Legal case notes- Emergency care orders_827

ghdhair100 · Wysłany: Śro 6:13, 16 Mar 2011

Legal case notes: Emergency care orders
An Emergency Protection Order (EPO) authorises a local authority to remove a child to accommodation provided by the local authority and keep him there. The court may make an EPO only if it is satisfied that there is reasonable cause to believe that a child is likely to suffer significant harm if he is not removed immediately to accommodation provided by it.In X Council v B and others emergency protection orders) [2007] 1 FCR 512, Munby J did not pull any punches in telling a local authority what its duties and responsibilities were in applying for an EPO. He made 14 specific points:1) 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 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. 2) Both the local authority which seeks, and the court which makes, an EPO assume a heavy burden of responsibility. It is important that both approach every application with an anxious awareness of the extreme gravity of the relief being sought,[link widoczny dla zalogowanych], and a scrupulous regard for the rights of both the child and the parents.3) Any order must provide for the least interventionist solution consistent with the preservation of the child’s immediate safety.4) 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 Child Assessment Order.5) An EPO should not be made for any longer than is absolutely necessary to protect the child. When it is made on an ex parte (without notice) application, very careful consideration should be given to the need to ensure that it is made for the shortest possible period commensurate with the preservation of the child’s immediate safety.6) The evidence in support of an 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.7) 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 on. Cool

Where the application 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 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.9) The evidential burden on the local authority is heavy when 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. 10) The court can hear oral evidence. However, 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. It is therefore particularly important that the court comply meticulously with the rules,[link widoczny dla zalogowanych], which require it to keep a note of the substance of the oral evidence, and also record its reasons in writing.11) In any event, the court must immediately 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 proper information as to what happened at the hearing, and exactly what documents were lodged with the court either before or during the hearing. 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 documents read by the court or for information about what took place at the hearing. 12) 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. It must apply its mind very carefully to whether removal is essential in order to secure the child’s immediate safety. The mere fact that it has obtained an EPO is not of itself enough. It is the court which decides whether to make an EPO, but it is the local authority which decides whether to remove the child. The local authority, even after it has obtained an EPO, is under an obligation to consider less drastic alternatives to emergency removal. 13) The Children Act 1989 Act imposes on the local authority a mandatory obligation to return a child,[link widoczny dla zalogowanych], whom it has removed, to the parent from whom they were removed, if it appears 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 aspects, the local authority is under a duty to exercise exceptional diligence.14) The local authority, subject only to any direction given by the court, must allow the 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. Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children. The cases presented here aim to help the reader understand better the nature of and the types of decision-making within the court system
The Court of Appeal pointed out that R and F's submission in the county court was of overt, conscious racism, and it was not prepared to find that there had been unconscious discrimination.The decisionThe Court of Appeal said that, unlike the ordinary civil claim where the judge decides, on the claimant's evidence only, whether the claimant has made out a case, in this case the judge had had the benefit of the whole of the evidence. Despite the school's failure to comply with the statutory requirements, the judge had been entitled to find on the basis of all the evidence that R and F had not proved racial discrimination.

“限塑令”背后的“限塑怪圈”？_1441