Walsall Metropolitan Borough Council (15 013 555)

Category : Children's care services > Adoption

Decision : Not upheld

Decision date : 12 Feb 2016

The Ombudsman's final decision:

Summary: Mr X complains that the Council failed to respond properly to his complaint about his adoption. The Ombudsman would be unable to conduct a robust investigation into matters which took place over 20 years ago or establish a link between the allegations and the injustice Mr X claims. I have discontinued the investigation of this complaint.

The complaint

  1. A representative complains on behalf of Mr X about the way the Council responded when Mr X complained that the Council incorrectly applied for an adoption order and then failed to take due care of him subsequently.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. She provides a free service, but must use public money carefully. She may decide not to start or continue with an investigation if she believes she cannot achieve the outcome somebody wants (Local Government Act 1974, section 24A(6))
  2. The Ombudsman cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3)

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How I considered this complaint

  1. I considered the information provided by Mr X’s representative and by the Council, which includes the complaint to the Council and its response. Both Mr X (and his representative) and the Council had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

  1. Mr X was adopted at the age of eleven months. The records which Mr X provided show that he was previously settled in a foster placement from the age of two months. They show that he was taken from his foster carers in distressing circumstances.
  2. Mr X says the Council should not have then gone ahead with the adoption order when it was clear that his adoptive parents wanted to adopt a daughter. He says he discovered recently that his Guardian ad litem (GAL) at the time had reservations about the way the adoption took place.
  3. Mr X had a troubled childhood and returned into care during his teenage years. He subsequently spent some time in the criminal justice system and was also then homeless. He has suffered from poor mental health and says he lacks confidence as a result of the problems he had in his adoptive placement and afterwards in care.

Relevant administrative background

  1. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 say that a complaint must be made not later than 12 months after the date on which the matter which is the subject of the complaint occurred, or if later, the date on which the matter which is the subject of the complaint came to the notice of the complainant.
  2. The Regulations also say the time limit does not apply if the responsible body is satisfied that the complainant had good reasons for not making the complaint within that time limit and notwithstanding the delay, it is still possible to investigate the complaint effectively and fairly.

The complaint

  1. In 2014 Mr X accessed his birth records. He complained (through his representative) to the Council about the way it had gone ahead with his adoption order and said that he had suffered abuse by his adoptive parents. He pointed out the objections that his GAL had made, including an allegation that the Council had not properly assessed his adoptive parents. He asked for compensation from the Council to enable him to rebuild his life.
  2. The Council responded to the complaint. It said his foster carers had been temporary carers and he could not have stayed with them. It acknowledged that due process had not always been followed at the time of his adoption: however, it pointed out that the GAL had “clearly stated” that in the end this had not had a negative impact on Mr X and the GAL said he thought the adoption placement was the right decision. It added that the GAL would not have supported the adoption order at the time if he had substantive doubts. It also added that some practices and procedures had changed since the time of Mr X’s adoption. (Mr X says in fact the Council wrote to his GAL acknowledging there had been errors in the way the assessment of his adoptive parents had been undertaken and saying the allocated social worker had been suspended.)
  3. The Council expressed sympathy that the placement had been unsuccessful but said it could not attribute Mr X’s later problems to the failure of the placement.
  4. 18 months after he first complained and received the Council’s response, Mr X asked the Council to consider his complaint further. He said the Council had provided insufficient evidence to prove its actions had not had a negative effect on his life.
  5. The Council replied that it would not investigate further. It said under the complaints legislation it was not expected to process complaints over twelve months old unless there was good reason. It said in any event, no-one would now be able to prove that what had happened to Mr X at eleven months old, over 20 years previously, was related to the difficulties he now experienced. Mr X’s representative says Mr X was unable to complain again to the Council within twelve months because he did not have the support to do so then. Mr X’s letter to the Council at the time does not refer to the reason for the late submission.
  6. Mr X remained unhappy and his representative complained to the Ombudsman on his behalf. He said the records showed Mr X had been traumatised by the events on the day he was left with his adoptive parents and he was still acting out that day several years later. He said the Council had admitted it had been at fault in some processes. He said as a result of what had happened to Mr X, he now lacked confidence, was unable to fund himself through a course to lead to the employment he wanted, and suffered from post traumatic stress disorder. Mr X says even an apology and a token payment from the Council would enable him to come to terms with what happened and move towards studying for a qualification.

Analysis

  1. Mr X was, understandably, profoundly affected by what he read in his birth records. It is not disputed that he suffered a good deal during his childhood, his teenage years and beyond.
  2. However, the Ombudsman cannot by law investigate the decision of the Court to grant the adoption order.
  3. Additionally, there is very little prospect now of being able to conduct a reasonable investigation into the Council’s processes before the Court’s decision. Those matters took place over 20 years ago. Evidence is likely to be unreliable at best.
  4. Likewise, there is little or no possibility of being able to establish through investigation a causal link between the events of 20 years ago and Mr X’s subsequent and present circumstances. The same applies to the complaints that the Council failed in its duty towards Mr X while he was in his adoptive placement. That placement broke down many years ago.
  5. It was not fault on the part of the Council to respond to Mr X’s complaint in the way it did. Mr X made his initial complaint shortly after he found out about the circumstances of his adoption and the Council responded to it then. He did not ask to escalate the complaint until more than twelve months later. He has now explained to me why that was so but his letter at the time did not explain to the Council. So it would be unfair to criticise the Council for saying there did not appear to be any reason why he could not have complained again sooner. In addition, the Council had no prospect, because of the lapse of time, of carrying out an effective investigation.

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Final decision

  1. The Ombudsman cannot reach a robust decision about Mr X’s complaint. I have discontinued the investigation of this complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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