Decision : Upheld
Decision date : 29 Aug 2019
The Ombudsman's final decision:
Summary: The Council was not at fault for most of the actions it took to investigate concerns about the safety of Mr B’s children. However, it was at fault for failing to explain to Mr B that the contact restrictions it put in place during its investigation were voluntary, because they were not supported by a court order. Mr B suffered injustice in the form of uncertainty; however, his injustice was limited because the Council’s failure did not actually affect his contact with his children. The Council has agreed to apologise to Mr B, and to take action to improve its practice in future.
- The complainant, whom I refer to as Mr B, complains that the Council (while investigating allegations that his children may have been sexually abused) put restrictions on where he lived and on his contact with his children. He says the Council had no power to put such restrictions in place and did not make clear that the restrictions were voluntary.
- Mr B says the Council, at first, only engaged with his wife, and not him. He says it did not speak to him until after it had held a strategy meeting, by which point it had already decided that he could not see his children unsupervised.
- Mr B says the measures the Council took during its investigation were ‘draconian’, and there was no need for him to leave the family home or to be supervised during contact with his children.
- Mr B says a consultant paediatrician told the Council (in a strategy meeting) that there was no need for further medical tests of the children. However, he says the Council ignored this medical advice and made a referral for a child sexual abuse examination, which caused delays to the investigation.
- Mr B says the Council did not take account of his wife’s mental health issues when conducting its investigation. He says his wife’s difficulties affected the reliability of her allegations.
- Mr B says the Council should have dealt with his complaint under the Children Act 1989 representations procedure, but failed to do so.
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)
- 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 considered information from Mr B and the Council. I wrote to Mr B and the Council with my draft decision and considered their comments.
What I found
- I have considered each part of Mr B’s complaint in turn.
The Council should have considered Mr B’s complaint under the Children Act 1989 representations procedure
- Section 26 of the Children Act 1989 says the children’s statutory representations procedure should cover functions under part 3 of the Act. Part 3 is sections 16B to 30A.
- Section 47 – which covers councils’ duty to investigate child protection concerns – is in part 5 of the Act.
- Section 26 also says the Secretary of State should issue regulations which set out which sections in parts 4 and 5 of the Act should also be covered by the children’s representations procedure.
- These regulations are the Children Act 1989 Representations Procedure (England) Regulations 2006. Regulation 3 sets out which sections in parts 4 and 5 of the Act must be covered by the procedure. It does not include section 47.
- As a result, councils do not have to consider child protection complaints under the statutory representations procedure. This means the Council was not at fault for considering Mr B’s complaint under its corporate procedure.
The Council did not speak to Mr B until after a strategy meeting (despite speaking to his wife beforehand), and had predetermined his contact arrangements with his children
What should have happened?
- Section 47 of the Children Act 1989 says councils must make enquiries when they suspect a child is suffering (or may be suffering) significant harm.
- The Council’s regional safeguarding procedures say that one of the purposes of a strategy meeting is to agree “who should be interviewed, by whom, for what purpose and when”.
- On 22 April 2018 – having received a safeguarding referral from a local hospital – a Council social worker visited Mr B’s wife and listened to her allegations (which were that her children may have been sexually abused). The social worker asked her to tell Mr B about the Council’s involvement, as it would want to speak to him.
- Two days later the Council held a strategy discussion with the Police. The Council decided that there would be a joint child protection enquiry (with the Police), and that it would hold a further strategy meeting with a paediatrician to decide if a further medical examination was needed.
- On the same day the Council and the Police visited Mr B’s family home. They saw both Mr B and his wife. The Council asked Mr B if he knew why it was visiting, and he replied, “because of the trip to the hospital”. The Council and the Police invited Mr B’s wife and their children to a Council office to be interviewed. They did not invite Mr B.
- The following day the Council held another strategy meeting – this time with the Police and a consultant paediatrician. The Council then visited Mr B and interviewed him.
- During this interview Mr B said he did not, in fact, know the reason for the joint visit the day before, and was “astonished” to hear of his wife’s allegations. The Council provided him with an information pack about child protection investigations.
- Mr B’s complaint is that the Council did not talk to him until after the strategy meeting, whereas it talked to his wife the day before. He says it had already decided to restrict his contact with his children when it visited him.
- This is true to a certain extent – the Council interviewed Mr B’s wife before the second strategy meeting, and did not interview him until after. However, it did speak to him before the meeting and let him know the purpose of the visit.
- The Council’s regional safeguarding procedures make clear that one of the purposes of a strategy meeting is to agree who should be interviewed, and when. This means the guidance clearly envisages a need, at least in some circumstances, to plan these interviews in advance.
- The Council was not at fault for doing this, and there does not appear to have been any clear need to interview Mr B before the second strategy meeting took place.
- Although Mr B complains that his wife was interviewed before the second strategy meeting, I do not see how this can be considered maladministration. As above, the Council was not at fault for interviewing Mr B after the strategy meeting. Given that it was Mr B’s wife who had made the allegations, it does not seem illogical that she would be interviewed first, so the Council and the Police could find out exactly what the allegations were.
- There was no requirement to interview Mr B and his wife at the same time, and the Council did speak to him the day before the strategy meeting (albeit to a limited extent) to explain what was going on. He only had to wait a day before being interviewed himself.
- If a council believes that a plan should be put in place as an interim measure to secure a child’s safety, then it can form the plan without hesitation. It appears that, as Mr B claims, the Council had already decided it should seek his agreement to leave the family home – and to only see the children when supervised – before it went to interview him.
- At that point (and as a result of the recent allegations) there were concerns for the safety of the children. The Council was not at fault for immediately taking what it considered to be appropriate action to ensure the children’s safety.
- Although Mr B appears to be suggesting that the Council’s actions show that it always intended to favour his wife’s account over his, there is no evidence in the Council’s records to show that it pre-supposed the allegations would be substantiated.
- As a result, I have found no fault with the Council.
The Council referred Mr B’s children for further medical examinations, against the advice of a consultant paediatrician, which caused delays to its investigation
What should have happened?
- The Council’s regional safeguarding procedures say a multi-agency assessment is the means by which section 47 enquiries are carried out. They say the outcome of a section 47 enquiry should inform the assessment, and the assessment must be completed within 45 working days of the date when the Council first became aware of the child protection concerns.
- The procedures say councils must hold a strategy meeting within three days of first becoming aware of child protection concerns.
- They say relevant matters in a strategy meeting include agreeing how an assessment will be carried out – such as what further information is required about the child and family, and how this information should be obtained and recorded.
- They say that, where issues have significant medical implications, or a paediatric examination has taken place or may be necessary, a paediatrician should always be included in a strategy meeting. They say the strategy meeting will determine, in consultation with the paediatrician, the need and timing for a paediatric assessment.
- They say a paediatric assessment is necessary to secure forensic evidence, obtain medical documentation, provide reassurance for parent(s) and children’s services, and inform future action.
- On 22 April 2018 Mr B’s children had medical examinations at their local hospital. These were not child protection medicals, and did not conclude that the children had or had not experienced sexual abuse. However, there was some bruising noted to Mr B’s daughter’s genitals.
- The Council held a strategy meeting with the Police on 24 April, and then held a further meeting with a consultant paediatrician the following day.
- During this second meeting, the paediatrician said a medical examination had taken place so there was no need for further examination. The Council noted that the doctor at the hospital had suggested a child protection medical may be necessary as the children has not been fully examined. The paediatrician said a sexual abuse assessment may be more relevant if there were concerns that the children had been sexually abused. The Council said that this was the concern.
- The paediatrician said a local sexual assault referral centre would be the best place to conduct a sexual abuse assessment. The Council said the strategy meeting was being held to decide if such a referral should be made.
- The paediatrician said there would be no value in a further examination being carried out by the hospital, and said a sexual abuse assessment should be carried out, not a child protection medical.
- The Council recorded that there appeared to be some confusion in the meeting about what kind of medical examination was being discussed. However, it also recorded that all professionals were in agreement about the referral to sexual assault referral centre.
- The Council sent these referrals the same day.
- The children’s sexual abuse examinations were completed on 8 May, and the doctor who conducted the examinations said she had no immediate concerns, but her findings would be peer-reviewed before her report was released.
- The Council’s records show that it did not receive the examination reports until 29 or 30 May. It met Mr B on 31 May to share the findings (which were that there was no conclusive evidence of sexual abuse).
- The Council completed its section 47 investigation on 8 June, and recommended no further action, as the concerns had not been substantiated.
- On 14 June 2018 the Police told the Council that it would be closing its investigation, because it had no evidence with which to proceed.
- The Council completed its assessment on 25 June, and said it would be taking no further action.
- The strategy meeting minutes do suggest that the paediatrician did not agree with a further medical examination – at least at first.
- The paediatrician said more than once that a further medical examination was not required. But he also said a ‘sexual abuse assessment’ – which was, in effect, what the Council was considering – would be relevant, and agreed to a referral to the sexual assault referral centre.
- The decision to refer was the Council’s, not the paediatrician’s, although the Council should clearly have had regard to what he said and justified any action taken, particularly if ignoring medical advice.
- In this case the Council’s view was that there was some confusion about what was under consideration. The paediatrician’s view appears to have been that a medical examination had already taken place at the hospital, so there would be nothing to be gained by conducting a further examination. However, he also said a sexual abuse assessment at the sexual assault referral centre would be the most suitable course of action.
- The Council was clear that the referral under consideration would be for a sexual abuse examination, held at the sexual assault referral centre. The minutes say the paediatrician agreed to this referral.
- I can understand why, based on these minutes, Mr B thinks the Council acted against medical advice. However, I can also see that, despite being apparently against a ‘child protection medical’ at the local hospital, the paediatrician appears to have been in favour of the very thing the Council was considering – a sexual abuse examination at a sexual assault referral centre.
- As a result, I can see how the Council reached the conclusion it did. In my view, it properly explained why it made the referral, and its justification (the confusion about terminology) is supported by what the paediatrician said in the strategy meeting. Because of this, I have not found fault with the Council for proceeding with the referral.
- Mr B’s complaint also suggests that, because of the further medical examination, there were delays to the child protection enquiry.
- The Council received the initial referral on 22 April 2018, so it should have held a strategy meeting by 25 April – which it did. The Council’s assessment should have been completed within 45 working days of the referral, which was 26 June. The Council completed the assessment on 25 June.
- Although 45 working days is the maximum amount of time in which a Council can complete an assessment, it must still act without delay, and a significant period of delay within the 45 days could still be fault.
- Most of the Council’s time during the assessment period was spent waiting for the outcome of the sexual abuse examination, or waiting for an update from the Police. As I have said above, the Council was not at fault for referring the children for the examination. This means the waiting time was not the Council's fault.
- The Council did take seven working days from receiving the last piece of necessary information (from the Police) to completing its assessment. However, this was not a significant delay, and – despite having to spend several weeks waiting for information – the Council still completed the assessment within the required timescale.
- This means the Council was not responsible for any delay in its assessment, and therefore was not at fault.
The measures the Council took during its investigation were ‘draconian’, and there was no need for Mr B to leave the family home or to be supervised during contact with his children
- I have considered the procedure the Council followed (in seeking to place restrictions on Mr B) later in this decision statement. However, here I have also considered the nature of the restrictions.
- The Ombudsman has limited powers to question a decision based on professional opinion, unless we decide it was ‘unreasonable’ – that the decision was one which a ‘reasonable’ authority would not have made. The threshold for this is understandably high.
- The Council fully considered the evidence at hand, including from two multi-agency strategy meetings, and decided to enter an agreement with Mr B. This meant he agreed to leave the family home, and to be supervised when seeing his children, while the section 47 enquiry was ongoing.
- The Council is entitled to take whatever action it considers necessary to ensure a child’s safety (within the limitations of its powers, and as long as it can justify its actions). Interim agreements which involve a parent not seeing their child unsupervised are not uncommon, as they may mean a council can be more confident of a child’s safety without having to take more serious action (such as a holding a child protection conference or seeking a court order).
- Given that – at that point – the Council was yet to explore its concerns about the children’s safety, and given that the allegations concerned a period of time in which Mr B was in sole care of his children, I do not consider that the threshold is met at which I would view the Council’s actions as ‘unreasonable’.
- It is also worth noting that the Council did not stop Mr B’s contact with his children – his wife did. The Council actually went to efforts to arrange contact and supervise it. However, it could not tell his wife to agree contact. This was her choice, and there is no evidence that she made it under any influence from the Council.
- As a result, I have not found fault with the Council for the nature of the restrictions it sought to put in place for Mr B.
The Council had no power to put restrictions on Mr B’s contact with his children, and did not make clear that the restrictions were voluntary
What should have happened?
- In 2016, the Ombudsman completed an investigation into the Council’s use of informal contact restrictions (in a specific case). We found fault with the Council, and said the Council should:
… ensure that action is only taken to restrict contact between parents and children where it is supported by a formal application to the courts. Where formal action is considered unnecessary parents should be informed that any agreement to restrict contact is voluntary. The Council should keep clear records of any voluntary agreement on its file.
- On 22 April, the Council formed a safety plan with Mr B’s wife, which she signed. The plan said that she would not allow Mr B to have contact with their children unless that contact was supervised by the Council.
- Two days later, the Council recorded (during a supervision session between a social worker and team manager) that Mr B would be “asked to move out of the property whilst [the section] 47 is active.”
- The following day the Council visited Mr B. It recorded that it “shared the need for any contact between himself and the children … to be supervised whilst the investigations are ongoing”. There was no evidence in the Council’s records that it made clear to Mr B that this was a voluntary arrangement.
- Mr B signed a safety plan during the home visit. However, the plan was entirely about the conditions of the family home. There was nothing on it about contact restrictions placed on Mr B.
- Two days after this the Council carried out another home visit. Mr B agreed – verbally – that he would leave the family home that day so his wife and children could return.
- Mr B did not see his children again until June (after the Council had completed its investigation and assessment). However, this was Mr B’s wife’s decision. The Council made several attempts to arrange supervised contact between Mr B and his children, but without success.
- Mr B is correct that the Council has no powers to stop a parent living with or seeing their child, unless a court order is in place.
- However, councils frequently enter voluntary interim agreements with parents which place certain restrictions on their contact with their children. These agreements should be time-limited – usually while the council conducts an assessment – and, as the Ombudsman found in 2016, the council should write each agreement down and make sure the parent knows it is voluntary (while clearly setting out the consequences of breaching it).
- If a council fails to make clear that such an agreement is voluntary, and simply imposes contact restrictions on a parent (without a court order), then it would be acting beyond its powers, which would be maladministration.
- Mr B says the Council did not keep a record of the agreement, and did not tell him his contact restrictions were voluntary. Given that I have not seen any written record of the agreement, or evidence that the Council told him this, I have found (on the balance of probabilities) that the Council was at fault.
- Mr B experienced uncertainty because he was not made fully aware of his rights. However, in my view this was the limit of his injustice.
- If Mr B had refused to sign a voluntary agreement, the Council may still have needed to take action to ensure his children’s safety. This could have meant a child protection conference, or court action, either of which would – almost certainly – have been much more inconvenient and distressing to Mr B and to his children.
- Of course, I cannot say with any certainty what action the Council would have taken had Mr B refused to comply with the contact restrictions. However, I can say that Mr B’s wife had signed her own agreement and had shown no intention of breaching it. In fact, she denied Mr B contact with his children for the duration of the Council’s assessment. I have seen nothing to suggest that this would have changed, even if the Council had not been at fault.
- As a result, I do not believe that the Council’s failure on this point caused any injustice to Mr B beyond uncertainty. An apology will be a satisfactory personal remedy.
- However – given the Ombudsman’s previous finding of fault on this issue – the Council must take action to ensure that its practice changes. It must ensure its social work staff record parental agreements in writing and fully explain the rights of all parties (and the potential consequences of failing to keep to an agreement).
The Council did not take account of Mr B’s wife’s mental health issues when conducting its investigation
- I have investigated this complaint because Mr B has parental responsibility for his children, and therefore I consider him able to make a complaint about how the Council exercised its functions under the Children Act (even though the subject of the complaint is excluded from the statutory representations procedure).
- However, this matter entirely concerns personal information about Mr B’s wife. They are now separated, and – although I have access to their children’s social care records, with Mr B’s consent – I do not have his wife’s consent to share her information with him.
- As a result, although I have fully investigated this matter, I cannot disclose most of the details of my investigation.
- The Council’s regional safeguarding procedures say a social work manager must approve each assessment and ensure the background history, parenting skills and capacity of a child’s parents have been considered.
- Having reviewed the Council’s records, I disagree with what Mr B has said in this complaint. There are a significant number of examples of the Council considering parental capacity and background history as part of its investigation.
- It appears that Mr B is suggesting that his wife had mental health issues, and that the Council should have interpreted her allegations in the context of these issues from the beginning (and changed the approach of its investigation accordingly).
- However, even if a council suspects a referrer may have mental health (or other) issues, it does not necessarily mean the referral is unreliable. It is up to any council which receives a referral to assess each case on its own merits.
- I am satisfied that this is what the Council did, and I have seen no evidence that it failed to take any relevant information into account. As a result, I have not found fault with the Council on this point.
- The Council has agreed to apologise to Mr B for failing to advise him that, when it suggested restrictions on his contact with his children during a child protection investigation, these restrictions were voluntary (in the absence of a court order).
- The Council has agreed to summarise and share the findings of this decision statement with its social work staff. It has agreed to remind them to record parental agreements in writing, and – if they are not supported by a court order – to fully explain to parents that the agreements are voluntary.
- These actions should be completed within six weeks of the date of this decision statement.
- The Council was not at fault for most of the actions it took to investigate concerns about the safety of Mr B’s children. However, it was at fault for failing to explain to Mr B that the contact restrictions it put in place during its investigation were voluntary, because they were not supported by a court order. The agreed actions remedy Mr B’s injustice.
Investigator's decision on behalf of the Ombudsman