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Surrey County Council (18 005 872)

Category : Children's care services > Child protection

Decision : Upheld

Decision date : 29 Mar 2019

The Ombudsman's final decision:

Summary: Mr X says the Council did not communicate with him when it conducted a section 47 enquiry into an allegation of abuse made by one of his children in 2017. There was no fault because the Council did not communicate with Mr X before it closed the section 47 enquiry. There was fault because the Council asked Mr X’s former partner to sign a working agreement without fully considering all the circumstances. It should also have consulted the Police when it closed the enquiry. The identified faults did not cause Mr X significant injustice to warrant further pursuit of the matter by the Ombudsman.

The complaint

  1. Mr X says the Council did not communicate with him when it conducted a section 47 enquiry into an allegation of abuse made by one of his children in 2017. Mr X says children services believed the fabricated allegations (without speaking to him after the Police decided to take no further action) in January 2018.
  2. Mr X says the alleged failing of the Council meant he did not see his children for months. Mr X says he spent £10,000 because of the unfounded allegations and he had numerous stressful days, weeks, and months without the pleasure of seeing his children. Mr X says he had to go to court because the Council believed fabrications and produced a section 47 report without speaking to him.
  3. Mr X wants the Council to listen to him; learn from its mistakes; and pay his wasted costs.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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)
  3. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
  4. 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)
  5. 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)

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How I considered this complaint

  1. I reviewed the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and invited the comments of both parties on it.
  2. 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.

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What I found

  1. Surrey Children's Services has a statutory duty to undertake Section 47 enquiries in any of the following circumstances:
    • When for a child who lives or is found in its area, there is 'reasonable cause to suspect that a child has suffered or is likely to suffer significant harm';
    • When a child is subject to an Emergency Protection Order;
    • When a child is subject to Police protection
    • When a person who has been convicted of or cautioned for an offence against a child and is considered to pose a risk to children moves into the household or has regular contact with a child
  2. A decision to undertake such enquiries is usually taken following an assessment. However, a decision to undertake Section 47 enquiries must be taken at any time when it is suspected the child is suffering or is likely to suffer significant harm. This may be:
    • at the point of a Referral;
    • during the early consideration of a Referral;
    • during an assessment; or
    • at any time in an open case when the criteria are satisfied
  3. An Assessment is the means by which Section 47 Enquiries are carried out and must be commenced whenever the criteria for Section 47 Enquiries are satisfied. The Assessment must be completed within 45 working days from the point of referral.
  4. The Section 47 enquiries/assessment must be led by a qualified and experienced social worker from Surrey Children's Services, who will be responsible for its coordination and completion. The social worker must consult with other agencies involved with the child and family to obtain a fuller picture of the circumstances of all children in the household, identifying parenting strengths and any risk factors. Enquiries may also need to cover children in other households with whom the alleged offender may have had contact. All agencies consulted are responsible for providing information to assist.
  5. At the same time, where there is a joint investigation, the Police will have to establish the facts about any offence that may have been committed against a child and collect evidence.
  6. There is a section 47 protocol between Surrey Children’s Services and Surrey Police which governs whether there will be a single or joint agency enquiry.
  7. Police single agency investigations are usually appropriate when:
    • They relate to the historical allegation of an adult who experienced abuse as a child; or
    • The alleged offender is not known to the child or the child's family (i.e. stranger abuse); in these situations, Surrey Children's Services must always be made aware and serious consideration must be given to assessing the child victim's needs.
  8. Joint investigations are conducted by Surrey Children's Services and the Police. A joint investigation must always commence when there is an allegation or reasonable suspicion that one of the criminal offences described below has been committed:
    • any suspected sexual offence committed against a child aged up to and including 17;
    • serious neglect or ill-treatment or emotional harm actionable under Section 1 of the Children and Young Persons Act 1933;
    • serious physical injury to a child, aged up to and including 17 - this includes murder, manslaughter, any assault involving actual or grievous bodily harm, repeated assaults involving minor injury (this includes bruising and/or mental trauma although if the injury is mental trauma, there must be medically recognisable signs before a prosecution can be contemplated.);
    • offences involving organised or institutionalised abuse, including allegations against teachers, Local Authority staff, health professionals, foster carers, prospective adopters and volunteers.
    • injury to a pre-mobile child.
  9. Following a full assessment of the available facts, the Police and/or Crown Prosecution Service (CPS) may decide at any stage to terminate a criminal investigation and will inform the Social Worker of the decision.
  10. Where there is a joint investigation, there should be a separate Surrey Children's Services record of all Section 47 enquiries.
  11. The Social Worker has the prime responsibility to engage with parents and other family members to ascertain the facts of the situation causing concern and to assess the capacity of the family to safeguard the child.
  12. The assessment of the parents must include both parents, any other carers and the partners of the parents. Checks should be completed on a parent who assumes the care of a child during a Section 47 Enquiry.
  13. In most cases, parents should be enabled to participate fully in the assessment and enquiry process, which must be explained to them verbally and also in writing by providing the Surrey SCB booklet 'Families' Guide to Child Protection'.
  14. Parents must be involved at the earliest opportunity unless to do so would prejudice the safety of the child. The needs and safety of the child will be paramount when determining at what point parents or carers are given information. Parents must be kept informed throughout about the enquiry, its outcome and any subsequent action unless this would jeopardise the welfare of the child.
  15. Section 47 enquiries are concluded at the point when an informed decision is made taking account of all information available as to whether the child has suffered, or is likely to suffer significant harm or not.
  16. When a joint investigation has been held, a strategy discussion or meeting should be held to agree the outcome.
  17. Section 47 enquiries will result in one of 2 possible outcomes as set out in Working Together to Safeguard Children 2015:
    • Child protection concerns are substantiated and the child(ren) is/are considered to have suffered, or are likely to suffer Significant Harm, in which case an initial child protection conference must be convened;
    • Child protection concerns are not substantiated and no further action is required OR the enquiries have revealed the child is a child in need for whom services, such as a Family Action Plan/Child in Need Plan, and/or further assessment may be required.
  18. If it is clear that the criteria for Section 47 enquiries are not / no longer satisfied, any decision to cease Section 47 enquiries must be taken in consultation with the Police and other involved agencies, in particular the referring agency after checks have been completed. This decision must be authorised by a Surrey Children's Services manager who must record whether the Assessment should be completed.

Background

  1. The child and adolescent mental health services team (CAMHS) made a referral to the Council’s children’s services and the Police following a disclosure made by one of Mr X’s children in November 2017. Mr X has two children with a former partner. At the time of the referral, his former partner had custody of the children with court mandated contact arrangements for Mr X to see the children.
  2. The Council started a section 47 enquiry because of the referral. The timescale within which the assessment must be completed is 45 working days but the outcome of enquiries under section 47 must be available in time for an initial child protection conference which if required must be held within 15 working days of the strategy discussion/meeting where the enquiry was initiated.
  3. The social worker assigned to the case met with the child who made the disclosure of alleged abuse by Mr X; the children’s mother and her husband at their home. She interviewed the child alone.
  4. The social worker assessed the risk of harm the child was suffering or was likely to suffer. Under a section titled the social worker’s analysis of risks and strengths and recommendations, the social worker explained that CAMHS team was worried about the disclosure made by Mr X’s child. She noted a past allegation made by another of Mr X’s children and the finding made in court that there was insufficient evidence to substantiate the allegation. She noted the history of parental acrimony and allegations/counter allegations.
  5. The social worker was satisfied the children’s mother and her husband were able to meet the children’s basic care needs and the children’s school had no concerns for them.
  6. In terms of harm the social worker said this was the second allegation of sexual abuse made against Mr X and this suggested a greater likelihood that the children were victims of sexual abuse from him. The social worker said the children were not currently in any danger but future danger was likely to occur should the children have unsupervised contact with Mr X. The officer noted their mother and step father were not allowing contact by Mr X and would pursue a change in the contact arrangements through the courts.
  7. The social worker noted the complicating factors were that there was no physical evidence or witnesses to support the child’s disclosure and there was a court ordered contact arrangement in place. Another complicating factor noted by the officer was that Mr X had not been contacted as part of the assessment. The officer said this was because the Council did not want to interfere with the Police investigation.
  8. The social worker decided to enter a ‘written agreement’ with the children’s mother to restrict unsupervised contact with Mr X. The written agreement made clear it was not a legally binding agreement. If the children were to have unsupervised contact with Mr X the agreement stated the Council would consider a new assessment to look into child protection measures to reduce the risk to the children.
  9. The social worker decided to close the case. This was in early December 2017, some three weeks after the referral was received by the Council. The social worker contacted the Police in December 2017 for an update on its investigation. The social worker did not receive a response from the Police. In early January 2018, the social worker again contacted the Police. This time the social worker recorded that the Police did not confirm that she could discuss the investigation with Mr X. Two days afterwards, the social worker recorded that the Police investigating officer would advise Mr X of the outcome of the investigation. The Police investigating officer would then contact children’s services. At that point, the social worker would then contact Mr X to advise him of its involvement.
  10. The Police enquiry continued until late January 2018. The Police contacted Mr X’s solicitors to let them know it would not take any further action on the criminal allegation.
  11. Mr X says the Council did not contact him in the aftermath of the Police contact with his solicitors. He made a complaint on 2 February 2018 and followed this up with other complaints on 17 February and another date. In the 2 February complaint, Mr X says the Council believed the children’s mother’s lies and he was upset that the Council never approached him to ask if any of it was true.
  12. Mr X says the Council’s officers told him they could not communicate with him due to the involvement of the Police when he met with them on 3 March 2018. At another meeting in March, officers told him they had contacted the Police which had then confirmed no further action would be taken in the case. It was at this point that the Council told Mr X about the section 47 enquiry and its decision to close it. Mr X provided a recording of a conversation he had with two officers in which they apologised because the Council did not speak to him before closing the section 47 enquiry. Mr X says the recording proves there was fault by the Council.
  13. Mr X wanted the Council to reopen the case so he could express his views. Officers told him the only way to launch a new section 47 enquiry would be if he wrote to the Surrey multi-agency safeguarding hub (MASH) to report a safeguarding concern. Mr X wrote to the MASH saying that his children were not safe and were being groomed by their mother.
  14. This led the Council to conduct a new assessment involving both children which concluded in May 2018. The social worker noted neither child repeated the allegations of sexual abuse during the assessment and both expressed a wish to see Mr X. The social worker could not substantiate Mr X’s worries for the children’s emotional wellbeing. But the social worker concluded Mr X and the children’s mother would benefit from a plan to ensure the emotional and behavioural needs of the children are met. The social worker noted the acrimony between Mr X and the children’s mother and concluded this was why the children were not having any contact with Mr X as proposed by the court. The social worker noted ongoing court proceedings around contact. The social worker decided to close the case.
  15. Mr X made a compensation claim to the Police. The Police refused Mr X’s claim in June 2018. It said Mr X and his solicitors were aware of its decision not to take any further action in January 2018. It said the investigating officer confirmed the decision when he was contacted by Child Services but the officer could not recall when the conversation took place.
  16. Mr X contacted the Council in August 2018. A senior manager within the children’s services team discussed his concerns with him by telephone. Mr X told the officer his former partner had shared the content of the December 2017 47 enquiry/assessment with the court and he was upset about the content of the report. The officer told him the Council could not investigate his concerns because his former partner put the assessment before the court and this was not the action of the Council.
  17. Mr X told the officer that the Police had informed him that it did not tell children’s services that its officers could not communicate with him. So, Mr X now wanted to complain that the Council failed to communicate with him during the November/December 2017 section 47 process.
  18. The manager explained the Council’s protocol with the Police which is set out in a preceding section of this statement. She told Mr X the Council contacted him to discuss the case once the Police confirmed the end of its involvement with the case. She told Mr X the Council would not put the matter through its complaint procedure because it was a he said/she said situation which could not be resolved by the complaints process.
  19. Mr X also told the officer it was wrong for the Council to support his former partner’s application for legal aid in their private legal proceedings.

Analysis

The Council did not communicate with Mr X when it conducted a section 47 enquiry into an allegation of abuse made by one of his children in 2017

  1. The Council’s procedures are clear that parents should be kept informed of a section 47 enquiry/assessment unless doing so would jeopardise the welfare of the child. The protocol the Council has with the Police also requires the police to undertake the criminal investigation while the Council concurrently undertakes the section 47 enquiry. It is clear the Council will not contact the alleged abuser while the Police investigation is ongoing.
  2. I note the social worker’s record in the assessment document that Mr X was not contacted because of the Police’s involvement. I do not therefore find there was fault by the Council because it did not communicate with Mr X before it closed the section 47 enquiry. The note in the assessment shows the officer was aware of both the normal need to speak to the parents of a child who made disclosures but also the need to prioritise the safety of the alleged victim. The protocol between the Council and the Police in those cases involving criminal investigations also meant the social worker could not simply contact Mr X.
  3. Mr X points to a recording of a conversation with two council officers in which the officers apologised to him because the Council did not speak to him during the November/December 2017 enquiry. Whether the officers decided to apologise to Mr X was a matter for them in dealing with him at the time. The question of fault is not to be determined by what those officers said at a later period but by reference to the Council’s procedures and what the social worker did in November and December 2017.
  4. I find fault by the Council on different matters. The social worker decided to enter into a written agreement with Mr X’s former partner when disposing of the case in December 2017. The working agreement required assurances from Mr X’s former partner that she would only allow supervised contact between Mr X and his children. This was qualified by the expectation Mr X’s former partner would seek legal authority for new contact arrangements from the courts.
  5. But the social worker noted complicating factors included the lack of physical evidence and witnesses to support or corroborate the allegations and Mr X was not contacted as part of the assessment. These complications cast doubt on the officer’s decision to close the case based on a written agreement. It created the impression the social worker used the agreement to protect Children’s services rather than part of a plan to help protect the children.
  6. Given the complicating factors identified by the social worker, I find the case should have been closed by the Council pending further checks on the outcome of the police investigation but without a written agreement.
  7. The evidence does not suggest the Council co-ordinated with the Police and other agencies when it decided to close the enquiry. The Council’s procedures require a joint discussion or meeting to agree the outcome if a joint investigation is underway. This was fault by the Council.
  8. The final area of fault rests in the way the Council dealt with Mr X’s attempt to complain in August 2018. I accept the manager gave cogent reasons why the Council would not pursue a complaint into the matters raised by Mr X. But the oral explanation should have been put in writing to Mr X. The various strands of Mr X’s complaint required clarification if only to address Mr X’s sense of grievance that he was not being listened to. I find fault here by the Council but it is very much a fine judgement on balance.
  9. And the injustice to Mr X because the social worker included a written agreement? I do not find Mr X suffered significant injustice through the inclusion of the written agreement.
  10. Mr X’s former partner had already restricted contact between Mr X and his children before the social worker drafted the agreement. Mr X was aware of his legal rights to see his children as set out in the court order and so could take legal action against his former partner to enforce his rights. The written agreement did not trump Mr X’s rights and I note the agreement stated in bold that it was not a legally binding agreement. There is nothing therefore that would lead me to conclude Mr X was denied access to his children solely because of the written agreement.
  11. Mr X claims an injustice because of the sums he spent on legal costs. But I do not consider these costs arose because of fault by the Council. Mr X and his former partner have been involved in allegations and counter allegations over their children for many years with accompanying legal proceedings over custody of the children and contact arrangements for Mr X. I do not consider the Council should now reimburse Mr X’s legal costs.
  12. I do not find Mr X suffered significant injustice because the Council did not have a joint discussion meeting with the Police before it closed the November 2017 section 47 enquiry. This is a procedural failing that does not have a direct impact on Mr X.
  13. I also do not find Mr X suffered significant injustice because the Council did not respond to his complaint(s) in writing or initiate its complaints procedure. Given my finding of no significant injustice on the substantive matter of the complaint, it follows that this failing on an ancillary point does not cause significant injustice.
  14. That Mr X’s former partner included the November/December 2017 assessment document within the private legal proceedings between her and Mr X was a decision for her to make and does not involve fault by the Council. That Mr X is now upset about the use of the assessment by his former partner; the content of the assessment; the perceived implication of the assessment during those proceedings; or the findings made by the courts are matters which cannot now be considered by the Ombudsman. There is a clear bar on the Ombudsman’s investigation of what happened in a court.

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Final decision

  1. I found fault by the Council but closed this complaint because the identified faults did not cause Mr X significant injustice to warrant further pursuit of the matter by the Ombudsman.

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Investigator's decision on behalf of the Ombudsman

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