Re X (Emergency Protection Orders) EWHC 510 (Fam)
The judge found significant flaws in the overall care proceedings, specifically the local authority’s actions in obtaining an Emergency Protection Order (EPO). A good practice guidance in relation to EPO’s is incorporated into the judgment together with guidance on cases of induced illness and how to deal with confidential information at case conferences.
Re X (Emergency Protection Orders) EWHC 510 (Fam)
Family Division: McFarlane J (16 March 2006)
The judge found significant flaws in the overall care proceedings, specifically the local authority's actions in obtaining an Emergency Protection Order (EPO). A good practice guidance in relation to EPO's is incorporated into the judgment together with guidance on cases of induced illness and how to deal with confidential information at case conferences.
This case concerned care proceedings in relation to X, a 9 year old child. Previously, the local authority had held two Child Protection Case Conferences where professional concern for X was such that only a low level of intervention was proposed. On 23 November 2004 a further case conference took place to review the progress of the work undertaken and to consider whether care proceedings should be issued. At the conclusion of the meeting, there was no suggestion that the child should be removed, either immediately or at all. However, after the conference the social worker received information that the mother was at a local hospital requesting that X be seen by a doctor, despite the triage nurse concluding there was no cause for concern. Within two hours of the case conference concluding the social work team leader was giving evidence before lay magistrates in support of an application for an EPO. This application was made without notice to the parents and was granted by the justices. The central plank of the social services' case was that this was a case of fabricated or induced illness. The child was removed from the mother's care and remained in foster care for the following 14 months under a series of interim care orders. At no stage in the proceedings did the local authority acquire medical evidence to support the allegations of induced or fabricated illness and one year after X was taken into care the local authority abandoned its reliance upon this allegation to support care proceedings, the case preceded on the basis of emotional abuse solely.
The judge endorsed the view of mother's counsel that the local authorities actions in obtaining an EPO based on the social worker's uninformed opinion that this was a case of fabricated illness was 'outrageous' and 'inexcusable'. The judge found multiple failings on the part of the local authority in its involvement in this family. These failings are categorised in the judgement as follows:
Recording confidential material given to a Case Conference
The following guidance was given to assist where information is given to a case conference which needs to be kept confidential from the parents:
a) If the circumstances are sufficient to justify the exclusion of the parents a full minute should nevertheless be taken of everything that is said during the conference;
b) The confidential part of the minutes should be approved by the professionals but kept separate from the main minutes;
c) The non-confidential minutes should record that confidential information was disclosed;
d) The need for continued confidentiality should be kept under review by the conference chair.
Fabricated or induced illness allegations
The judge highlighted that this is not a diagnosis that can be made by a social worker, and requires a skilled medical appraisal.
Emergency Protection Orders
The judge found multiple failings in the trial process of obtaining the EPO. The current law and practice in relation to EPO's was reiterated and the judge produced a 'good practice guidance' drawing together all the concerns raised by this case:
a) A copy of Munby J's judgment in X Council v B should be made available at every EPO application;
b) It is the duty of the Applicant to ensure X Council v B is available;
c) Mere lack of information or need for assessment can never establish genuine emergency for EPO. Proper course is an application for Child Assessment Order or issuing section 31 proceedings with direction under section 38(6);
d) Evidence should come from best source, usually social worker with direct knowledge of case;
e) Case conference minutes should be produced to the court;
f) Where application is without notice the Applicant should be represented by a lawyer who has responsibility for ensuring the magistrates understand legal criteria for making the order without notice;
g) Applicant ensure a full note is taken;
h) Every without notice hearing should be tape-recorded or recorded in full;
i) At the first 'on-notice' hearing the court should provide the parents with the EPO notes, any material submitted to the court and a copy of 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 child, will rarely warrant an EPO;
l) Cases of fabricated illness, where there is no medical evidence of immediate risk will rarely warrant an EPO;
m) Justices faced with EPO application in a case of emotional abuse, non-specific sexual abuse allegations and/or fabricated illness should consider refusing on the basis that the local authority should then issue ICO. It is then likely that the justices will transfer the case up to a county court / High Court;
n) The justices must give detailed findings and reasons;
o) The court should first determine whether or not the hearing should proceed on a without notice basis before the substantive EPO application.
Read the full text of the judgment here