Buckinghamshire County Council (19 007 634)

Category : Children's care services > Child protection

Decision : Upheld

Decision date : 17 Mar 2020

The Ombudsman's final decision:

Summary: Ms X complains about the Council’s involvement in her family over child protection matters. The Ombudsman finds fault with how the Council communicated and provided support to Ms X. We have recommended the Council makes financial payment to Ms X.

The complaint

  1. The complainant whom I shall refer to as Ms X complains about the Council’s involvement in her family over child protection matters. Ms X says it has resulted in her being alienated from her children and incurring costs for court proceedings causing distress.

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What I have investigated

  1. I have investigated Ms X’s complaint about the alleged ‘section 20 agreement’ and considered the Council’s response to Ms X’s complaints. The final section of this statement contains my reason for not investigating Ms X’s concerns about Mr Y’s claims for child maintenance. I am also not investigating any concerns about where the children should live or the Child Arrangement Order (CAO).

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. 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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How I considered this complaint

  1. The complaint was reallocated to me to consider. I have read the papers submitted by Ms X and notes of the previous Investigator’s discussions with Ms X about the complaint. I considered the Council’s comments about the complaint and the supporting documents it provided. I have explained my draft decision to Ms X and the Council and considered the comments received.

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What I found

Statutory children’s complaints procedure

  1. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an investigating officer (IO) and an independent person (IP). The IP is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

Guidance on remedies

  1. The Ombudsman has published a guidance on remedies. It notes that we can recommend a financial payment as a symbolic payment to acknowledge the distress or difficulties complainants have been put through. It states that our remedies are not intended to be punitive and we do not award compensation in the way a court might.
  2. The Ombudsman can recommend a remedy for distress. However, the guidance is clear that it must be avoidable distress arising from fault. Our recommendation for a remedy needs to reflect all the circumstances, including the severity of the distress. The guidance sets out that a remedy payment for distress is often a moderate sum of between £100 and £300.

What happened

  1. Ms X and Mr Y lived in a different local authority area with their three children. Ms X and Mr Y separated, and Ms X moved into the Council’s area. Ms X and Mr Y had shared custody of the children under an informal arrangement. The other local authority advised the Council of its involvement with the family because of allegations of domestic violence.
  2. One child made an allegation against Ms X. The Council considered the allegation as the children partly lived with Ms X. The Council drew up a Child in Need (CIN) plan under Section 17 of the Children Act 1989. The plan focused on working with both parents to improve communications and interactions with the children. The plan was in place between November 2017 to April 2018.
  3. A child made a further allegation against Ms X in April 2018. This led to the Council carrying out a section 47 (S47) enquiry in May 2018. A S47 enquiry requires children’s services to investigate when they have ‘reasonable cause to suspect a child who lives, or is found in their area is suffering, or is likely to suffer, significant harm’.
  4. The care files noted the children did not want to stay with Ms X. So, a social worker looked to place the children either with Mr Y or in section 20 (S20) accommodation in foster placements while carrying out the S47 enquiry. Under S20 councils need to provide accommodation for children who do not have somewhere suitable to live. (Usually the parents must agree to the child being accommodated.)
  5. Ms X verbally agreed for the children go to live with Mr Y for a few weeks and signed a handwritten written agreement she drew up with Mr Y. The handwritten agreement referred to a S20 agreement. The S47 enquiry resulted in the children having a child protection plan.
  6. Ms X complained to the Council about its involvement with her family on 2 October 2018. The Complaints team considered Ms X’s complaint unclear and referred to contact arrangements with the children so discussed the concerns with her. The Council advised contact arrangements were a private matter between her and Mr Y and said it was not within the Council’s remit to force contact.
  7. Ms X added to her summary of complaint on 26 October 2018. The Council formally acknowledged Ms X’s complaint on 29 October 2018. Ms X complained:
    • Children’s services did not explain well their powers during the May 2018 visit and the S47 investigation. Ms X said officers did not advise of her right to seek legal advice before insisting she sign a document agreeing to the children staying with Mr Y. Ms X considered she was left with the impression her children would be removed, placed in foster care and her job in jeopardy if she did not sign a S20 agreement.
    • She agreed to the S20 agreement in May 2018 for the children to live with Mr Y on a voluntary basis. Ms X said she thought it would be a temporary period and it would be 50% care with Mr Y and contact with the children two days a week. This would increase to overnight stays soon.
    • This did not happen as a social worker failed to facilitate increased contact for her with the children. Ms X said she only saw her children occasionally since signing the agreement despite having shared custody. Ms X said a child protection conference (CPC) agreed the Council should provide support to both parents to enable them to work together for the mutual benefit of the children.
    • The Council did not advise her to seek legal advice about obtaining a CAO until July 2018.
    • Officers were late sharing reports for the CPC’s with her, so she had insufficient time to review and comment on them.
    • Arrangements for the Initial Child Protection Conference (ICPC) were inadequate. Ms X says she was told to arrive too early, could not meet chair before the meeting as agreed and there were no arrangements made to keep her apart from Mr Y.
    • A social worker made an insensitive comment about Mr Y while discussing Ms X’s view of what happened during their separation.
    • She had not been supported and the social worker did not return calls or answer emails. The Council did not carry out promised actions such monitoring visits to see the children.
    • The Council delayed in progressing her initial complaint. Ms X says she made the complaint on 2 October 2018, but the Council considered it 26 October 2018.
    • The Council delayed in forwarding the case onto the local authority where Mr Y lived due to the children living there.
    • The Council’s involvement affected the family and matters taken longer than she expected.
  8. The Council transferred the case to the local authority where Mr Y lived in December 2018 as the children remained living there. The children remain in contact with Ms X. The Council’s records note there have been occasions where the children have not wanted contact with Ms X.
  9. The Council responded to Ms X’s complaints at stage 1. Ms X was unhappy with the response and escalated her complaint to stage 2.

Stage 2 complaint

  1. The Council appointed an independent IO and IP to consider Ms X’s complaint. Regulations require a stage 2 investigation should be completed, and a response sent within 25 working days from the date the statement of complaint is agreed. This may be impractical in some cases due to the depth and complexity of the case. Where it is not possible to complete the investigation within 25 days, it may be extended to a maximum of 65 working days. The Council advised Ms X in March 2019 the investigating officers required an extension of time to investigate to May 2019.
  2. Ms X told the Council in May 2019 she was returning to court for a CAO as Mr Y was refusing to cooperate with the other local authority’s social services. Ms X said he would not return the children to her for overnight stays. Ms X asked the Council for the outcome of the stage 2 investigation. Ms X said she needed it for a judge to see Mr Y’s actions were causing parental alienation and so make an order to return her children to her.
  3. The stage 2 investigation was not completed within the statutory timescale of 65 days. It was noted in the stage 2 report the delay was due to the availability of staff, time taken to carry out interviews, the detail and complexities of the statement of complaint. It was also due to the mutual availability of the IO and IP.
  4. The Stage 2 made no finding the Council failed to explain the S20 process to Ms X. The IO noted a social worker explained to Ms X the S47 children protection enquiries needed to take place and the children did not feel safe staying with her. The notes say, ‘S 20 explained and the mother did not refuse at that time.’
  5. The Council did not enter a S20 agreement with Ms X. The social worker said the confusion arose as they talked about a S20 agreement when they could not contact Mr Y at first. This was because the children would need to go into foster placements if Mr Y was unavailable. The social worker accepted she should have explained the matter more to Ms X. This was that because they contacted Mr Y there was no need for a S20 if there was a written agreement the children could go to Mr Y.
  6. The IO considered the reference to a S20 agreement with Mr Y in the handwritten agreement was incorrect. This was because the section meant the parents were agreeing to their children living elsewhere, usually in foster care. The findings noted that while the IO considered the reference was incorrect ‘this by itself does not demonstrate the overall quality of the information sharing by the social workers’ but was undoubtedly unhelpful in the circumstances.
  7. The IO made no finding on the complaint Ms X felt her children would be removed if she did not sign the ‘S20 agreement’. The IO said the lack of detailed case recording made it difficult to know exactly what was explained and what Ms X understood going forward. The IO accepted that both parties had a different view of the same situation and it was not possible to reconcile the differences from the evidence available.
  8. However, the IO did uphold the following complaints;
    • A failure to advise Ms X of her right to seek legal advice.
    • A lack of support from the social worker and the Council failed to explain why it had not supported Ms X to achieve more regular child contact. It found Ms X asked the social worker to speak to Mr Y about contact but got no timely response.
    • The social worker refused to communicate with her via email but did so with Mr Y. The Council could not produce the policy which showed it could not communicate with her by email.
    • She did not receive the social work reports in enough time to review and comment on them. It found officers shared reports for the CPC’s at the last minute and arrangements for the ICPC were inadequate.
    • The Council failed to carry out the 6 weekly visits to see the children despite the August 2018 action plan saying it should.
    • The Council delayed transferring the case to the other local authority.
  9. The stage 2 investigation did not uphold Ms X’s concerns about an insensitive comment made about Mr Y. It did not uphold Ms X’s complaint there was a delay in processing her initial complaint.
  10. The investigation considered Ms X’s desired outcomes which were:
    • Not wanting another mother to go through what she had done. Ms X said she had lost precious moments of her children’s lives due to errors by the Council and the alienation caused between herself and her children.
    • An apology from the Council as the process had impacted on her and she wanted more contact with her children.
    • Children’s services to ensure both parents received an equitable service.
  11. The stage 2 investigation recommended the Council including making an apology to Ms X for the failings identified during the investigation. It said the Council should ensure officers are aware of its policy and procedures, upload key documents and prevent drift in cases. And the Council should ensure officers refer to the law when engaging with parents so the parent can seek the relevant independent legal advice as necessary.
  12. In the Council’s stage 2 adjudication letter in June 2019, it accepted the findings of the stage two investigation. It apologised to Ms X the service she received sometimes fell short of its usual high standards. It agreed follow the recommendations and learning points from the complaint investigation to ensure it did not repeat similar mistakes in the future.
  13. Ms X asked to go to stage 3 of the complaint procedure for a Review Panel hearing as she was dissatisfied with the outcome. The Council refused because it considered the stage 2 investigation was robust and upheld most of her complaints. The Council did not consider a review panel hearing would produce a different outcome.

Ms X’s request for a letter

  1. During the complaints procedure Ms X started legal proceedings against Mr Y and went to court for a CAO. Ms X asked the Council to confirm the agreement or basis on which the children went to live with Mr Y. Ms X said the Council removed the children from her. Ms X considered there was S20 agreement for Mr Y to care for the children for a specific period. The children would then return home as per the arrangement she and Mr Y had over shared custody.
  2. The Council confirmed that according to the child protection enquiry records the children said they wanted to go and live with Mr Y. He in turn agreed to care for the children while it carried out the S47 investigation. The Council said minutes of an ICPC in May 2018 stated Ms X said she was happy for the children to stay with Mr Y if they were happy. In addition, the minutes noted the care arrangements were parental choice and the chair advised ‘the parents to pursue a Child Arrangement Order ‘.
  3. The Council says Ms X accepted in a meeting in July 2018 the Council did not remove her children. In June 2018 there was a reference to a conversation between a social worker and Ms X where the social worker said the mother signed a S20 agreement. The Council says this is the only reference to S20 and was an inaccurate statement. The Council said the September review conference minutes stated the children reported not wanting to live with Ms X. The chair of the conference advised parents to consider private law proceedings.
  4. The Council says there was not a S20 agreement as children were not going to be living with foster carers. It advised Ms X the stage 2 investigation found using the term S20 was incorrect. The Council accepted referring to a S20 unhelpful leading to unnecessary confusion. The Council confirmed the circumstances leading to the children going to stay with Mr Y at first. It said it was due to the concerns arising from the child protection enquiries and the children’s wish to live with Mr Y. The Council says it later advised both Ms X and Mr Y to seek legal advice to pursue a CAO.
  5. The Council says it has consistently sought the children’s wishes and their feelings have been clear they wish to remain living with Mr Y.

Ms X’s complaints

  1. Ms X remains unhappy with the Council’s response and says;
    • The Council failed to provide her with a letter confirming the decision allowing the children to stay with Mr Y for three weeks was under a voluntary section 20 agreement. Ms X asked for such a letter many times and needed it for a complaint to the DWP as she considers Mr Y not entitled to child maintenance from her.
    • Ms X says this led to the loss of her ‘hard earned wages and caused mental distress due to the long-standing dispute with Mr Y’.
    • She incurred costs in engaging a solicitor and barrister due to going to court over the CAO. Ms X considers she would not have needed the CAO if the Council had carried out actions to put the contact arrangements back in place to those before May 2018.
    • Ms X needed to go to court for a non-molestation order incurring more fees due to Mr Y ‘attacking her and trying to snatch one of the children’.

Analysis

  1. I have reviewed the stage two report. I am satisfied the stage two investigation was robust and considered relevant information. Therefore, I consider it appropriate to rely on the findings reached at stage two and I have not reinvestigated the matters.

Section 20 agreement and CAO

  1. The documents show there was some confusion about the initial arrangements when the children went to stay with Mr Y in May 2018. The Stage 2 investigation found the Council did not explain the S47 investigation well to Ms X. And a social worker did not expand on the fact a S20 agreement was unnecessary as Mr Y was to care for the children. But as the stage 2 investigation found, it not possible to reach a finding on this point. This is due to the lack of detailed case recording and both parties having a different view of the same situation. Because of this I do not consider it is possible to reconcile the differences from the evidence available.
  2. So, the Council cannot provide the letter Ms X sought about a S20 agreement. It was not the agreement entered when the children went to stay with Mr Y. The agreement was one between Ms X and Mr Y. The Council explained its position to Ms X, and advised she can use the information it provided about the circumstances of the children going to stay with Mr Y.
  3. Ms X considers she would not now be having to take CAO proceedings if it were not for the Council’s failings in the first place. Ms X believes she would be back into the position she was in with child contact before the Council’s ‘intervention’ in May 2018 and so it should pay her costs for pursuing the CAO.
  4. While I appreciate how distressing it has been for Ms X the situation over the children going to stay with Mr Y would not have arisen but for the incidents leading to the S47 enquiries. From the social workers’ visit in May 2018 the children expressed a clear preference to stay and remain with Mr Y. So, I consider this made the need for Ms X to apply for a CAO almost inevitable. Unfortunately, the difficult issue of contact and situation Ms X found herself in relates more to her relationship with Mr Y, rather than because of the Council’s actions. The Council’s records show it suggested both Ms X and Mr Y explore the CAO process due to lack of agreement over contact arrangements.
  5. I consider that even if the Council had provided advice and support about contact sooner the children were making their wishes and feelings known. So, I do not consider there is a direct casual link between the actions of the Council and the costs for the CAO Ms X is claiming. This is also the case for the non-molestation order Ms X refers to. This is a matter between Ms X and Mr Y.

Dealing with Ms X’s complaints

  1. The documents show that although the stage 1 complaint was received on 2 October 2018 it was discussed between the Council and Ms X as the content was unclear. Ms X added and clarified her complaint on 26 October 2018. So, I consider it reasonable for the Council to consider the stage 1 complaint registered as dating from 26 October 2018.
  2. The Stage 2 investigation report was delayed and beyond the statutory 65 days allowed. This is fault by the Council but there is evidence the Council updated Ms X about the delay. So, I consider any injustice caused to Ms X by the delay has been remedied by the apology she has already received from the Council following the findings of the stage 2 investigation.

Stage 2 investigation findings

  1. The stage 2 investigation concluded the Council failed to carry out several actions required by the Child Protection meetings. And there was a lack of support and communications with Ms X. The Council upheld the findings of the stage 2 investigation. So, I consider there has been fault by the Council. This caused an injustice to Ms X due to the distress and uncertainty it caused to her during what was a stressful situation for her. Ms X has also been put to time and trouble in pursuing her complaints about her concerns which were largely upheld by the stage 2 investigation.
  2. I consider the faults identified did cause Ms X avoidable distress and uncertainty. Therefore, a financial remedy to recognise the injustice would be appropriate in the circumstances.

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Agreed action

  1. To remedy the injustice caused by the faults identified the Council has agreed to pay Ms X £250 to recognise the avoidable distress and uncertainty caused by the faults identified in the Stage 2 investigation. And her time and trouble in pursing her complaints.
  2. The Council should complete the above within four weeks of the final decision.

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Final decision

  1. I find fault with how the Council communicated and provided support during a child protection investigation. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated Ms X’s concerns about Mr Y’s claim for child maintenance as it is not in the Ombudsman’s jurisdiction to consider such complaints. I have not investigated Ms X’s concerns about where the children should live as this is a matter for the courts as is the child arrangement order which has been considered as part of court proceedings.

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Investigator's decision on behalf of the Ombudsman

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