Decision : Closed after initial enquiries
Decision date : 30 Apr 2018
The Ombudsman's final decision:
Summary: Mr X says the Council did not act properly on a safeguarding referral it received in September 2014 with the consequence that his son was left without education between September 2014 and January 2015. No further action is needed as the issue is not one the Ombudsman can deal with.
- Mr X says the Council did not act properly on a safeguarding referral it received in September 2014 with the consequence that his son was left without education between September 2014 and January 2015.
The Ombudsman’s role and powers
- The Ombudsman cannot consider complaints about the commencement or conduct of civil or criminal proceedings in any court of law.
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- I considered the present complaint and papers provided by Mr X and the Council. I also considered the details of Mr X’s previous complaint to the Ombudsman. I discussed matters with Mr X by telephone and considered the audio recording of a conversation with one of the Council’s officers in October 2014. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties in reply.
What I found
- Mr X’s complaint is multifaceted but is primarily focused on events between September 2014 and October 2014.
- In September 2014, the Police attended Mr X’s address following a telephone call from a neighbour. Mr X’s son alleged that his father assaulted him and had attempted to strangle him. The Police child abuse investigation team and the Council initiated a child protection enquiry. Police officers and a social worker interviewed Mr X’s son at his school.
- Police officers decided it was prudent for Mr X’s son to stay with his mother pending further child protection enquiries. The child’s mother lived separately from Mr X in another borough.
- The Council and Police decided to progress the case to a formal child protection investigation under section 47 of the Children Act 1989. A social worker was asked to carry out a child and family assessment.
- The mother told the Council she would contact the school admissions officer of her own council about a school place for their son. Mother registered their son in a school in her area. However, their son returned to Mr X’s care in early October 2014.
- The Council closed its assessment in mid-October 2014.
- Mr X took legal proceedings in the county court against the school and the Council in February 2015. In August 2015, his claims were struck out by the court after a hearing.
- Mr X contacted the Ombudsman after the court judgement. This service closed his complaint about the actions of the school because we cannot investigate what happens in schools. Mr X’s complaint about the child protection investigation was accepted by this service. However, we decided to close it as premature because it had not been put through the statutory children’s complaints process.
- Mr X’s complaint was put through the statutory children’s complaints process. It was summarised in the following way:
- The actions taken by the Council in [September 2014] failed to consider the needs of [his son] in terms of his physical, social, emotional and educational welfare and it caused him to suffer. It is unusual under section 47 enquiries to hand over care of a child for no apparent reason, even more unusual in this case as it was done to aid the removal of my son from the school roll. I was calling and leaving messages for the social worker to inform the school that my son needs to return to regular routines but the social worker ignored my calls and emails and instead called my ex-wife to inform her that I was trying to get my son back to [his former school] as if it was her duty to keep him out of the school and Enfield area. I believe the use of section 47 for this purpose is unlawful.
- There was a failure to follow procedures and a failure to investigate the allegation that I strangled my son, an allegation denied by my son, and which came solely from the school. This was confirmed by a police officer.
- Children’s services acted outside its legal remit by removing my son from my care and told me I could not take him home from school.
- My son was left with his mother with the knowledge that her home was not sufficient for him.
- Children’s services tried to provide emergency accommodation for the mother through Ealing Council by providing false information claiming she was fleeing domestic violence whereas they had separated six months earlier and had not lived together in that time.
- His son fought daily to return to him and was even taken to a hospital because he wanted to return to his father while his mother claimed she was told by children’s services not to let him return or see Mr X because he was at risk of harm.
- Children’s services did not have enough evidence to instigate section 47 enquiries.
- His rights as a father with parental responsibility were not considered.
- If children’s services had been truly concerned for his son then officers must have known his son would eventually return to him but this was not considered.
- Children’s services failed to consider proportionately the decision that uprooting and unsettling his son from his day to day life would have on his social, emotional and educational needs.
- Children’s services failed to provide any information as to why he was not allowed to collect his son from school despite promising to go and see him on the day after his son was interviewed at school.
- He was not told until March 2015 that there had been a section 47 investigation.
- Children’s services closed the case when officers became aware his son had returned to his care and then denied any knowledge that he was back in the area.
- The social worker spoke to his ex-wife and sent a reply to an email message from Mr X before denying receiving the email.
- The social worker instructed his son’s former school not to respond to his calls or to his request that his son needed to resume his normal routine at school.
- The independent investigator did not speak to the police officers present when his son allegedly told them he was assaulted by Mr X. He says he spoke with one of the officers who said his son did not make the allegation otherwise Mr X would have been arrested.
- The independent investigator said he did not see a police report of 5 October 2014 in which his son stated he wanted to return to his father even though the report was available to him.
- The independent investigator gave the impression his son’s case had been transferred to the borough where his son’s mother lives but this was untrue.
- Mr X’s complaint is outside the Ombudsman’s jurisdiction because he took legal proceedings against the school and the Council in 2015. The exclusion of court proceedings from the Ombudsman’s jurisdiction is intended to prevent us considering those matters already decided by the courts.
- Mr X says the facts of his complaint were not considered by the court and so his complaint is now capable of being considered by the Ombudsman. It is true the court struck out Mr X’s claim against the Council. However, I note the following comment from the district judge about Mr X’s claim:
“When [Mr X] filed his reply to defence, it became clear that what he was really seeking to do was to seek to challenge the basis of the section 47 enquiry and said it was without any basis”.
- From this statement, I am satisfied Mr X’s claim against the Council involved the matters which he now complains about. That Mr X’s claim was unsuccessful and did not proceed further does not now mean the Ombudsman can consider his complaint. Schedule 5:1 of the Local Government Act 1974 (as amended) makes clear there is an absolute bar that applies to complaints after the commencement of court proceedings.
- Mr X’s concerns about the accuracy of the independent investigator’s findings clearly were not part of court proceedings. But I am exercising the Ombudsman’s discretion not to pursue a complaint as investigating these concerns would involve considering matters from 2014 and 2015 which are wholly excluded from the Ombudsman’s jurisdiction.
- I closed this complaint because it is outside the Ombudsman’s jurisdiction.
Investigator's decision on behalf of the Ombudsman