Zenith Family Current Awareness

Can the court refuse to hear an application for an ICO after an unsuccessful application for an Emergency Protection Order?

10 February 2017

Nathaniel Garner

The recent case of Re B-C (A Child) [2016] EWCA Civ 970 concerned a Local Authority’s application for a care order with interim order and within that an application for an emergency protection order.

The judge refused the Local Authority’s application for an emergency protection order and at the case management hearing which followed 6 days thereafter refused to list the matter for a 2 day contested interim care order application. This was on the basis that the test for removal under an interim care order was very similar and evidence which had come to light since the previous hearing did not add too much to what was before the court on that occasion.

The Local Authority appealed this decision and the appeal was heard by McFarlane LJ and King LJ. They focused on the relevant procedure and law and did not go into the merits of the judge’s appraisal of the evidence.

In this regard, the Children Act 1989 s.45 (10) provides that no appeal lies from the making of, or in this case the refusal to make, an emergency protection order. 

By refusing to hear the application for an interim care order the Local Authority was left with no remedy to challenge the judge’s determination that:

  1. there was sufficient evidence to satisfy the interim threshold criteria; and
  2. whether that evidence is sufficient to establish an imminent risk of serious harm to the child.

This was a procedural error.

King LJ added:

"Parents are protected, rightly, by the very high test that is applied by judges before a child is removed following the making of either an emergency protection order or an interim care order. Equally, however, where a Local Authority has a real concern that a judge may have fallen into error in failing to grant a protective order following a child having been injured, it is in my judgment imperative that that Local Authority, to meet its statutory duties, is able to bring the matter before this court or another court by way of appeal in order to allow the failure to grant a protective order to be reviewed."

Accordingly, the appeal was allowed and the matter remitted.


10th February 2017

Current Awareness

By the Family team