The Ombudsman's final decision:
Summary: Mrs J says the Council failed to provide her with important information about her adopted children prior to adoption. She says this caused her and her adoptive children injustice as they did not receive vital support. The Council has lost most of the relevant evidence and failed to keep documents it was required to keep but, on the available evidence, the Council was not at fault for withholding information from Mrs J. The Council has agreed to pay a sum to Mrs J and her adoptive children in recognition of the injustice caused.
- Mrs J complains about the Council’s actions in respect of her children. In particular, she says the Council did not:
- safeguard her daughter while she was in foster care prior to adoption in 2008;
- provide adequate information at the time Mrs J adopted the children;
- carry out the actions it had identified as necessary to support the placement;
- liaise with Mrs J’s own local authority, following the adoption; and
- provide adequate post-adoption support when this was requested in 2010.
- a full investigation into the processes the Council followed during her adoption of the two children to find out whether:
- Officers withheld significant information about abuse to her daughter;
- The Council complied with the relevant legislation;
- The Council was negligent and failed to offer the necessary support;
- The Council failed to safeguard the children during their final foster placement; and
- There is ground for a criminal investigation;
- Apologies to parents and children for the Council’s failings
- A determination on whether the Council should refer itself to OFSTED;
- A determination on whether any other form of remedy should be provided.
What I have investigated
- The Ombudsman will not normally investigate a complaint that is made more than a year after the events complained of. However, we have discretion to do so where there is a good reason to use that discretion. One such reason is where a complainant is not aware of the fault at the time but this fault is later revealed and the complainant comes to the Ombudsman within a year.
- Mrs J says the Council failed to provide her with information prior to the adoption in 2008 and that, had she known this information, she would have asked for greater support. While this took place more than a decade ago, and is therefore out of time, there is evidence that she did not become aware of the impact of this alleged fault until 2017. She then complained to the Council in 2018. I have decided, therefore, to use the Ombudsman’s powers to investigate parts a) and b) of the complaint which deal with these matters.
- However, Mrs J also says the Council could and should have provided more support after the adoption between 2008 and 2011 when her home council took over responsibility for them.
- Mrs J was aware of both the facts she is now complaining of and the injustice she says they caused at that time which ended a decade ago but she did not come to the Ombudsman. She has not provided a good reason for not doing so. Therefore, I have no reason to use our discretion to investigate parts c), d) and e) of her complaint and I have not done so.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We 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, as amended)
- We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- Mr and Mrs J and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legal and administrative
- Adoption is, and was at the relevant time, governed by the Children and Adoption Act 2002. Councils are obliged to manage the adoption process which will be approved by the courts.
- Councils must assess prospective adopters. They must also give prospective adopters all the known relevant information about the child(ren) before they agree to the placement.
- When a child is placed for adoption by a local authority, the child continues to be looked after by that local authority. It remains responsible for that child, wherever the child is living until the adoption order is made. Once an adoption order is made, the child ceases to be ‘looked after’ and the placing authority has no further responsibility towards them, except in respect of adoption support. Statutory Guidance on Adoption, 5.29.
- In non-agency adoptions, the child’s home local authority has a duty to provide a report to the court to assist it in reaching a decision on the application. It must contain all relevant information which would assist the court in making its decision. This should include all information about the child’s health and needs for treatment going forward. Statutory Guidance on Adoption, ch 8
- Where an adoptive child has care needs and the adoptive parents live in a different local authority area, the child’s home local authority remains responsible for the child’s needs after placement for three years. After this, the adoptive parents home local authority assumes responsibility for the child’s welfare. Statutory Guidance on Adoption, Ch 9, Adoption Support Regulations
- Councils are required to keep records about children for whom they have had responsibility who are then adopted for 100 years. (Adoption and Children Act 2002 Guidance (2011))
- The information that must be kept is set out in s.56 of the Regulations. It should form a comprehensive record of the adopted person’s childhood including but not limited to:
- photographs, perhaps in a life-story book
- medical records
- court orders and other records
- reports about the child
- all social work records
- key correspondence with family members
- minutes of council meetings
- signed agreements
- Council are data handlers and must report data breaches within 72 hours to the Information Commissioner’s Office (‘ICO’).
- Mrs J, the complainant, and her husband, Mr J, do not live in the Council’s area. In 2008 they adopted two children who had previously been looked after children in the Council’s care: X and Y.
- Before the adoption took place, X and Y lived with Mr and Mrs J for a year. During this time, X, the older child, told Mrs J she had been abused. Mrs J informed the Council which arranged for X to be medically examined. Mrs J accompanied X for the examination. The Council also informed Mr and Mrs J’s home council.
- The adoption process proceeded. The Council prepared a report for the court in which it stated that X had certain problematic behaviours. The Council said that both children would require counselling at some stage for the traumas they had suffered.
- The court approved the adoption in 2008. The Council agreed to provide continuing support via the Post Adoption Centre.
- Problems began to emerge with X’s behaviour and, after two years. Mrs J approached the Council for assistance via the Post Adoption Centre in Croydon. The Council referred her to the Child and Adolescent Mental Health Services (CAMHS) in Mrs J’s local area. CAMHS refused to offer X support.
- Over the next few years, X resumed contact with several members of her birth family including her father. This appears to have been disruptive for her and, a little under five years ago, Mr and Mrs J’s relationship with X broke down and she returned to the care system.
- In 2018, Mrs J complained to the Council about its failure to provide relevant information to her or the court in the period before the adoption and about its failure to provide support to them when they requested it some two years after adoption.
- Mrs J has also complained that X and Y’s academic performance has been hampered by the Council’s failures to provide the correct assistance when it was responsible for the children.
- Since then, both X and Y have been diagnosed with autism spectrum disorders.
Was there fault causing injustice?
Loss of records
- In response to my enquiries, the Council told me that it had asked its document storage contractor for the requested information but had been told that much of it had been lost.
- The Council has sent me the information it has and I have used this to reach my decision. However, this information shows that the Council has been aware that many of its records have been missing for some years. It looked for information about the children in 2008, 2013 and 2018 without success.
- This is clearly a data breach and, therefore the Council should have referred itself to the Information Commissioner’s Office (ICO). However, in response to my enquiries, the Council told me that it had not done so until after I made my enquiries. This was fault.
- Data security is, overall, a matter for the ICO. As the Council says it has now referred itself to the ICO, I do not intend to make recommendations about possible systemic failings in the Council’s data storage.
- However, the ICO does not provide remedies for personal injustice caused by Council data failures whereas the Ombudsman does.
- These failures had much greater consequences for X and Y. The Council had a duty to keep their records for 100 years. The evidence suggests they were lost shortly after adoption and the Council became aware of it at around this time but did not act. This increases the likelihood that the information has been permanently lost and that, should they ever wish to look at it, they will not be able to do so. I have recommended a payment to X and Y as a token of that injustice.
- This fault has also meant that Mr and Mrs J do not have access to all the information that they will no doubt believe might have led me to uphold their complaint. This will cause them ongoing distress and I have recommended a remedy for this too.
Failure to safeguard while daughter was in foster care
- While the Council has lost many records, it has provided me with sufficient information, I believe, to reach a decision about the complaint.
- In particular, I have looked at social work case notes for the period between 2006 and 2018 and various other records including records of foster carer investigations and the pre-adoption report prepared for the court prior to the adoption. These ‘Annex A’ reports must be prepared for the court prior to any adoption and must contain all the relevant information that could prove relevant to the success of the adoption. This would include any behavioural or educational problems and any suspicions of abuse.
- I have also considered the extensive information that Mrs J has provided which, in the absence of Council records has filled in many of the gaps which might otherwise have been left.
- Mrs J says the Council failed to safeguard X and Y while they were in its care. The evidence I have seen does not support that claim.
- Mrs J says the Council was aware of sexual abuse of X while she was at a foster placement arranged by the Council in 2006. However, the records I have seen do not support this claim. The Council records do not mention sexual abuse until 2007 when Mrs J says X made an allegation of abuse while staying with a foster parent.
- At this point, X was living with Mrs J. The Council arranged for a medical examination. The Council has pointed out to Mrs J in its complaint response that X’s claims about this alleged event have not been consistent. Further, as this is the first time that the allegations were made and, at this time, X was living with Mr and Mrs J, the risk of further abuse had been removed.
- Mrs J says she was copied into an email a year before this which stated that X had been observed to act inappropriately with males. She says that this is evidence that the Council knew that X had been abused. However, this does not follow. I have seen no mention in the papers which the Council or Mrs J have provided which mention any suspicion of sexual abuse of X prior to the report made by Mrs J herself. I therefore do not find the Council failed to safeguard X.
Failure to provide adequate information prior to adoption
- Mrs J says that, if she had known the severity of the abuse, she would have insisted on extra support before going ahead with adoption. She says the Council should have told her about it.
- However, the Council could only have done so if it had been aware of any such abuse. The evidence shows that it was not.
- Further, even if the Council had been aware of such evidence and had withheld it, this would not mean that the subsequent problems in the children’s lives and with the adoption itself were caused by Council failures.
- The evidence I have seen suggests that there were many other factors in X’s life which occurred after adoption which complicated her relationship with Mr and Mrs J. In particular, her renewed relationships with members of her birth family seem to have caused considerable difficulties for the entire family. This was beyond the Council’s control.
- Mrs J also says that the Council could and should have informed her of Y’s educational difficulties before the adoption took place. She says the failure to do so led to Y’s later educational difficulties.
- However, again, the records show that the Council had no knowledge of educational difficulties for either X or Y. Both X and Y were considered, in the period prior to adoption, to be performing at or above the expected level academically.
- Mrs J has provided school reports for Y from Year 6 which show, she says, that Y was falling behind then. But, at this time, the Council was no longer responsible for Y or X. It cannot, therefore, be at fault. In any event, councils are not responsible for matters occurring in schools.
- Council records also show that X and Y were progressing normally in other ways too. Assessments show that there was no suspicion that either child had any special educational needs or autism spectrum disorders (ASD). Assessments show the children were happy though recognised that they would need therapy in future to help them deal with the trauma suffered as a result of witnessing domestic violence and growing up in ‘a chaotic atmosphere fuelled by drug and alcohol abuse’.
- X and Y were both recently diagnosed with ASDs but there is no reason to think that these were could have been diagnosed before 2011 when the Council handed over responsibility for X and Y to Mr and Mrs J’s home council.
- In summary, there is no evidence that the Council had information which could have been helpful to Mr and Mrs J as adoptive parents and withheld that information from them.
- I have found the Council at fault for its failures to keep proper records. This fault has caused injustice to X and Y. They will not have the opportunity to look at her records should they ever wish to do so.
- It has also caused injustice to Mr and Mrs J. They will believe that, had there been further evidence available, I might have upheld their complaint.
- The failure to keep proper records is a serious matter for exactly these reasons. Our remedies should, wherever possible, return the complainant to the position they would have been but for the fault found. However, in this case, that is impossible. The records are gone and, if they are ever found, it will be too late for this complaint.
- The matter has now been referred to the ICO. The Council has agreed to pay token payments to the family in recognition of its fault.
- The Council has agreed that, within four weeks of the date of this decision, it will:
- Write to Mrs and Mrs J and to X and Y and apologise for losing data which is of considerable importance to them.
- Pay X and Y £1000 each for the loss of their historical personal data.
- Pay Mrs and Mrs J £500 for the injustice caused to them by the loss of data.
- Within three months, the Council will write to the Ombudsman and state whether the matter has been considered by the ICO. When the ICO’s investigation is complete, the Council will inform the Ombudsman of the result.
- I have decided the Council was at fault and recommended a remedy for that fault. The Council has agreed to my recommendations. I have closed my investigation.
Parts of the complaint I have not investigated
- As stated above, I have not investigated parts c), d) or e of Mrs J’s complaint (as set out in Paragraph 1 of this decision). These events took place more than a decade ago. Mrs J was aware of them at the time and could have complained about them then. She has provided no good reason why she did not do so.
Investigator's decision on behalf of the Ombudsman