Summary: Miss J complained the Council failed to offer her appropriate support when she tried to contest adoption proceedings about her children. The substantive issues have been to court, which puts them outside of the Ombudsman’s jurisdiction while other issues could have been raised in court. The Council is not at fault for Miss J being unable to obtain Legal Aid.

The complaint

1. The complainant, whom I shall call Miss J, says the Council failed to give her sufficient support once it achieved a care order and then asked the court for an adoption order for her children. She made three complaints to the Council:
1. That she was not given support and actively hindered in her right to access the complaints procedure, despite repeated attempts by herself and family members to make a formal complaint after the care order was made;
2. That children’s services did not ensure her parental rights to due process in contesting and opposing the adoption applications because of a lack of appropriate advocacy and access to legal advice; and,
3. Children’s services failed in their duty of care to her as a vulnerable parent during the adoption proceedings in part because of an officer’s discriminatory attitude and actions.
2. Miss J did not think the Council had properly investigated these issues and asked the Ombudsman to consider them. She also asked the Ombudsman to consider the remedy the Council had already proposed.

Back to top

What I have investigated

3. I have considered Miss J’s complaints although I have not considered the remedy provided by the Council when it investigated. I explain why I have not done so at the end of this Statement.

Back to top

The Ombudsman’s role and powers

4. 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)
5. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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)) In this case, the substantive matters are the court matters.
9. 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)

Back to top

How I considered this complaint

10. I considered the information submitted by the Council and by Miss J’s advocate. I sent the Council and Miss J a copy of my draft decision and took the comments they made into account before issuing a decision.

Back to top

What I found

That Miss J was not given support and actively hindered in her right to access the complaints procedure, despite repeated attempts by herself and family members to make a formal complaint after the care order was made

11. Care orders are matters for the court as it is only the court that can decide where children live and with whom. Once they have been granted, the only way to challenge them is by going back to court. Although the complaints procedure may have addressed problems Miss J experienced with the Council leading up to the hearing; this would not change the need for her to go to court. There is no worthwhile outcome achievable by investigating this further.
12. This complaint was upheld at Stage Two of the Council’s complaints procedure. The investigating officer said the Council should have considered, at an earlier stage, whether the complaints Miss J was making could be looked at through the statutory (children’s) complaints procedures (although child protection matters do not fall under the statutory process). We cannot look at the complaints process where we cannot address the substantive matters complained of. The substantive matters, here, are the court matters in relation to the adoption of Miss J’s children, which are out of jurisdiction as explained above.
13. Miss J’s advocate says Miss J was not just speaking with the Council about the court but also ‘about visitations and parenting assessments, contact for other family members and her children’s situation in foster care’. These are all related to the care or adoption orders. If Miss J (or her family members) did not agree with the Council’s plans for contact, following a care order, she would have needed to go back to court.
14. Miss J’s advocate also says the Council discriminated against Miss J. That allegation is a matter for the court.
15. Because the substantive matters are court matters; I am not exercising discretion to investigate this complaint.

That children’s services did not ensure her parental rights to due process in contesting and opposing the adoption applications because of a lack of appropriate advocacy and access to legal advice

16. The focus for children’s services, in adoption applications, is the child and not the parent. Miss J was advised to seek legal advice. She was unable to find someone to act for her. This was not due to Council fault.
17. Miss J received a leaflet on Civil Legal Advice (CLA), which she says came too late to be of use. As Miss J had not found a solicitor under legal aid, and CLA is part of legal aid, she may not have been able to use this service. The Council’s letter to her following the Stage Two complaint investigation acknowledged other sources of advice such as the court and the Child and Family Court Advisory and Support Service (CAFCASS).
18. The Council said, at Stage Two, it could have provided Miss J with more advocacy support. However, as well as the sources of information I have highlighted above, Miss J could have chosen to employ a solicitor even if only to go through the paperwork with her rather than to accompany her to court. If the court ordered the Council to provide advocacy, and it didn’t do so to the extent Miss J wanted, the court should have been told. Because the amount of advocacy could have been remedied in court at the time, I am not investigating.
19. Miss J’s advocate referred to 2007 good practice guidance on working with parents with a disability. This highlights; ‘Independent advocacy should always be provided where children are the subject of a child protection plan and/or care proceedings are instituted so that the parents can participate fully and effectively in the proceedings, as is their legal right’. Miss J is not complaining about help through care proceedings – she is complaining about support through adoption hearings.

Children’s services failed in their duty of care to her as a vulnerable parent during the adoption proceedings in part because of an officer’s discriminatory attitude and actions

20. At the point the Council was seeking an adoption order, children’s services did not have a duty of care to Miss J. The Council was able to exercise parental responsibility for the children above Miss J’s parental responsibility and had to act for the children.
21. Miss J says that information about her sent to the court by a named officer was incorrect. This information could have been challenged in court.
22. If Miss J felt she was not being supported and the Council was not meeting its duty of care, she was able to tell the court. It could decide what action to take. This was her opportunity for remedy.
23. The substantive matter, here, is what was being discussed in court. The court proceedings are outside of the Ombudsman’s jurisdiction so I cannot consider the action by the Council.

Remedy

24. I have not investigated this part of Miss J’s complaint.

Back to top

Final decision

25. There is no evidence of Council fault. I have completed my investigation and closed the complaint.

Back to top

Parts of the complaint I have not investigated

26. I have not investigated the remedy proposed by the Council because I have not found fault in what I have investigated and much of the complaint, for which the Council proposed a remedy, is outside the Ombudsman’s jurisdiction or relates to matters that could have been presented to the court.

Back to top

Investigator's decision on behalf of the Ombudsman