Northern Ireland Assembly Flax Flower Logo

CHILDREN (EMERGENCY PROTECTION ORDERS) BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

  1. This Explanatory and Financial Memorandum has been prepared by the Department of Health, Social Services and Public Safety ("the Department") in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.

  2. The Memorandum needs to be read in conjunction with the Bill. It does not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require an explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

  1. The effect of an Emergency Protection Order ("EPO") is to give parental responsibility to the applicant (usually a Health and Social Care Trust) in addition to the parents. The Order may direct that the child be removed or kept where he is, and the court may give directions about medical examinations or assessment and contact.

  1. An EPO may only last up to a maximum of 8 days but can be extended for up to a maximum of 7 further days. It cannot be extended beyond that. Once an EPO is made there are provisions to deal with its discharge. Currently an application to discharge can be made as soon as the EPO is made but, under Article 64 (8) of the Children (Northern Ireland) Order 1995, the application cannot be heard until the expiry of the 72 hours from the making of the Order.

  1. On a recent judicial review, the High Court has determined that Article 64(8) is incompatible with Articles 6 and 8 of the European Convention of Human Rights ("ECHR") pursuant to Section 3 of the Human Rights Act 1998.

  1. On considering that decision, the Minister for Health, Social Services and Public Safety has decided to introduce legislation to remove the incompatibility. This Bill repeals Article 64(8) which means that in future an application to discharge an EPO can be heard at any time after it is made.

CONSULTATION

  1. The repeal of Article 64(8) was not publicly consulted upon as there was no alternative to the repeal due to its incompatibility with ECHR. Officials did, however, consult with professional colleagues in the Office of Social Services, Department of Health, Social Services and Public Safety. The conclusion was that the repeal could be effected without detriment to the safety of children as it would have minimal impact due to the low numbers of EPOs involved. The police and social services have other powers available to them to act should an EPO be discharged and they continue to have concerns about the safety of a child.

OPTIONS CONSIDERED

  1. As Article 64(8) has been held to be incompatible with the ECHR, the only appropriate option is to repeal it in the shortest time possible.

OVERVIEW

  1. The Bill contains two clauses.

COMMENTARY ON CLAUSES

Clause 1 removes the restriction which prevents an application for the discharge of an Emergency Protection Order being heard by a court within 72 hours of the making of the Order.

Clause 2 sets out the short title of the Bill and provides for it to come into operation as soon as Royal Assent is obtained.

FINANCIAL EFFECTS OF THE BILL

  1. There should be minimal financial effects of the Bill. Last year only 13 applications for EPOs were granted. It is considered unlikely in most cases for parents to be able to mount a legal case within the short timeframe of 72 hours.

HUMAN RIGHTS ISSUES

  1. The sole purpose of the Bill is to remove a provision which the High Court has held to be incompatible with ECHR.

EQUALITY IMPACT ASSESSMENT

  1. In line with the commitments of its equality scheme, the Department has conducted a Preliminary Equality Impact Assessment (PEQIA) on the proposals. The PEQIA did not identify any potential for adverse impact on any of the nine equality categories.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

  1. The Regulatory Impact Assessment did not produce any evidence that repealing the offending provisions would incur additional costs on employers or those in the voluntary or community sectors. No market has been identified where the enactment of the Bill would have an adverse impact on competition.

LEGISLATIVE COMPETENCE

  1. The Minister for Health, Social Services and Public Safety has made the following statement under section 9 of the Northern Ireland Act 1998:

"In my view the Children (Emergency Protection Orders) Bill would be within the legislative competence of the Northern Ireland Assembly."