Summary: Mr X complains about the Council’s handling of child protection enquiries and about the actions of his social worker. He also complains the Council misgendered him by using incorrect pronouns and that it used his birth name in paperwork. The Ombudsman finds fault with the Council for using Mr X’s birth name and female pronouns. We do not find fault with the Council’s handling of the child protection enquiries or with the actions of the social worker. We have made some recommendations.

The complaint

1. Mr X complains about the actions of his social worker from August 2018 to March 2019. Mr X says:

• the Council did not complete a thorough investigation into the sexual abuse allegations made against his dad;
• the Council forced his dad to leave the family home after the allegations were made;
• the social worker did not listen to him and the information he provided;
• the social worker pressured him into saying things about his dad that were not true; and
• the social worker ignored medical evidence about his physical problems.

Mr X is transgender and complains the Council misgendered him by using incorrect pronouns and that the Council incorrectly used his birth name in paperwork.

2. Mr X is represented by his mother, Ms Y.

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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)

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How I considered this complaint

6. I spoke with Ms Y and considered the information she provided.
7. I made enquiries with the Council and considered the information it provided.
8. I sent a draft decision to Ms Y and the Council and considered their comments.

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What I found

The Children Act 1989 and Section 47 enquiries

9. Section 47 places a duty on councils to make enquiries to safeguard or promote a child’s welfare, where there is reasonable cause to suspect a child in its area is suffering or is likely to suffer significant harm.
10. Councils can consult anyone they consider necessary as part of their enquiries, to help them decide if they need to act to safeguard or promote a child’s welfare. They must consult with the child to ascertain their wishes and feelings.
11. The initial enquiries must establish the child’s situation and decide whether action is needed to protect the child.
12. When an initial assessment shows a child is suffering or is likely to suffer significant harm, the Council and the police must hold a strategy discussion. The purpose of this discussion is to decide if immediate safeguarding actions are needed and whether there is a need to make further enquiries under section 47 of the Children Act 1989.
13. The social worker should lead the strategy discussion. If the discussion concludes there is a need for further section 47 enquiries, they should agree and record the further actions, who is going to complete them and in what timescale.
14. If, following these enquiries, concerns of significant harm remain, the social worker should call an initial child protection conference.

Gender Recognition Act 2004

15. This legislation sets out how transgender people can change their legal gender. They must meet the requirements set out in this legislation.
16. The minimum age for legal gender recognition is 18.

Working together to Safeguard Children

17. This is statutory guidance and sets out a framework for local authorities to work together to safeguard and promote the welfare of local children, including identifying and responding to their needs. The guidance highlights the principles and parameters of a good assessment. It notes that high quality assessments are:

• child centered
• focused on action and outcomes for children
• holistic in approach, addressing the child’s needs within the family and any risks the child faces from within the wider community
• involve children, ensuring their voice is heard
• involve families
• identify risks to the safety and welfare of children
• build on strengths as well as identifying difficulties
• lead to action, including the provision of services

Background

18. Mr X has three siblings, B, C (female), and D (male). Mr X has a medical diagnosis of autism and attention deficit hyperactivity disorder (ADHD).

What happened

Social services intervention

19. In July 2018, the Council received a referral from the Emotional Wellbeing and Mental health service (EWMHS) in relation to C. Ms Y said she asked for the referral to be made. Following this referral, the Council decided to start a child and family assessment because of the concerns raised within the referral. Two social workers were allocated to work with the family.
20. The Council made enquiries with other agencies, such as the children’s doctor, school, and the police. The social worker also visited the family and spoke with Mr X’s parents. The Council spoke with Mr X and his siblings to gather their views on family life.
21. The Council considered the medical history of the children. It obtained a medical chronology from the children’s doctor. The medical history showed Mr X, B and C all had multiple reports of urinary tract infections (UTI) and other emotional and behavioural issues.
22. The child and family assessment noted the physical issues and behaviours the children presented suggested they had suffered sexual abuse. The Council were concerned the abuse had been perpetrated by a family member.
23. The records showed the social worker spoke with Ms Y about the concerns and she agreed the children’s behaviour was a sign of possible sexual abuse. The social worker also presented the concerns to Mr X’s father, Mr W, who also accepted the evidence suggested sexual abuse. Mr W denied he had ever sexually abused his children. Mr X’s parents did not provide any other explanations, other than potential medical reason, for the cause of their children’s behaviour.
24. In August 2018, Ms Y asked Mr W to leave the family home given the concerns of potential sexual abuse. The Council recorded Ms Y said she was convinced her children had been sexually abused. Ms Y said she did not say this. The Council also recorded Ms Y had told the social worker that because the family were isolated, she felt only Mr W could have been the perpetrator. Mr W agreed to leave.
25. The records showed it was not the social worker who asked for Mr W to leave the family home and there were no legal orders which prevented Mr W from returning home. However, it was noted social services supported Ms Y’s decision for Mr W to leave.
26. In September 2018, the Council held a strategy meeting with other professionals to discuss the case. The Council decided to hold an initial child protection conference (ICPC) to explore the concerns further.
27. The ICPC discussed all the information gathered by social services. The ICPC gave both Ms Y and Mr W the opportunity to put forward their views at the conference. The ICPC also considered the children’s views.
28. The ICPC decided to place all four children on child protection plans. It also stated Mr W should remain living outside of the home and for social care to assess and consider when it was safe for contact arrangements to be put in place.
29. In October 2018, the Council allocated a new social worker to the children. At the end of November 2018, the Council supervised a contact with Mr W and the children. The meeting was positive, and no concerns were raised about the contact.
30. Between October 2018 and December 2018, the social worker met with and spoke to Mr X on several occasions. The social worker recorded their conversations and noted Mr X’s feelings and wishes. For example, that he wanted to see his dad more and that the theory his dad had sexually abused them was wrong.
31. In December 2018, the Council held a child protection review conference. Both Ms Y and Mr W attended the conference and provided their views. Again, the Council gathered the children’s views and these were considered at the review conference. Mr X had provided feedback that he was unsure about whether the social worker was listening to what he had to say. The conference discussed the positive improvements that had been made since Mr W moved out of the family home.
32. The conference decided to keep the children on the child protection plans. One of the actions was for social services to increase the frequency of contact with Mr W.
33. In January 2019, Ms Y contacted the Council and stated she now did not believe My W had sexually abused her children.
34. Between January 2019 and April 2019, the Council continued to work with Mr X and the family.

Social care records

35. There are inconsistencies throughout the Council’s record of how Mr X is referred. The Council has accepted this. There are numerous occasions where Mr X’s birth name and female pronouns are used. The Council said it was confusing for the social workers at times because both parents frequently referred to Mr X by his birth name and used female pronouns.
36. The Council said Mr X’s name and gender had not been changed on the case management system. This meant his birth name and gender was automatically populated within records. The Council said it could not change its official records because Mr X had not provided evidence he had changed his name by deed poll.
37. The Council also said its system did not allow it to record a child, or adult, as transgender. There was also no mechanism to record a preferred name. The Council explained it had considered setting up two separate records but it was concerned this would create additional risk to information sharing and retrieval.
38. The Council accepted Mr X would have been caused significant distress at being referred to as female and seeing the use of his birth name. The Council said it was discussing options with its software supplier on how it can better record transgender people, and those in transition. The Council also said it would review its current training and development of relevant policies and procedures.

Analysis

Section 47 enquiries: sexual abuse investigation

39. The Council has a duty to make enquiries to safeguard or promote a child’s welfare where there is reasonable cause to suspect a child in its area is suffering, or is likely to suffer, significant harm.
40. In this case, Mr X’s family came to the attention of social services because of a referral made by EWMHS. Following assessment of the referral, the Council decided it needed to complete a child and family assessment to gather more information about the family.
41. The evidence shows the Council considered the views of the whole family, and ensured it sought the views of Mr X and the children when it completed the assessment. I can see the Council made appropriate enquiries with other agencies to gather information about the children.
42. It is clear the allegations of sexual abuse have come out of the evidence gathered during the child and family assessment. The evidence shows the Council was concerned about sexual abuse because of the medical history of the children and because of their behaviours. Further, when presented with the information, both Ms Y and Mr W agreed the evidence suggested sexual abuse. It is also noted Ms Y had told the Council several times she felt only Mr W could have been the perpetrator. Ms Y had this view until January 2019.
43. The Council decided to hold an initial child protection conference. I find no fault with the Council for taking this action. This is because the Council had a duty to safeguard the children because it suspected a child was suffering or was likely to suffer harm.
44. The evidence showed the conference considered all relevant information and explored the history of the family in depth. There is also evidence the Council gathered the views of the children, Ms Y, and Mr W. From the records of the discussion, it was clear the Council’s concern about Mr W being the perpetrator of sexual abuse was only a theory.
45. The Council was entitled to decide to place all the children on child protection plans. This is because the decision was made properly following consideration of all relevant information.
46. Given the above, I find no evidence of fault in how the Council completed its investigation into the allegations of sexual abuse. The Council followed the correct safeguarding processes as there was evidence to suggest the children were at risk of harm. Further, the records showed the Council continued to explore other reasons for the children’s behaviours. This was appropriate as it demonstrates the Council was open to other theories and was not fixated on one narrative.

Mr W leaving the family home

47. Mr X said the Council forced his dad to leave the family home. The evidence is clear it was Ms Y who asked Mr W to leave the family home following discussion of the evidence gathered by the Council and the implication the children had been sexually abused. The Council did not direct this action and did not ask Ms Y to do so. However, it is clear the Council did support Ms Y’s decision to ask Mr W to leave the family home.
48. It is possible Mr W felt pressured into leaving the family home because of the allegations the Council presented to him. However, this was a decision Mr W made. Further, it is not possible to know if the Council would have taken any action to make Mr W leave the home had he refused to.
49. Therefore, I do not find fault with the Council as it did not ask Mr W to leave the family home and there is no evidence to support the assertion the Council forced him out.

Actions of the social worker

50. It is clear Mr X is unhappy about how his social worker dealt with him. He provided feedback to the Council in December 2019 that he was not sure the social worker was listening to what he had to say. I do not seek to minimise Mr X’s feelings on this.
51. There is evidence which shows the social worker made several visits to Mr X to speak about his wishes and feelings. These were all recorded. Further, Mr X had expressed a wish to see his dad more often. Following the child protection conference review, the Council noted an action to increase the frequency of contact with Mr W. This shows the Council was listening to what Mr X wanted. Therefore, I cannot find fault with the Council.
52. The records show the social worker had been doubtful about whether Mr W had sexually abused his children. Given this, it seems unlikely, on balance, the social worker would have pressured Mr X into saying untrue things about his dad. Again, I do not seek to minimise how Mr X felt about the social worker. However, I must decide based on the evidence available. In this case, the records do not suggest the social worker tried to lead Mr X into saying untrue things about his father. Therefore, I cannot find fault with the Council.

Mr X said the social worker ignored medical evidence about his physical problems. The case records showed the Council did work with health professionals to gather information about Mr X’s medical history. I can see the Council got a detailed chronology of Mr X’s medical history which it considered during the child and family assessment. The ICPC also considered this information. As the Council has shown it considered Mr X’s medical history, I cannot find fault with its actions.

Use of birth name and wrong pronouns

53. The Council recognised Mr X’s self-definition as a male and was committed to addressing Mr X by his chosen name and to use male pronouns.
54. However, the evidence shows the Council was inconsistent with how it referred to Mr X within its records. There are several examples of records referring to Mr X with his birth name and using female pronouns. There are also examples where the Council has used Mr X’s birth name and chosen name, as well as female and male pronouns. This is confusing and shows a lack of understanding of Mr X’s gender identity.
55. The law is clear the minimum age for legal gender recognition is 18. The Council is right in stating it could not change Mr X’s name on its records because it did not have evidence Mr X had changed his name by deed poll. Further, there were also concerns about information being lost if Mr X’s name was changed on the official records. I agree this could have potentially caused more risk for Mr X. However, the Council did not explain this to Mr X and therefore he could not have known the reasons why the Council had to continue to use his birth name and female gender.
56. I also understand Mr X’s parents were using his birth name and female pronouns when speaking about him to the social worker. I accept it is possible the social worker used Mr X’s birth name and used female pronouns as they wanted to accurately capture what was being reported to them. However, the social worker could have been clearer that it was Mr X’s parents referring to Mr X using his birth name and female pronouns during discussions.
57. Mr X has been clear and consistent with the Council what gender he identifies with and what his chosen name is. There is no reason why the Council could not have been consistent within the free text sections of its records in referring to Mr X using his chosen name and male gender. Therefore, at this stage, I find fault with the Council.
58. The fault identified would have caused Mr X an injustice. This is because it was distressing for Mr X to see the Council use his birth name and female pronouns within his records. It would also have given him the impression the Council was not listening and did not accept his gender as male.
59. The Council said it was in talks with its software supplier to try and find a better way to record a transgender person’s chosen name and correct gender. It also said it would review its current training and development of relevant policies and procedures. This is appropriate as it shows the Council has learnt from the complaint and is willing to make changes.

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Agreed actions

60. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following.

• Write to Mr X and apologise for the inconsistent way he was referred to within records.

61. The Council should complete the above remedy within four weeks of the final decision

• Update the Ombudsman on its review of its training and development of relevant policies and procedures. The Council should provide evidence of any changes made to policies and procedures, or provide a SMART action plan which details what changes will be made and when the change will be made. If the Council does not identify any need for changes, it will explain its reasons why.

62. The Council should complete the above remedy within three months of the final decision.

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Final decision

63. I find fault with the Council for using Mr X’s birth name and female pronouns within its records. I do not find fault with how the Council investigated its concerns about sexual abuse or for the social worker’s actions. The Council has accepted my recommendations and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman