Summary: Mr X complained the Council failed to act in line with its safeguarding and post-adoption support duties when it placed his adopted child’s half-sibling in a foster placement near to the family home and at the same school. There was no fault in the Council’s decision to place the half-sibling at the school. There was also no fault in the Council’s safeguarding response or post-adoption support.

The complaint

1. Mr X complained the Council failed to act in line with its safeguarding and post-adoption support duties when it placed his adopted child’s half-sibling in a foster placement near to their family home and at the same school. Mr X says there is a risk his child’s birth family could identify them and disrupt the adoption placement. Mr X says the Council has failed to take any action to manage or reduce the risks.
2. Mr X says the matter has caused the family distress, has affected their mental health, and has impacted on his child’s education.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I spoke to Mr X about his complaint.
7. I considered the Council’s response to my enquiry letter.
8. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Adoption

9. An adoption order gives adopters parental responsibility for an adopted child. It severs the legal ties between a birth parent and the child. The adopter becomes the child’s legal parent. It ends any order made to a council giving it parental responsibility, such as a care order. (Adoption and Children Act 2002, section 46)
10. “Closed adoption” is where a child has no direct contact with their birth family after they are adopted. Indirect contact, such as letters sent to and from the adopter(s) may take place. “Open adoption” is where a child has some direct contact with their birth family after the adoption order is made.

Post-adoption support

11. Councils must have regard to the Department of Education’s 2013 statutory guidance on adoption when carrying out duties relating to the adoption of children and the recruitment and support of adopters in England. 
12. Adoptive families have a legal right to an assessment of adoption support needs from the council responsible for their post-adoption support. The assessment covers a range of needs, from mental health and the need for therapeutic services to additional support during a child’s education.
13. The 2013 guidance says contact arrangements between a child and their birth family should be focused on, and shaped around, the child's needs. The child’s welfare is the paramount consideration. Unauthorised contact, such as through social media, is highlighted as a potential challenge. The guidance says councils should provide help and support in such cases.

Safeguarding duties

14. Councils have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)

Duties to looked after children

15. Parents keep their parental responsibility even when a child is accommodated by a council under a care order. They have a right to be told and consulted about all decisions, usually as part of a looked after child review. These rights end when a child is adopted.

Council’s complaints policy

16. The Council’s complaints policy says it will not consider any matter on which legal action has commenced.

What happened

17. Mr X and Mrs Y adopted their child, Z, soon after the child’s birth. The adoption was a “closed adoption” with no direct contact between Z and their birth family. Annual letterbox contact from the birth family to Z was agreed. Z has lived with their adoptive family in the same area since the adoption. Z also has an older half-sibling, child J, who is not adopted and is in the care of the Council as a looked after child.
18. In November 2021 Mr X became aware that J was attending the same school as Z. He told the school and the Council’s post-adoption team he was concerned that the birth family may become aware of Z and the adoption placement could be disrupted.
19. In response, the school completed a safety plan to manage any potential identified risks. However, Mr X withdrew Z from the school due to his concerns. The school provided Z with home learning support. A post-adoption social worker was allocated to the family to conduct an assessment.
20. In late November 2021 the social work team for J held a professionals meeting which included the post-adoption social worker and J’s social work team. The meeting considered the potential risks. It recommended a referral for further post-adoption support for Mr X, Mrs Y and Z, and arranged another meeting to include the school and adoptive parents.
21. In December 2021 the Council held two further meetings which included Mr X and Mrs Y, the post-adoption support team, and the school. Mr X and Mrs Y explained their concerns but said they would not consent to information being shared with others outside of the meeting. The Council told them:
• It would not move J from the school or foster placement as it was not in their best interests.
• It had considered the circumstances but did not believe there to be a safeguarding risk posed by the birth family to Z.
• It could not conduct further assessment of the circumstances without informing and involving other relevant parties. As Mr X and Mrs Y did not wish to share the information, it could not conduct further enquiries or establish a safety plan.
• Post-adoption support would continue.
• They could consider open adoption as a way to address the concerns.
22. Mr X complained to the Council. He said:
• The placement of J in the same location as Z was a safeguarding matter and the Council should act to address the issue.
• The Council’s view that open adoption would be appropriate to address the concerns was wrong.
• The Council was in breach of the adoption order and its decisions went against what was written in Z’s Child Permanence Report which said that direct contact between Z and their birth family was not in their best interests.
23. The Council responded five days later. It told Mr X that:
• Following Z’s adoption, it did not hold updated information about Z, such as the school they attended. It was therefore unable to prevent the situation from occurring.
• It held a meeting with Mr X to discuss the concerns and its decision remained the same.
• The Council’s proposals of post-adoption support were based on an acknowledgement that the current circumstances were distressing, but also that Mr X and Mrs Y retained parental responsibility which meant they can make the final decisions about what support Z receives and whether contact between Z and their birth family would take place.
• The Council would not share updated information about the birth family as this would be in breach of data protection. It said the recommendation for open adoption was a considered one and based on the Council’s current understanding of the risks identified.
• It could offer further post-adoption support to the family to enable them to understand open adoption and how this could be managed.
24. In late December 2021 Mr X requested a stage 2 complaint response from the Council. He repeated his concerns about the historical risks posed by the birth family, concerns around open adoption, and requested further information about the birth family to enable him to make safeguarding decisions for his family.
25. Mr X then instructed a solicitor and told the Council of his concerns that his Human Rights Act (1998) Article 8 right to a private and family life was being infringed by J’s placement at the same school and in the same local area. The Council stopped the complaints process because of the potential legal action, in line with its policy.
26. In April 2022 the post-adoption support team completed their assessment. The assessment recommended additional therapeutic input for the family and support around potential open adoption. However, Mr X and Mrs Y did not wish to access the support at the time and so the post-adoption support team ended their involvement.
27. In May 2022 Mr X decided not to pursue legal action to allow the Council to respond through its complaints process. The Council sent a stage 2 response later that month. It repeated the rationale given at stage 1 about the decision-making process of J’s placement and its views about the birth family not posing a risk to Z. It said due to data protection, it could not maintain a database of adopted and unadopted children for the purpose of care planning. It highlighted the post-adoption support available and concluded it did not uphold the complaint.
28. Mr X challenged the stage 2 response on the same day. He repeated his concerns about the placement and explained the impact of the circumstances on the family. He asked the Council to put a process in place to ensure the situation did not reoccur. He challenged the Council and said it was fully aware of his address due to the letterbox contact between Z and their birth family.
29. Later in May 2022 Mr X and Mrs Y contacted the post-adoption support team and requested additional support. A new social worker was allocated shortly after, and a re-assessment began.
30. The Council responded to Mr X’s new comments in early June 2022 and said it would not consider the matter further. It informed Mr X to speak with Z’s school about additional educational input, told him it would not consider support to move home at that time and further support would be provided by the post-adoption team.
31. The post-adoption support team completed their assessment in August 2022. The assessment recommended additional support for Mr X and Mrs Y around open adoption. The post-adoption support fund was accessed to provide 12 sessions of therapeutic input for the family. It also said adoption support services would work closely with the social work team for J, including safety planning if the decision was to inform Z and J of each other’s identity and around post-adoption contact.
32. Mr X remained unhappy and complained to us. He said Z has since returned to the school.
33. In response to our enquiries, the Council said:
• The social work team for J had no access to Z’s file, therefore they were unable to consider these details when care planning for J.
• Z’s file did not contain information about their school or new name as the Council had no active involvement with them.
• Z’s name was changed after they were adopted so neither the school nor the social work team would have been able to make a link at the point of the school placement.
• There are no records to evidence the above because Z’s record is restricted.
• It could not move J from the school without informing their mother about the reason why because she still holds parental responsibility.
• Further safeguarding action was not necessary as the birth family’s circumstances had changed since Z was adopted.
• Mr X and Mrs Y had not consented to share information to enable further assessment to take place, and any processing of data about the birth family without their consent would be a data breach.

Analysis

Placement at the same school

34. The Ombudsman is not an appeal body. We cannot question the merits of a council’s decision unless we find fault in the process it took to make that decision.
35. J was placed at the same school as Z by the Council. The Council were aware of Mr X’s address due to letterbox contact it sent to Z, however it was not aware of the school Z attended. Mr X said a “sibling checklist” for adopted and non-adopted siblings should have been in place to ensure no contact took place between Z and their birth family. However, this is not a requirement within either statutory guidance or legislation.
36. Once a child is adopted, they are treated in law as if they were the birth child of the adopter(s). The Council’s day-to-day involvement with Z ended once the adoption order was made. Because the Council had no safeguarding concerns regarding Z, it had no basis upon which to make enquiries or record information about them for the purpose of care planning for J.
37. As a result of the above, the Council were not at fault for placing J at the same school as Z. The Council had no active involvement with Z, and it had no knowledge of the school they attended. There is no requirement for the Council to ensure a complete separation of the birth family and the adopted child in public.

Safeguarding response

38. Mr X removed Z from their school and said that the matter was a safeguarding issue. However, the school had a safety plan in place and neither the birth family nor the children had knowledge of the situation. The Council told Mr X that it held no record of safeguarding concerns regarding the birth family. As Mr X and Mrs Y did not consent to sharing information, the Council were unable to conduct further formal safeguarding assessments and enquiries.
39. The Council can only conduct enquiries relating to a child with the permission of those holding parental responsibility, or if it believes there to be a significant risk of harm in which case consent can be overridden. The records provided by the Council show it considered the risks and decided there was no significant risk of harm which would allow it to override the birth family’s consent. There is also no evidence that Z has come to any harm because of the circumstances. Therefore, the Council was not at fault in its safeguarding response.
40. The Council considered whether to remove J from the school. However, Mr X and Mrs Y did not consent to information sharing. As a result, the Council could not move J without actively withholding information from J’s parents about the reason for the move. The Council cannot withhold this information from those who hold parental responsibility. In addition, the Council considered this would be against J’s best interests. Therefore, the decision to keep J at the school was not fault.

Post-adoption support

41. The post-adoption support team completed two assessments with Mr X and Mrs Y. The assessments considered the concerns and made recommendations about how the family could be supported. This included therapeutic support and support around potential future contact between Z and their birth family. There was no fault in the way the Council responded to the request for post-adoption support, and the assessments were completed in line with statutory guidance and legislation.

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Final decision

42. I have completed my investigation. I found no fault by the Council.

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Investigator's decision on behalf of the Ombudsman