Summary: Mr X complains that the Council took his children to their maternal grandmother’s home in breach of a court order. He also complains that there were delays in the Council’s handling of his complaint. He says this caused him stress and depression, and cost him legal fees and time off work. He says it also caused a breakdown in the family relationship. A court has already decided there was no breach of the court order, so the Ombudsman cannot look at this part of Mr X’s complaint. The Ombudsman finds fault with the Council for failing to act on a part of the Investigating Officer’s recommendations, for failing to send a letter within the timescale the Council set out, and for delays in handling Mr X’s complaint. The Ombudsman is satisfied with the action the Council has taken so far to remedy the injustice, but the Council will also apologise to Mr X for the delay in sending the letter.

The complaint

1. The complainant, who I refer to here as Mr X, complains that:
1. the Council took both of his daughters to their maternal grandmother’s home in breach of a court order which prevented her from having contact with the children; and,
2. there were delays in the Council’s handling of his complaint.
2. Mr X says he spent money on legal advice about how to enforce the Child Arrangement Order. He says it caused him depression and stress, and meant he had to have time off work. He also says it resulted in a breakdown of the family’s relationship.

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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 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

9. I spoke to Mr X about his complaint. I considered the information and documents provided by Mr X and the Council. Both Mr X and the Council had an opportunity to comment on an earlier draft of this decision. I took all comments received into account before making my final decision.
10. I considered relevant legislation and statutory guidance, set out below.

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What I found

Legal and administrative background

Child Arrangement Orders

11. Courts can make Child Arrangement Orders under section 8 of the Children Act 1989. These orders regulate arrangements for who a child will live with and have contact with, and when.
12. The law says that certain people must comply with a Child Arrangement Order. These people are: anyone named in the order who lives with the child or spends time with them; the child’s parent; anyone with parental responsibility; and anyone who the order says conditions apply to.
13. If someone believes there has been a breach of a Child Arrangement Order, they can apply to the Family Court to enforce the order. This is private legal action.
14. The law says the only people who can apply to the court to enforce an order are the person the child is supposed to be living with, a person named in the order, or the child themselves. A council cannot apply to enforce a Child Arrangement Order.

Complaints

15. The government published statutory guidance, ‘Getting the Best from Complaints’, which sets out a three-stage procedure that councils follow when considering certain complaints about children’s social care services.
16. At stage two of the procedure, the council appoints an independent Investigating Officer to investigate the complaint, and an Independent Person who is responsible for overseeing the investigation. The council will appoint a senior manager to adjudicate on the findings.
17. The guidance says the Investigating Officer “may be employed by the local authority or brought in from outside the authority” but should not be in direct line management of the service or person complained about.
18. The guidance sets out timescales within which certain actions should be completed. It says that a council has 25 working days to produce the Investigating Officer’s report and its own adjudication on the Investigating Officer’s findings.
19. The guidance says this can be extended to 65 working days because in certain circumstances 25 days may not be sufficient or practical. It says this includes complaints that involve several agencies.
20. The complainant may request that the council convenes an independent review panel. This forms the third stage of the procedure. The review panel will consider the adequacy of the independent investigation and will decide whether the complainant’s desired outcomes have been addressed.
21. The guidance says a council has 30 working days to arrange and hold the stage three review panel.
22. If a council has investigated something under this statutory procedure, the Ombudsman does not normally re-investigate the original complaints unless he considers that the investigation was flawed. Instead, he will look at whether a council properly considered the findings and recommendations of the independent investigation and review panel.

Key events

23. Mr X has two daughters, Q and R, with his ex-partner, Ms Y. In 2014, the Family Court granted a Child Arrangement Order for both children. This order said that the children would live with Mr X from Monday to Friday, and spend time with Ms Y on alternate weekends and each Wednesday.
24. The order said, “for the avoidance of doubt, the Maternal Grandmother [Mrs Z] will not be present during the time the children spend with the Mother [Ms Y]”.
25. By summer 2017, both children were placed on Child in Need plans.
26. In early August 2017, there was an incident between Mr X and Ms Y at her address. R was present. Police and a social worker went to Ms Y’s address. The decision was taken to remove R from the situation under Police Powers of Protection. R was taken to Mrs Z’s address. Q was already at Mrs Z’s address.
27. A few days later, a manager emailed Mr X saying that the Police Powers of Protection had expired. She said this meant that there was “nothing stopping” Mr X from taking the children back into his care, given that there was a Child Arrangement Order in place.
28. At the end of August, both children were put on Child Protection Plans.
29. At the end of October, Mr X took R back to live at his address.
30. The next day, Mr X applied to the Family Court to enforce the Child Arrangement Order.
31. In December, Mr X complained to the Council in writing. He handed his written complaint to two council officers, who signed to acknowledge receipt of the complaint.
32. Between January and March 2018, Mr X emailed the Council five times, chasing the Council for a response to his complaint.
33. At the end of March, Mr X’s application to enforce the Child Arrangement Order was heard in Family Court. His application was dismissed. The court found no breach of the order when the Council took the children to Mrs Z’s address.
34. The Court discharged the order made in 2014 and replaced it with a new one. The new order said that R would continue to live with Mr X, and Q would continue to live with Mrs Z.
35. In April and May, Mr X sent two more emails to the Council chasing a response to his complaint. In mid-May, the Council replied to Mr X saying it had no record of his complaint.
36. At the end of May, the Council emailed Mr X. It apologised for the delay, acknowledging that he submitted his complaint in December 2017. It said that it was obliged to progress his complaint to stage two of the complaints procedure because the Council did not send its response to his complaint within 20 working days.
37. At the end of June, Mr X sent another email chasing the Council for a response.
38. The Council met with Mr X a week later to discuss his complaint. Two days later, the Council appointed an Investigating Officer and an Independent Person.
39. Mr X met with the Investigating Officer in July. They agreed Mr X’s complaint in August. This included Mr X’s allegation that when his children were not brought home to him on the night of the incident in August 2017, this contradicted a court order.
40. The Investigating Officer submitted her report in September. She noted a delay in being able to interview staff due to limited availability during school holidays.
41. The Investigating Officer found that Q had been at Mrs Z’s address because she did not want to live with either of her parents. The Investigating Officer said that Police called the social work emergency team due to concerns for R’s safety at Ms Y’s address. The Police used their Police Powers of Protection to remove R from the situation for the night.
42. The Investigating Officer said that the Child Arrangement Order was granted under family proceedings (private law), and so the Council could not enforce this order.
43. The Investigating Officer said that records show the Council and Police made “pertinent decisions based on the presenting situation and took appropriate action to safeguard the children that evening”.
44. The Investigating Officer did not uphold Mr X’s complaint. However, she did find that his complaint was not responded to in line with the complaints procedure. She said his complaint was passed between teams and this added to his frustration.
45. The Investigating Officer made three recommendations. Firstly, she said a senior manager from Children’s Services should write to Mr X with the outcome of the investigation. The letter should include an apology for the delay in responding to the complaint and some reassurances that Q continued to have social work support. She said the letter should also include an explanation of when it’s appropriate to have a guardian.
46. Secondly, the Investigating Officer recommended that social work teams should make sure that where there are Child Arrangement Orders in place, families understand the difference between family law and the Council’s duties under the Children Act 1989.
47. Finally, she recommended that Children’s Services managers were reminded to alert the Consumer Relations Unit (CRU) to an incoming complaint. She said if Mr X’s complaint had been forwarded to CRU, a CRU officer would have been able to make sure the complaint was directed to the correct person to respond in a timely manner. She said there had been an “unacceptable delay” in the Council responding to Mr X’s complaint.
48. The Independent Person submitted her report the following day. She was satisfied that the Investigating Officer’s investigation was comprehensive, fair and impartial. She supported the Investigating Officer’s findings.
49. In October, the Council sent Mr X its stage two adjudication letter. The Council accepted the findings and recommendations of the Investigating Officer and the Independent Person.
50. The Council apologised for the delay in responding to Mr X’s initial complaint. It said it had put in place new processes to ensure it tracks and responds to complaints properly. It reassured Mr X that the social work team was still involved with Q.
51. About the Investigating Officer’s second recommendation, the Council said her findings would be shared with team managers and social workers.
52. About the third recommendation, the Council said the Investigating Officer’s findings had been shared with team and group managers.
53. In mid-October, Mr X asked the Council to deal with his complaint at stage three of the complaints procedure.
54. The stage three review panel was held in November. Mr X challenged the evidence used by the Investigating Officer. Mr X effectively said everyone had lied except him.
55. The Investigating Officer told the panel that there had been substantial records made at the time. She gave a detailed explanation of the evidence.
56. The panel was satisfied that the Investigating Officer had properly investigated Mr X’s complaint, and her report was thorough and detailed. It was also satisfied that the Investigating Officer’s findings and recommendations were “a fair conclusion”.
57. The panel noted that the Council had accepted all of the Investigating Officer’s findings and recommendations. The panel felt it could not offer anything further.
58. The panel accepted that the Council’s decisions were in the best interests of the children.
59. The panel asked the Council to reassure Mr X that any future child protection concerns he raised would be dealt with as a matter of urgency.
60. The Council wrote to Mr X a week after the panel was held, in late-November. It explained what happened at the stage three review panel. It said the relevant Director would write to Mr X within 15 days to say if she accepted the panel’s findings and outline her reasons if she disagreed.
61. At the end of January 2019, the Director sent Mr X her response to the stage three review panel’s findings. She said she accepted the panel’s findings in full. She reassured Mr X that the Council would respond to any future child protection concerns he raised.

Analysis

Council breached a court order

62. Mr X complains that the Council took both of his children to their maternal grandmother’s (Mrs Z) home in breach of a Child Arrangement Order which prevented her from having contact with the children (part a of the complaint).
63. Ultimately, Mr X says the Council should not have put Q and R into Mrs Z’s care. Mr X applied to the Family Court to enforce the Child Arrangement Order. The Court did not agree that there had been a breach of the order.
64. As I have said in paragraph seven, the Ombudsman cannot look at what happened in court. The Court’s decision is final, and it decided that the Council did not breach the order when it took Q and R to Mrs Z’s address. For this reason, I cannot investigate this part of Mr X’s complaint.

Did the Council properly consider the findings and recommendations?

65. As I have said in paragraph 22, if a council has investigated a complaint under the statutory procedure, the Ombudsman does not normally re-investigate the original complaints unless he considers that the investigation was flawed. Instead, he will look at whether a council properly considered the findings and recommendations of the independent investigation and review panel.
66. I have considered all the information available to me and I find the investigation was carried out in line with guidance. The Investigating Officer agreed a statement of complaint with Mr X and confirmed his desired outcomes. The investigation took account of evidence from a relevant range of sources, and addressed each of Mr X’s complaints in detail. The report shows the Investigating Officer weighed the evidence and drew logical and objective conclusions from it. The investigation was overseen by an Independent Person who was content with the conclusions and outcomes.
67. For these reasons, I do not find any evidence that the Investigating Officer’s investigation was flawed. Because of this, I have not re-investigated Mr X’s complaint. Instead, I have considered whether the Council properly considered the findings and recommendations of the independent investigation (stage two) and review panel (stage three).
68. The Investigating Officer made three recommendations. The Council’s stage two adjudication letter (October 2018) and further letter (January 2019) met the majority of these recommendations. However, the Council did not explain to Mr X when having a guardian would be appropriate, as the Investigating Officer recommended (see paragraph 45).
69. The Council accepts that it did not do this and says this was due to “human error”. I find fault with the Council for this oversight. However, I do not find that this fault caused Mr X injustice because this information was not relevant to any court or other proceedings that have happened since then. Also, I do not find that Mr X was disadvantaged by the Council not explaining this to him. Mr X now has the Council’s explanation.
70. The review panel did not make any recommendations as such, but did ask the Council to reassure Mr X that any future child protection issues he raised would be dealt with as a matter of urgency. The Council did this in its letter to Mr X in January 2019.
71. In November 2018, the Council wrote to Mr X after the stage three review panel. It said the relevant Director would write to Mr X within 15 days (paragraph 59).
72. The Council failed to do this within the timescale it set out. The letter was sent 38 working days later, in January 2019. The Council says it is unclear why there was a delay in the letter being produced and sent to Mr X.
73. I find that this is fault. This caused Mr X injustice because he had to wait for the Council to do something it said it was going to do.

“Fake” information used in the investigation

74. Mr X says the police report seen by the Investigating Officer, which said he was “making trouble”, was “fake”. This part of Mr X’s complaint was addressed in the stage three review panel. As I have said above, I will not re-investigate Mr X’s original complaint.
75. However, I will say that I have seen no evidence to suggest that the information considered by the Investigating Officer was misleading or false.

Independence of the Investigating Officer and Independent Person

76. Mr X challenges the independence of the Investigating Officer and Independent Person. He says when they went into the Council office, everyone greeted the Investigating Officer and Independent Person by their first names.
77. The Council says it has a pool of investigating officers and independent people that it contracts to investigate complaints. It says that neither the Investigating Officer nor the Independent Person are Council employees. It also confirms that that the Independent Person never worked for the Council before taking up this role.
78. As I have said in paragraph 17, the guidance says the Investigating Officer “may be employed by the local authority or brought in from outside the authority”, but should not be in direct line management of the service or person the complaint is about.
79. I find that the Independent Person and the Investigating Officer were appointed in line with the guidance. There is no evidence to support Mr X’s claim that these officers were not independent. I do not find fault with the Council here.

Delays in complaint handling

80. Mr X complains that there were delays in the Council’s handling of his complaint (part b of the complaint).
81. Mr X complained in writing in December 2017. He handed this complaint to two council officers who signed to acknowledge receipt of the complaint.
82. Mr X then spent five months chasing the Council for a response. In May 2018, the Council said it had no record of his complaint. In the Council’s acknowledgement of his complaint in May, it said his complaint would be immediately dealt with at stage two. The Council bypassed stage one because it had not responded to his complaint within 20 working days.
83. The guidance sets out timescales for certain actions to be completed by councils when dealing with complaints about children’s social care services (see paragraphs 18, 19 and 21).
84. From the date Mr X made his complaint (December 2017) to the end of stage two of the process (October 2018) was 197 working days. This is considerably more than the maximum 65 working days set out in the guidance for a stage two investigation.
85. From the date the Council acknowledged his complaint (May 2018) to the end of stage two was 92 working days. Again, this is considerably more than the maximum set out in the guidance.
86. It appears that even once the Council started the complaints process at stage two, it still did not adhere to the timescales set out in the guidance. For this reason, I find fault with the Council. This fault caused Mr X injustice because of the length of time he had to wait for the Council to respond to his complaint.
87. The Investigating Officer found that there had been “unacceptable delays” in responding to Mr X’s complaint. She made a specific recommendation about this (paragraph 47).
88. The Council acted on this recommendation by apologising to Mr X and putting a place a new process to make sure complaints are tracked and responded to properly (paragraph 50).
89. The review panel was held 30 working days after Mr X requested it. This is in line with the guidance, so I do not find fault here.

Agreed action

90. Within four weeks of this decision, the Council has agreed to apologise to Mr X in writing for failing to send the Director’s response to the stage three panel’s findings within the timescale it set out (see paragraphs 71 to 73).
91. The Ombudsman will need to see evidence that this has been completed.
92. I find that the delays in handling Mr X’s complaint caused injustice to him. I am satisfied that the Council’s apology and the steps it took to improve complaint handling are suitable remedies for this injustice.

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Final decision

93. I have completed my investigation. I cannot investigate the part of Mr X’s complaint that the Council breached a court order by taking his children to their maternal grandmother’s home. This is because a court has already decided this, and the Ombudsman cannot look at what happened in court (see paragraph seven).
94. However, I have investigated whether the Council properly considered the findings and recommendations of the independent investigation and review panel.
95. I find fault with the Council for the reasons given in paragraphs 68, 69, 72, 73, 84, 85 and 86. I am satisfied that the action the Council has taken so far has remedied most of the injustice caused by the fault. However, the Council has agreed to take further action to remedy the remaining injustice.

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Investigator's decision on behalf of the Ombudsman