What is Emergency Residence Order?
An Emergency Residence Order is an order which is intended to protect the child from any kind of harm including physical, mental or emotional. This order protects the interest of the child and safeguards from any significant harm which already arose or is likely to arise. The order is made under section 8 of the Children Act, 1989.
When is Emergency Residence Order?
An emergency protection order is used in exceptionally serious situations. It gives:
Limited parental responsibility for the child to whoever the court grants an order for
In such a case the parental responsibility is limited to ensure the child’s welfare, including the right to remove the child (or prevent their removal) from a pre-defined location.
Emergency Residence Order is granted in which cases?
Although there are no set circumstances or guidelines on the fulfilment of which the order will be granted by the court, however, the child should have suffered or is likely to suffer from substantial harm. The order is granted in cases of child abuse which includes:
Physical harm
Emotional or psychological harm
illegal substance abuse
illness of parent or person with whom the child is residing being harmful to the child
Who is required to apply for an Emergency Residence Order?
Believe it or not, legally speaking anyone can apply for an Emergency Order. Remember applying is different from getting the order. Generally, almost all applications are made by the local authority but the police or the NSPCC could also apply.
A person who becomes aware that the child is being subject to any kind of physical, mental or emotional harm may apply for an Emergency Residence Order. Hence, it is not only parents or relatives who have the right to apply for an Emergency Residence Order, but any person who has witnessed or suspects that the welfare of the child is in danger, such person can also apply for the order. The court, however, would determine whether such a person is worthy to apply for the order and with whom the child should reside.
How to apply for Emergency Residence Order?
The Applicant shall file the application through Form C100 in the family court which includes the evidence favouring the Applicant and protection of the child. The form shall be properly signed and shall have the required number of copies.
The Applicant may also file a Position Statement to assist the judge by explaining the facts in brief and grounds for claiming the removal of the child from the premises in the interest of the child. The Position Statement should not belong and should be of only three to four pages. A Position Statement is however not essential.
Where should the application for Emergency Residence Order be made?
The application for Emergency Residence Order shall be made to the court where either the parents reside or where the child was last seen. The application shall be made in the family court which holds the jurisdiction of such place. In cases where the child has travelled to another country or state, the court of such country or state can also deliver the Emergency Residence Order in favour of the child.
What say does a child have in the Emergency Residence Order?
The court takes the decision by considering the interest of the child and it may also ask questions from the child to get familiar of his wishes and feelings. Usually, the court would not hold the opinion of a child below the age of 11 years strong enough as he can easily be manipulated and pressured. The child below 11 years of age is not considered competent enough to understand the situation and the opinion of the child moderately impact the decision of the court. However, such age restriction is not specific and depends from child to child and case to case. In certain circumstances, the child also has to the right to file for discharge (stop) of the order under the guidance of adults.
What to do if the Emergency Residence Order application is filed against you?
If the application for Emergency Residence Order is made against any parent, they have to attend the proceedings as scheduled and may also be asked to make a written and verbal report containing the defences against the allegations made by the Applicant which should be focused on the interest of the child. A protection plan for the child may also be required to be submitted to the court.
Can the local authority be granted Emergency Residence Order?
Emergency Residence Order, also known as Emergency Protection Order when the local authority applies for the Residence Order, can be granted to the local authority in certain cases where the presence or access of the child is a matter of urgency. The urgency could be for inquiry of the child or for any other purpose.
However, if the parents of the child were not served notice of such application, they have a right to discharge (stop) the Emergency Protection Order and make the order inapplicable.
Is it necessary for the local authority to serve notice to the parents?
The local authority shall serve notice of the application to the parents. However, they may not serve notice in cases where there is an immediate threat to the life of the child, risk of parents running away with the child, etc. In circumstances where the notice was not served, the parents shall be sent a copy of the application and order within 48 hours from grant of the order.
On what grounds can the local authority apply for Emergency Protection Order?
Under section 44 of the Children Act, 1989, the local authority has a right to apply for Emergency Protection Order in the family court in cases where:
The court is satisfied that if the child is not provided accommodation of the Applicant, the child is likely to suffer significant harm; or
Enquiries under section 47 of the Children Act, 1989 is frustrated and the local authority is unable to access the child.
The local authority can apply for Emergency Protection Order on the following grounds:
· The child is suffering or may suffer from mental, physical or emotional harm; and
· The authority is unable to access the child for the purpose of enquiry; and
· It is a matter of urgency.
What happens after the Emergency Protection Order is made?
Once the Emergency Protection Order is granted by the Court, the court grants the warrant to the police officials along with social workers, if necessary, to search for the premises where the child is believed to be residing. If it is believed that more than one child is residing in the same premises, the Order in favour of other children may also be granted by the court. Once the child or children are found and the social workers believe that the requirement of Emergency Protection Order is met, the child would be removed immediately from the premises. Individuals who obstruct or prevents the police from searching and removing the child form the premises is a criminal offence and hence could be penalised accordingly.
What happens after the child is removed from the premises?
If on the basis of Emergency Protection Order the child is removed from the premises, the court shall have the power to decide whether the parents or any other person would be allowed to contract the child and would give clear instructions for the same. The local authority also has the right to allow reasonable contact of parents with the child who is subject to Emergency Protection Order under Section 44(13) of Children Act, 1989.
The court also determines whether the child should go through a medical or any other kind of assessment to ascertain the current situation of the child and whether any aid is to be given to the child.
The Applicant can also apply for Child Arrangement Order and the court will decide when and where the child could stay and how much time each parent could spend with the child. This order also takes into consideration the overall development of the child. This order is also made for the benefit and best interest of the child.
For how long the Emergency Residence Order lasts?
The Emergency Residence Order is applicable only up to the second hearing of the case where the parents or individuals against whom the application has been filed presents his case in the court along with the evidence of his innocence. Upon hearing the side of the defense, the court will give its final decision which would be either to continue the Emergency Residence Order or cancel it.
In cases of Emergency Protection Order, the maximum period for which the local authority can have the custody of the child is one week which can be extended by the court up to 7 days.
Whether an appeal can be filed against the Emergency Residence Order?
No appeal can be filed against the Emergency Residence Order of the Court. Only in case where notice was not served to parents in case of Emergency Protection Order, an application for discharge (stop) of the order can be made by:
Child
Parent/guardian
Anyone with whom the child was residing immediately before the order was made.
What are the factors based on which the court grants the Emergency Residence Order?
The Emergency Residence Order is granted by the court upon considering all the possible nuances of the case and holds the best interest of the child as a prime objective. The court takes into account whether the applicant is worthy enough to make such application. The court considers the evidences and representations made by the applicant showcasing the history or events when the child was subjected to abuse and whether making an Emergency Residence Order would be beneficial or detrimental to the child. Judge also considers Section 1 of the Children Act, 1989 in which factors to be examined before giving Section 8 orders are mentioned, some of which are wishes of the child, age, sex, physical need, emotional need, harm suffered, etc.
What happens if the non-resident does not return the child after the Emergency Residence Order is granted?
Where the non-resident does not return the child after the Emergency Residence Order is granted or had run away from the country, in such cases, not much can be done. Only police assistance can be availed by the Applicant and attempts can be made to bring the child back in the country/jurisdiction of the court and take the child once the non-resident returns.
What kind of other order can you apply for?
In case medical treatment is required to be given to the child and the parent having the possession of the child is unable or not willing to give him the same, then an application for Specific Issue Order can be made. If a person has disappeared with the child then in such cases Seek and Find Order can be sought.
Please note that this article is NOT legal advice and should not be taken as legal advice.