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JUDITH MASSON, Professor of Socio-legal Studies, University of Bristol
The powers available to take emergency action to remove or detain children have long been both essential tools for child protection and viewed with suspicion because they can be used to by-pass (albeit temporarily) the safeguards which protect parents and children against state intervention. Prior to the Children Act 1989, place of safety orders were used routinely in some areas to initiate care proceedings (Select Committee Report Children in Care (1982-1983)). The widescale granting of orders to allow the detention or removal of children who were thought to have been sexually abused was one of the most alarming features of the Cleveland scandal (Butler-Sloss, 1988 Cm 412) because it appeared that the requirement for a magistrate's decision had not provided any sort of check. In this context it was unsurprising that the powers for emergency intervention were one of the most contentious parts of the 1989 Act.
The Children Act 1989 completely recast emergency powers replacing the Place of Safety Order with the Emergency Protection Order (EPO) which was limited to 8 days with a power to extend it once, for a maximum of 7 days. The order could be sought by anyone who could satisfy a magistrate that there was reasonable cause to believe that a child was suffering or likely to suffer significant harm (s 44(1)(a)). A further ground exists for local authorities and NSPCC officers undertaking child protection inquiries. Where they had reasonable cause to believe that access to the child was required as a matter of urgency and enquiries were being frustrated by unreasonable refusal of access to a child, an order could be granted (s 44(1)(b)(c)). Police officers had a separate power (s 46) which has its roots in the police inspector's power to detain a child in a place of safety. Any constable who had reasonable cause to believe a child was suffering or likely to suffer significant harm could remove and/or detain a child for up to 72 hours. This power was not subject to any judicial control and was available so that any officer could intervene to protect a child. For example, the power could be used to allow an officer to ensure a child was looked after if he or she was found after being lost, abducted or running away, or where parents were arrested, injured in a road accident or too intoxicated to provide care.
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