evidence given in court, is “relevant”.

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

SECTION 46 - REMOVAL AND ACCOMMODATION OF CHILDREN BY POLICE IN CASES OF EMERGENCY
This section permits a police constable to act where s/he believes that is necessary in order to prevent a child from suffering significant harm. Where powers under this section are exercised, the child in question is referred to for the purposes of this Act as “having been taken into police protection”.

The Powers Available Under this Section
This section does not merely permit a child’s removal. It also permits a constable to prevent a child’s removal. Subsection (1) provides that “where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm”, the constable has the power to do either of the following:

(a) remove the child to suitable accommodation and keep him there;

(b) take reasonable steps to prevent the child being removed from a hospital or other place in which s/he is accommodated.

Obligations In Respect Of A Child Who Has Been Taken Into Police Protection
A number of steps must be taken quickly after a child has been taken into police protection. The purpose of these steps is to ensure that a local authority is put in a position to be able to take over responsibility for the child concerned and that parents and the child him/herself understand what is happening.

Local Authority Notifications
As soon as reasonably practicable after taking the child into police protection, subsection (3) requires the constable concerned to do the following:

(i) inform the local authority in whose area the child was found of the steps that have been taken in respect of the child under this section and the reasons for those steps having been taken;

(ii) inform that authority of the steps that are proposed to be taken under this section in respect of the child and the reasons for those proposals;

(iii) give the authority in whose area the child is ordinarily resident details of the place at which the child is accommodated. This authority is referred to as the “appropriate authority” by this section in recognition of the fact that any subsequent court applications would normally be made by that authority.

Notifications to the Child
As soon as reasonably practicable after taking the child into police protection, subsection (3) requires the constable concerned to do the following:

(i) if the child appears capable of understanding, the constable must inform him/her of:

·the steps taken under this section and the reasons for them; and
·the further steps that may be taken under this section.

(ii) in all cases, the constable must take such steps as are reasonably practicable to discover the wishes and feelings of the child.

Police Investigation
As soon as reasonably practicable after taking the child into police protection, subsection (3) requires the constable to ensure that the child’s case is inquired into by a designated child protection officer (the “designated officer”). This designation will have been made by the chief officer of police for the area concerned.

Transfer of child to suitable accommodation
As soon as reasonably practicable after taking the child into police protection, in a case where the child has been removed from accommodation, subsection (3) requires the constable concerned to secure that the child is moved to accommodation provided by or on behalf of a local authority (or a section 51 refuge). Obviously, this duty does not apply where the child was placed in local authority accommodation forthwith upon being taken into police protection.

Under section 21 of the Children Act 1989, local authorities must receive and provide accommodation for children in police protection who were initially removed to accommodation not provided by, or on behalf of, a local authority.

Parental Notifications
As soon as reasonably practicable after taking the child into police protection, subsection (4) requires the constable concerned to inform the child’s parents of:

(i) the steps taken under this section and the reasons for them; and

(ii) the further steps that may be taken under this section.

This duty applies equally in the case of non-parents with parental responsibility, and persons with whom the child was living before being taken into police protection, as it applies in relation to parents.

Termination of Police Protection
No child may be kept in police protection for more than 72 hours. Accordingly, if a child is to continue to be kept away from home, some other order, for example an emergency protection order, must be applied for.

Additionally, a child can be released upon completion of the inquiries (by a designated child protection officer) required by subsection (3). To be more precise, upon completion the officer must release the child from police protection unless s/he believes the child would be likely to suffer significant harm if released.

Applications by Police for Emergency Protection Order
This section provides a mechanism for the police, rather than a local authority, to prolong a child’s removal from home. Subsection (7) permits the designated officer to apply for an emergency protection order in respect of a child who is in police protection. The application is treated as if made by the appropriate authority even if that authority is unaware of it or disagrees with it. The fact that the application is made on behalf of a local authority means that the conditions applicable to local authority applications for EPOs apply: see the note to section 44 of the Children Act 1989.

Powers And Responsibilities Towards Children In Police Protection
The Child’s Welfare
The police do not have parental responsibility for a child in police protection (for the meaning of parental responsibility, see the note to section 3 of the Children Act 1989). However, the designated officer is under a duty to do what is reasonable for the purpose of safeguarding or promoting the child’s welfare while s/he is in police protection.

Contact
The designated officer must allow contact between the child and the individuals listed in subsection (10). This includes parents, others with parental responsibility, persons with whom a child was living before being taken into police protection or a representative of any of those persons.

The contact duty is not, however, an absolute duty. The contact to be allowed is that which in the designated officer’s opinion is both reasonable and in the child’s interests. If the officer believes contact with a particular individual would not be reasonable and would not be in the child’s interests, there is no duty to allow that contact.

Where the child is in accommodation provided by or on behalf of the appropriate authority, the subsection (10) contact duty is converted into a duty of the appropriate authority rather than of the designated officer (subsection (11)).

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

Section 21 of the Children Act 1989 requires local authorities to make provision for the reception and accommodation of children who are removed or kept away from home under this section.

The fact that a child is in police protection triggers the local authority duty to investigate under section 47 of the Children Act 1989.

For the offence of abducting a child in police protection, see the note to section 49 of the Children Act 1989. For the recovery of such a child, see the note to section 50.

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

SECTION 47 - LOCAL AUTHORITY'S DUTY TO INVESTIGATE
The purpose of this section is to compel local authorities to investigate child welfare concerns within their areas. It should be noted that it confers a duty, and not merely a power, to investigate in certain cases.

Matters That Trigger The Duty To Investigate
Occurrence of some legal eventSubsection (1) specifies certain legal events which automatically give rise to the duty to investigate. These events of themselves mean that there is a reasonable suspicion that the child’s welfare is under threat. When a local authority is informed that any of them have taken place with respect to a child who lives or is found in the authority’s area, the duty to investigate is triggered. The events are:

(i) a child being made the subject of an emergency protection order under section 44 of the Children Act 1989 ( such as an order made on the application of the police, acting on behalf of a local authority, under section 46 or an order made on the application of another authority);

(ii) a child being in police protection;

(iii) a child contravening a curfew notice under Part I of the Crime and Disorder Act 1998. In this case the enquiries are to be commenced as soon as practicable and, in any event, within 48 hours of the authority being informed of the contravention.

Where one of these events occurs, the authority must make (or cause to be made) enquiries that it considers necessary to allow it to decide whether it should take any action to safeguard or promote the child’s welfare.

Suspected significant harm
This duty to make (or cause to be made) enquiries also arises where, in respect of a child who lives or is found in an authority’s area:

(i) the authority has reasonable cause to believe that the child is suffering significant harm; or

(ii) the authority has reasonable cause to believe that the child is likely to suffer significant harm.

For the meaning of “significant harm”, see the note to section 31 of the Children Act 1989.

Local Authority having obtained Emergency Protection Order
Subsection (2) ensures that emergency protection orders are only ever the first step in dealing with a child protection concern. As soon as a local authority has obtained an emergency protection order it shall make (or cause to be made) such enquiries as it considers necessary in order to decide what action it should take to safeguard or promote the child’s welfare.

It should be noted that the object of these enquiries is slightly different. They are to be directed towards the action that should be taken in respect of a child. The other inquiries under this section are directed towards the question of whether any action should be taken by the authority.

The Nature Of The Enquiries
Do further powers need to be exercised with respect to a child?
The underlying aim of this section is to compel authorities to address whether further action needs to be taken in order to safeguard or promote a child’s welfare. For this reason, subsection (3) specifies that enquiries under this section must in particular be directed towards establishing whether certain things should be done by a local authority in respect of a child. The enquiries must be directed towards establishing:

(i) whether the authority should make any application to the court in respect of the child under this Act - for example, an interim care order;

(ii) whether the authority should exercise any of its other powers with respect to the child under this Act- for example, the provision of services for a child in need and/or his/her family;

(iii) whether the authority should make any application to the court for a child safety order under s.11 of the Crime and Disorder Act 1998. These are orders made in respect of children aged under 10 on certain conditions, including that the child has done something which, but for his/her age, would have been a criminal offence. The effect of the order, among other things, is to place the child under the supervision of a “responsible officer” (normally a member of a youth offending team).

Children under EPOs who are not accommodated by the authority
Where the child in question is the subject of an emergency protection order but is not in accommodation provided by or on behalf of the authority, subsection (3) requires the enquiries also to be directed towards establishing whether it would be in the child’s best interests to be in such accommodation.

Children Ordinarily Resident In Another Authority’s Area
Subsection (12) deals with the situation where the duty to investigate has arisen in respect of a child who is ordinarily resident in the area of another authority ( such as a child taken into police protection while on holiday). The investigating authority must consult the other authority, and the other authority may take over the investigation.

Children in police protection
Where the child in question has been taken into police protection, subsection (3) requires the enquiries also to be directed towards establishing whether the authority should ask for an application to be made under section 46 (7) (application for emergency protection order made by police on behalf of local authority).

Access to the Child
The duty to access the child
Normally, local authorities are expected to seek access to the child concerned in the course of their enquiries. Subsection (4) requires a local authority to take such steps as are reasonably practicable either to obtain access to the child themselves or for a person acting on their behalf to obtain access to the child.

The only occasion on which the authority is relieved of this duty is where it is satisfied that it already has enough information with respect to the child.

Consequence of Access Being Impeded
If an authority (or a person acting on its behalf) is refused access to a child or is refused information about the child’s whereabouts, then, normally, it must apply for a specified order in respect of the child (subsection (6)). The orders are: an emergency protection order under section 44; a child assessment order under section 43; a care order (including a care order under section 38); or a supervision order (including an interim supervision order under section 38).

The only occasion on which the authority is relieved of this duty to apply for an order is where it is satisfied that the child’s welfare can be satisfactorily safeguarded without an order.

Assistance from Other Public Bodies
Subsections (9) and (11) provide that certain specified bodies must assist an authority with its enquiries under this section if the authority requests them to do so. The bodies are: other local authorities; local education authorities; local housing authorities and NHS bodies.

Subsection (10) qualifies the duty. The body requested to provide assistance does not have to do so if “doing so would be unreasonable in all the circumstances of the case”.

Events Following The Completion of Enquiries
Duty to take action

Subsection (8) provides that, where an authority concludes that it should take action to safeguard or promote the child’s welfare, it must take the action. This duty to take action does not, however, apply where some action is outside an authority’s powers or would not be reasonably practicable.

Reviews
Subsection (7) deals with the situation where a local authority, following the completion of enquiries, decides not to take formal child protection action (by applying for any of the following orders: an emergency protection order; a child assessment order; a care order; a supervision order). The authority must not simply close the file. Subsection (7) requires the authority to

(a) consider whether it would be appropriate to review the case at a later date; and

(b) if this is the case, determine the date on which that review is to begin.

Educational concerns
Subsection (5) provides that where, as a result of enquiries, it appears to the authority that there are matters connected with the child's education which should be investigated, the authority must consult the relevant local education authority.

Involvement of the Child In Decision Making Under This Section
Subsection (5A) was inserted into this section by the Children Act 2004 in order to ensure that children are involved in the decisions taken by local authorities under this section.

The obligation under subsection (5A) applies where a local authority are making a determination under this section as to the action to be taken with respect to a child. Local authorities must (so far as it is reasonably practicable to do so and consistent with the child’s welfare):

(a) ascertain the child's wishes and feelings regarding the action to be taken; and

(b) give due consideration (having regard to the child’s age and understanding) to such wishes and feelings of the child as they have been able to ascertain.

This duty applies equally in the case of a review under subsection (7) as it applies when an authority is deciding what action to take following the completion of inquiries.

Guidance and other relevant material
The updated (2006) version of “Working Together to Safeguard Children” (Inter-Agency working to safeguard and promote the welfare of children) for England is available at http://www.everychildmatters.gov.uk/_files/CC33F42E29C4BB89100BB0AF34A57386.pdf. Much of this is section 7 guidance and so must be followed by local authorities in the absence of a good reason not to do so.

Supplementary guidance to Working Together entitled “Safeguarding Children Involved in Prostitution” is available at http://www.dh.gov.uk/assetRoot/04/05/78/58/04057858.pdf

Supplementary guidance to Working Together entitled “Safeguarding Children in Whom Illness is Fabricated or Induced” is available at http://www.library.nhs.uk/childhealth/ViewResource.aspx?resID=31295

The current Wales version of Working Together (2000) is available from http://www.childrenfirst.wales.gov.uk/content/key_pub.htm

The National Assembly for Wales’ guidance on complex child abuse investigations is available at http://www.childrenfirst.wales.gov.uk/fe/news/news_details.asp?NewsID=84

The England guidance on complex child abuse investigations is available at http://police.homeoffice.gov.uk/news-and-publications/publication/operational-policing/child_abuse_guidance.pdf

The Department of Health guidance for practitioners working with children entitled “What to do if you’re worried a child is being abused” is available at http://www.dh.gov.uk/assetRoot/04/06/13/03/04061303.pdf

The Department of Health has written to local authorities to remind them of their responsibilities when handling cases of alleged sexual abuse of children (LASSL (2004) 21). The letter is available at http://www.dh.gov.uk/assetRoot/04/08/99/68/04089968.pdf.

The equivalent letter for Wales is available from http://new.wales.gov.uk/topics/childrenyoungpeople/publications/circulars/handellingallegations?lang=en

The Department of Health has written to local authorities to request that they better signpost their child protection services (LASSL (2004) 7). The letter is available at http://www.dh.gov.uk/assetRoot/04/08/60/13/04086013.pdf.

The Department of Health guidance “Children Missing from Care and Home” is available at http://www.dh.gov.uk/assetRoot/04/01/27/18/04012718.pdf. This is section 7 or policy guidance and so it must be followed by local authorities unless they have a good reason not to do so.

The protocol between the Crown Prosecution Service and local authorities as respects the exchange of information in the investigation and prosecution of child abuse cases is available at http://www.cps.gov.uk/publications/agencies/protocolletter.html

SECTION 48 - POWERS TO ASSIST IN DISCOVERY OF CHILDREN WHO MAY BE IN NEED OF EMERGENCY PROTECTION
This section equips the court, and permits the court to equip others, with a range of powers designed to ensure that children who may be in need of emergency protection can be accessed. These powers are available in connection with emergency protection orders made under section 44 of the Children Act 1989.

Requirement to disclose information about the child’s whereabouts
Sub-section (1) addresses cases where someone other than the applicant for an emergency protection order has information about the child’s whereabouts. In these cases, the court making an emergency protection order may include a provision in that order which requires a person, if requested by the applicant for the order, to disclose to the applicant any information s/he has about the child’s whereabouts.

Sub-section (2) deals with protection from self-incrimination. A person required to provide information may not refuse to do so on the ground that that would incriminate him/her (or a spouse or civil partner) in the commission of a criminal offence. However, a statement made in response to a request under sub-section (1) cannot be used in evidence in proceedings for any offence, other than perjury (that is, if the person provided false information in response to a request under sub-section (1)).

Entry and Search of Premises
Searching for the child concerned
Under subsection (3), an emergency protection order may authorise the applicant to enter premises and search for the child concerned.

Searching for other children
Subsection (3) above deals with the situation where it is reasonably clear that a child is at risk on particular premises. Subsection (4), however, is concerned with cases where it is suspected that another child (or children) are at risk on those premises so that they could also be the subject of an emergency protection order. Subsection (4) allows the court, when giving an authorisation under subsection (3), also to authorise the applicant to search for that other child (or children).

If the suspicion crystallises and such a child is found, subsection (5) authorises the applicant to treat the child as if he were the subject of an emergency protection order (and, for example, to remove the child). In other words, the applicant is not required to go back to court and obtain another order in order to remove the child. The condition that must be met here is that the applicant must be satisfied that the grounds for making an emergency protection order exist with respect to the child.

Obstructing searches
It is an offence for any person to obstruct someone exercising a power of entry and search under subsection (3) or (4): subsection (7). The maximum penalty upon conviction is a fine of £1,000: subsection (8).

Police assistance

Subsections (9) to (12) provide a mechanism whereby applicants can draw upon the assistance of the police in cases where reasonable force needs to be used in order to enter premises and search for a child there.

Subsection (9) permits a court to issue a warrant which authorises a constable to use reasonable force to assist a person in exercising powers under an emergency protection order. Warrants may either be reactive or anticipatory: they may be issued either in response to a refusal to grant access to premises, or a child, in order for an emergency protection order to be implemented, or they may be issued in cases where it is thought likely that a person will be prevented from exercising powers under an emergency protection order.

Warrants are to be addressed to, and executed by, a constable. The normal position is that the constable must be accompanied by the person who applied for the warrant if that person so desires. However, the court may direct that the applicant is not to accompany the constable: subsection (10).

The court also has the power to direct that the constable be accompanied by a particular type of medical professional, such as a registered medical practitioner or registered nurse: subsection (11).

General requirement to name the child concerned

Subsection (13) provides the general rule that an order under subsection (4) and a warrant must name the child concerned. If the child is not named, s/he shall instead be described as clearly as possible.

Other relevant legislation

The child welfare “paramountcy principle” applies where, in proceedings under this section, the court determines any question with respect to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

Section 21 of the Children Act 1989 requires local authorities to make provision for the reception and accommodation of children who are removed or kept away from home under this section.

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

Guidance and other relevant material

Relevant court forms for applications under this section are available at http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetFormsCat.do?court_forms_category=Children%20Act

SECTION 49 - ABDUCTION OF CHILDREN IN CARE ETC

This section aims to prevent disruption of arrangements made under care orders or emergency protection orders or in respect of children who are in police protection. This section should be read in conjunction with section 50 which deals with the recovery of such children.

Subsection (1) prohibits a range of acts that would otherwise undermine the purpose of the order or the police protection. An offence is committed if any of the following acts is done knowingly and without lawful authority or reasonable excuse:

(i) taking a child away from the person who has care of him/her under the order or police protection (this person is referred to as the “responsible person” in this section);

(ii) keeping a child away from the responsible person;

(iii) inducing, inciting or assisting a child to run away from the responsible person;

(iv) inducing, inciting or assisting a child to stay away from the responsible person.

The maximum penalty for commission of an offence under this section is six months imprisonment (subsection (3)).

SECTION 50 - RECOVERY OF ABDUCTED CHILDREN ETC

This section provides a mechanism for the recovery of children in (for example) care who have been taken away from local authority accommodation.

The making of recovery orders

Section 50 provides for the making of recovery orders in respect of children who are under care orders or emergency protection orders or who are in police protection.

The court may make a recovery order where it appears to it that there is “reason to believe” that any of the following circumstances exist:

(i) the child has been unlawfully taken away from the person who has care of him/her under the order or the police protection (this person is referred to as the “responsible person” in this section);

(ii) the child has been unlawfully kept away from the responsible person;

(iii) the child has run away from the responsible person;

(iv) the child is staying away from the responsible person;

(v) the child is missing.

The effect of recovery orders

Recovery orders equip the “authorised person” ( such as a person specified by the court) and others with a range of powers designed to enable them to recover the child concerned. Under subsection (3), the powers are as follows:

(i) the authorised person has the power to request any person with the power to do so to produce the child. Such a request is treated as a direction embodied in the order;

(ii) the authorised person has the power to remove the child;

(iii) a constable or officer of the court has the power to ask any person to disclose to him/her any information as to the child’s whereabouts. The person is required by virtue of the order to disclose that information;

(iv) a constable has the power to enter any premises specified in the order and search for the child, using reasonable force if necessary.

Scotland and Northern Ireland

Subsections (13) and (14) provide for recovery orders to have effect in Scotland and Northern Ireland.

Other relevant legislation

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

Guidance and other relevant material

Relevant court forms for applications for recovery orders are available at http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetFormsCat.do?court_forms_category=Children%20Act