Decision : Upheld
Decision date : 27 Mar 2019
The Ombudsman's final decision:
Summary: Mr and Mrs F make several complaints about the way the Council dealt with safeguarding issues in relation to their daughter. There was some fault by the Council, for which it has already apologised. This remedies the injustice caused.
- Mr and Mrs F complain the Council:
- breached Mrs F's confidentiality by revealing she had made a safeguarding referral about her granddaughter, J.
- wrongly said Mr and Mrs F were 'argumentative and antagonistic' during a meeting.
- wrongly referred to Mr F as a 'perpetrator' in a letter to a solicitor.
- failed to protect J by allowing her to return home in October 2016.
- wrongly allowed Mrs F's ex husband to be present at a network meeting on 19 October 2016.
- wrongly criticised Mrs F for asking her granddaughter 'direct questions'.
- has not answered questions they raised at a meeting in November 2016.
The Ombudsman’s role and powers
- 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 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)
- 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)
- 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)
- 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
- I spoke to Mrs F about the complaint and considered the information they sent, the Council’s response to my enquiries and:
- The Children Act 1989 (“the Act”)
- Statutory Guidance Working Together to Safeguard Children 2015 (“the Guidance”)
- The Derby and Derbyshire Safeguarding Children Boards Procedures (“the Procedures”)
What I found
- The Children Act 1989 says councils have a duty to safeguard and promote the welfare of children within their area who are in need.
- If a council considers a child may be suffering, or be likely to suffer, significant harm, it should hold a strategy discussion to enable it to decide, with other agencies including the police, whether to initiate safeguarding enquiries under section 47 of the Act.
- Where concerns of significant harm are not substantiated the Council should determine whether the child is a “child in need”. A child in need may be assessed under section 17 of the Act. Following this “child and family assessment” if the council decides to provide services, a child in need plan should be developed.
- The Procedures say when a member of the public reports a concern about a child, their personal information should only be disclosed to the person alleged to have harmed the child with their consent, unless there is an exceptional reason to do so.
- This is because of the risk of reprisals in some cases, and because it may reduce the willingness of some people to make referrals, thereby increasing the risk to children.
- If there is a dispute between parents about access and contact with a child then one of the parents can apply to court for a child arrangement order. The court will then decide who the child should live with and who else a child should spend time or have contact with. Applications for child arrangements orders are usually private law matters as they are between individuals. Courts will often consider reports from the local council’s children’s services department regarding contact. (Children Act 1989, section 7 & 8)
- The law sets out a three stage procedure for councils to follow when looking at complaints about statutory children’s social care services.
- At stage 2 of this procedure, the council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review.
- If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
- Mr F is J’s biological father following a surrogacy arrangement between Mr and Mrs F and Mrs F’s daughter, Ms X.
- Following J’s birth, Mr and Mrs F were unable to care for her due to their health conditions, so J lived with Ms X and her partner Mr Y. Ms X and Mr F have parental responsibility for J. Mr and Mrs F had regular contact with J.
- In July 2016 Mrs F made a safeguarding referral to the Council. She said J was being verbally, emotionally and physically abused by Ms X and Mr Y. She was also concerned that J had contact with Ms X’s father, who was the subject of historical physical and sexual abuse allegations by Mrs F.
- The Council held a strategy discussion and decided to carry out safeguarding enquiries. In August 2016 the enquiries found the allegations were unsubstantiated, as there was not enough evidence to prove or disprove them. However, there were concerns that J was at risk of emotional abuse from Mr F and the social worker recommended a child in need plan be put in place.
- In October 2016, Mr and Mrs F became concerned about J whilst she was staying with them for the weekend. J had a panic attack whilst telling Mr and Mrs F that she was scared of Mr Y who had threatened to hurt her. They called an ambulance and J went to A&E. Mrs F videoed J answering a question about why she was scared of Mr Y.
- The hospital contacted the social worker who said J should not return to Ms X and Mr Y until she had spoken to them. Mr F said he would not let J go back to Ms X’s house as he was concerned she would be harmed. The social worker spoke to Ms X about the situation. Ms X said she would seek legal advice.
- Mrs F says the social worker told Ms X’s solicitor there was no reason J could not return home, but then told the police J should stay with Mr and Mrs F until an assessment had been completed.
- On the Monday, Ms X took out an emergency court order for J to be returned immediately. Mr and Mrs F attended a police station and took J to speak to the social worker. They then took J back to Ms X’s.
- There was a meeting on 19 October 2016 to review the child in need plan. Ms X brought her father for support. Mr and Mrs F were invited, but when they arrived they refused to attend. Mrs F said there was restraining order on Ms X’s father so they could not be in the same room together. Mrs F asked for the meeting to be re-arranged. The social worker said a contact schedule would be agreed at the meeting and this could be discussed with Mr and Mrs F separately. The meeting went ahead without Mr and Mrs F. The Council then told Mr and Mrs F that their direct contact with J had been ended.
- The police told the Council that, whilst there was no restraining order, there should be no contact between Mrs F and Ms X’s father as they were investigating Mrs F’s allegations against him.
- Ms X applied to the court. At the hearing the Judge said he was concerned that Mr and Mrs F had videoed J.
Mr and Mrs F’s complaints
- In November 2016 Mr and Mrs F complained to the Council that it had failed to protect J. They said the Council should not have allowed J to return to Ms X and Mr Y as it was aware of J’s disclosure. They said the hospital had not wanted J to return to Mr Y, but this had been ignored.
- The Council responded on 12 December 2016 following a meeting with Mr and Mrs F. Mr and Mrs F remained dissatisfied and continued to raise new complaints about the matter until September 2017. They then asked for their complaints to be considered at Stage 2.
- The Council appointed an independent investigating officer in November 2017. The investigating officer’s report was issued in March 2018. The Council initially refused to escalate the complaint to Stage 3, but agreed to do so after Mr and Mrs F approached the Ombudsman.
- The Stage 3 panel issued its findings in September 2018. It upheld one of the seven complaints and partially upheld another. The panel found:
- The social worker had wrongly told Ms X that Mrs F had made a safeguarding referral about J. This was because she had mistakenly believed that Ms X already knew this information. The Council had apologised for this. Mrs F’s name and address were on the safeguarding records, but this was normal practice as she was the wife of Mr F and grandmother to J, so this part of the complaint was not upheld.
- The Council accepted that the social worker had wrongly said Mrs F had been argumentative during a meeting. It apologised for this.
- The social worker had been entitled to describe Mr F as a “perpetrator” in a letter to Ms X’s solicitor for the purposes of Ms X's application for legal aid, although Mr F had never been charged or prosecuted with any offence. This was her professional opinion and the word was a standard phrase on the Ministry of Justice form.
- The Council could not prevent J’s return to Ms X and Mr Y’s care, as Ms X had taken out a court order to require her return. It was therefore the court’s decision, based on the information it had. Mr and Mrs F could have stated their case to the court.
- The social worker had been unware that Mrs F and Ms X’s father could not have contact. Ms X had been entitled to bring her father to the meeting and the social worker had offered to have a separate discussion with Mr and Mrs F.
- Social workers had specific training relating to asking questions of children; it was not wrong for a social worker to challenge the way Mr and Mrs F had questioned J.
- The Council considered that its letter of 12 December 2016 had addressed all the points raised in the meeting. There was no evidence of questions raised by Mr and Mrs F that had not been responded to.
- If a council has investigated something under the children’s social care complaints procedure, the Ombudsman would not re-investigate the complaint unless we consider the independent investigation was flawed. I have therefore firstly considered whether there was any fault in the way the Council carried out the Stage 2 investigation.
- The Council appointed an investigator who had had no previous involvement with the matter. The independent investigator agreed a statement of complaint with Mr and Mrs F. The investigation took account of evidence from a range of sources, and addressed each of the complaints in detail. The report shows the investigator weighed the evidence and drew logical and objective conclusions from it. The report is clear, comprehensive and makes relevant recommendations. The investigation was overseen by an independent person who was content with the conclusions. Having considered all the information available to me, I find the investigation was carried out in line with the complaints guidance. I have therefore not re-investigated the whole matter.
- My role is to look at whether the Council properly considered the findings and recommendations of the independent investigation. I have also considered whether there was any fault that was not identified by the independent investigator or the Stage 3 panel. I have dealt with each part of Mr and Mrs F’s complaint separately.
a) breached Mrs F's confidentiality by revealing she had made a safeguarding referral about her granddaughter, J.
- The Council has accepted it should not have disclosed Mrs F’s identity to Ms X without her consent. It has already apologised.
- Mrs F says they suffered harassment by Mr Y and the police had to be called twice. Mr and Mrs F consider this only happened because the social worker told Ms X who had made the referral. They consider the Council should pay them compensation.
- To make a sole causal link requires a conclusion, on the balance of probabilities, that Ms X would not have suspected or found out who made the referral without the statement by the social worker. I have seen evidence there were existing disputes within the family. Given this, on the balance of probabilities, I cannot say it is more likely than not that Ms X would not have found out or suspected Mr or Mrs F’s identity without the social worker’s disclosure. So, I cannot say what happened to Mr and Mrs F was solely the result of the social worker.
- I accept the disclosure would have caused distress and anxiety to Mr and Mrs F. The Council’s apology is in line with the Ombudsman’s guidance and I consider it to be a sufficient remedy for this injustice.
b) wrongly said Mr and Mrs F were 'argumentative and antagonistic' during a meeting.
- The Council accepted there was fault by the social worker and has apologised. This is an appropriate and proportionate remedy for the injustice caused, so I have not considered this further.
c) wrongly referred to Mr F as a 'perpetrator' in a letter to a solicitor.
- The term “perpetrator” is a standard one used in safeguarding matters, so I cannot find fault with the Council in using it. The social worker could have phrased her letter more clearly to explain that, following the child and family assessment, in her view Mr F was an “alleged perpetrator” of emotional abuse against J, but her letter was not fault.
- Mr and Mrs F say the social worker’s letter biased the court against them. I do not agree with this. It was for Mr and Mrs F to put their case to the court, so the court could take a view on all the information before it. So, even if the letter was badly worded, this did not cause significant injustice to Mr and Mrs F.
d) failed to protect J by allowing her to return home in October 2016.
- Mr and Mrs F consider the Council ignored the opinion of the doctor, duty social worker at the hospital and police who said J should not go home to Ms X.
- There is no fault by the Council. It was unable to prevent J’s return once Ms X had successfully applied for a court order. Mr and Mrs F could have put their case to the court.
e) wrongly allowed Mrs F's ex husband to be present at a network meeting on 19 October 2016.
- Ms X was entitled to bring her father to the network meeting, so it was not fault by the Council to allow this.
- Once Mr and Mrs F explained they were unable to attend with him present, the social worker said she would have a separate discussion with Mr and Mrs F. This was an appropriate solution and I do not find fault by the Council.
- Following this meeting, Ms X applied to the court to reduce J’s contact with Mr and Mrs F. This is not fault by the Council.
f) wrongly criticised Mrs F for asking her granddaughter 'direct questions'.
- Social workers are entitled to challenge family members and question children. I have seen no evidence that the social worker’s behaviour in challenging Mrs F breached the standards of conduct or performance. I therefore do not find fault.
g) has not answered questions they raised at a meeting in November 2016.
- After Mr and Mrs F complained, they met with two officers. Following this meeting the Council wrote to them with its views on the matters that had been raised. I realise Mr and Mrs F consider questions remain unanswered, but I have reviewed the correspondence between them and the Council from November 2016 to September 2017 and I have seen no evidence of this. The Council has responded to their complaints and the independent investigator agreed a summary of the complaint with them, which has then been properly investigated. I do not find fault.
- To prevent a recurrence of the failings identified in paragraph 37, which might in other circumstances place a child at risk of harm, the Council has agreed to, within a month of my final decision, remind all children’s social care staff that the identify of a member of the public who has made a safeguarding referral should not be disclosed to a third party without their consent.
- There was fault by the Council. The Council’s apologies remedy the injustice caused. I have complete my investigation.
Investigator's decision on behalf of the Ombudsman