Summary: Ms X complains that both councils – Kent and Havering – failed to take safeguarding action when her older, adult son disclosed that he had sexually abused her younger son, who is a child, six years previously. Kent was at fault for a two-month delay in telling Havering about the disclosure, and both councils were at fault for failing to tell Ms X about it in good time. Both councils also failed to properly communicate with each other when considering safeguarding action, which meant neither held a strategy discussion to explore the potential risk. Ms X’s younger son, who, it appears, was not actually a victim of abuse, suffered no injustice. But both councils have agreed to provide remedies to recognise Ms X’s distress, and to change their procedures and train their staff to prevent similar failures in future.

The complaint

1. The complainant, whom I refer to as ‘Ms X’, complains that two councils – Kent County Council and London Borough of Havering – failed to take proper steps to protect her son (whom I refer to as ‘Y’) after receiving concerns that he may have been sexually abused by his older brother (whom I refer to as ‘Mr Z’).
2. I refer to Kent County Council as ‘Kent’, and London Borough of Havering as ‘Havering’.
3. In February 2019 Mr Z, who is an adult with mental health needs and learning difficulties, disclosed to a psychologist that he had sexually abused Y – who, at the time of the disclosure, was 14 years old – around six years previously, when Mr Z had also been a child.
4. At the time of Mr Z’s disclosure he lived with his, and Y’s, father in Kent. Y lived with their mother, Ms X, in Havering.
5. Ms X’s complaint against Kent is that, after Mr Z’s psychologist made it aware of his disclosure, it failed to notify Havering for two months, and failed to tell her at all. She also says Kent refused to investigate the risk to Y.
6. Ms X’s complaint against Havering is that, after it eventually found out about
   Mr Z’s disclosure, it delayed telling her about it. She says Havering also refused to investigate the risk to Y.
7. Ms X says the failures of both councils meant that not only was there no professional consideration of whether Y was at risk of suffering sexual abuse, but there was also a period of three months in which she could take no action to protect him – because she knew nothing about Mr Z’s disclosure. During that three-month period Y had fortnightly overnight contact with his father, with Mr Z present.

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The Ombudsman’s role and powers

8. 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)
9. 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)
10. 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

11. I considered information from Ms X, and from both councils. All parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened?

The Children Act 1989

12. Section 47 of the Act places a duty on councils to make safeguarding enquiries when they suspect a child who lives, or is found, in their area is at risk of significant harm. These are routinely referred to as ‘section 47 enquiries’.

Working Together to Safeguard Children

13. This 2018 document (which I refer to as ‘Working Together’) sets out statutory guidance to councils and other professionals on how they should meet their child safeguarding duties under the Children Acts of 1989 and 2004.
14. After receiving a referral about a child’s welfare, a council should decide on the next course of action, and feed back to the referrer, within one working day.
15. If a council has reasonable cause to suspect a child is at risk of significant harm, it should hold a multi-agency strategy discussion to decide whether to make
    section 47 enquiries.

The London child protection procedures

16. These procedures set out how London councils, including Havering, meet their child safeguarding duties.
17. Under the procedures, a child ‘is found’ in a council’s area (as per section 47 of the Children Act 1989) if they are at risk there, even if they live somewhere else.
18. When a child lives in one area but is at risk in another, the council where child is at risk (or ‘is found’) is responsible for making section 47 enquiries. The council where the child lives can make these enquiries, but only once this has been agreed by both councils.
19. The procedures set out how professionals can escalate disagreements between one another. If the disagreement is about how a London council has handled a safeguarding referral, this can be referred to a more senior manager. If that is unsuccessful, it can be referred to the heads of the respective services.

The Kent and Medway safeguarding children procedures

20. These procedures set out how Kent meets its child safeguarding duties. They are published by the Kent Safeguarding Children Partnership – of which Kent County Council is a member – and its neighbouring partnership in Medway.
21. As per section 47 of the Children Act 1989, safeguarding referrals should be made to children’s social care for the area in which the subject child ‘lives or is found’, and the duty to make section 47 enquiries lies with the council where the child ‘lives or is found’.
22. There is no clear explanation of what ‘is found’ means when a child lives in one area (and, at the point of referral, is physically located at home) but is potentially at risk in another.
23. The procedures set out how professionals can escalate disagreements between one another. As with the London procedures, if the disagreement is about how Kent has handled a safeguarding referral, this can be referred to a more senior manager. If that is unsuccessful, it can be referred to the heads of the respective services.

What happened?

24. In February 2019 Mr Z was arrested for possession of indecent images of children. Shortly after his arrest he disclosed to a psychologist that he had sexually abused Y around six years previously.
25. Because of his additional needs, Mr Z had been allocated a social worker from Kent’s adult social care (ASC) department. The psychologist told Mr Z’s social worker about his disclosure.
26. Mr Z’s social worker did not pass this information onto Kent’s children’s social care department (which, its records suggest, knew Y’s correct address). Instead, she made a referral to the wrong council (which I refer to as Council X) as she believed Y lived there. The referral mentioned that Y had regular contact with
    Mr Z, in Kent, as part of his weekend contact with their father.
27. Kent says Council X did not respond to its referral. And for two months, Kent took no action to establish if any action had been taken to protect Y.
28. In April 2019, a new social worker was allocated to Mr Z’s case. She contacted Council X to chase the referral, and was told Y did not live there – he lived in Havering. The social worker immediately sent a referral to Havering.
29. Four working days later, it appears Havering had neither responded to Kent’s referral, nor decided how to deal with it. Mr Z’s ASC social worker called Havering to chase the referral, and said Y’s next contact with Mr Z would be on 3 May.
30. Havering’s records – inputted several days later – say it tried to call Ms X about Kent’s referral three times, without success, and left voice and text messages for her. But a later record says it may have got her number wrong. Either way, it failed to speak to her about the referral until 2 May – over a fortnight after first hearing from Kent (and two and a half months after Mr Z made his disclosure).
31. When it did speak to her, Havering told Ms X that it could not take any safeguarding action because Y himself had not made a disclosure. It told her she needed to report the matter to the Police herself (which she then did).
32. Meanwhile, Mr Z’s ASC social worker told Kent’s children’s social care department about his disclosure. It told her that, as Y lived in Havering, it was not Kent’s responsibility to take further action. It forwarded her referral to Havering.
33. The social worker spoke to Havering again, but it refused to hold a strategy discussion because Y had not made a disclosure. It said the Police were investigating the matter, and, if Y disclosed sexual abuse, Havering would reconsider further safeguarding action.
34. The Metropolitan Police then spoke to Y, who did not disclose any sexual abuse. This information was passed onto Havering.
35. Shortly after this, Mr Z’s ASC social worker tried to convene an adult strategy discussion to consider the general risk posed by Mr Z (as opposed to the specific risk to Y). She invited Havering to the discussion. It refused to attend, saying it did not attend strategy discussions on closed cases.
36. Havering then closed Y’s case.
37. Following this, Kent’s ASC department took various steps to consider, and manage, the general risk from Mr Z. In March 2020, having failed to secure his engagement, it closed his case.
38. Later in 2020, after fully considering Ms X’s complaint, Havering agreed to assess Y’s needs. It spoke to him as part of the assessment, and had no concerns that he may have been sexually abused by Mr Z.

My findings

Kent

39. Kent’s child protection procedures are not clear about who should hold a strategy discussion, or make section 47 enquiries, when a child lives in one area but is at risk somewhere else. This is in contrast to the London child protection procedures, which are clear on this point (although the London procedures do not, of course, apply to Kent).
40. The Kent procedures do say that concerns about a child should be referred to children’s social care in the area where the child either lives or is found. In February 2019, when Kent’s ASC department first heard about Mr Z’s disclosure, it failed to do either of these things, and then – having referred to the wrong council – failed to chase this up for two months. It also failed to tell Ms X.
41. Kent accepts that this was fault. It says the errors appear to have been a result of a lack of understanding of child protection procedures within its ASC department.
42. Kent also points out that Working Together does not provide guidance on children in Y’s specific circumstances. I cannot make recommendations on national guidance; however, it appears that Kent does have some influence over the content of the procedures published by the Kent Safeguarding Children Partnership (as it is a member of the Partnership).
43. If Kent believes changes should be made to the Partnership’s procedures, it should make representations to the Partnership’s policy and procedures subgroup at the earliest opportunity.

Havering

44. After receiving the belated referral from Kent in April 2019, Working Together says Havering should have decided next steps within one working day. But it did not take any action on the Kent referral until being chased by Kent four working days later, and did not tell Ms X about the concerns for another week after that. This was fault.
45. Havering has already accepted that there was a delay, and has apologised to
    Ms X.

The duty to make section 47 enquiries

46. Each council has, in response to my enquiries on Ms X’s complaints, said it should have held a strategy discussion (and considered section 47 enquiries) after hearing about Mr Z’s disclosure.
47. The fact that each council now considers itself to have been at fault for failing to hold a strategy discussion is, perhaps, illustrative of the lack of national guidance on this specific issue – as highlighted by Kent in its enquiry response.
48. Given the lack of national guidance, and the inconsistency between guidance used by different councils, I cannot say with certainty that the responsibility to hold a strategy discussion fell exclusively on the shoulders of either council. But they unquestionably shared a responsibility to ensure Y was safe.
49. If both councils’ children’s social care departments had, at the outset, committed to working together to consider the risk to Y, they could have jointly decided which council was to hold a strategy discussion (the other could then have attended it).
50. If this had happened, both councils could have been satisfied that the risk to Y was being properly considered. Any disagreements about responsibility – or process – could have been addressed through each council’s respective professional conflict resolution procedures.
51. Instead, Kent’s children’s social care department:
• incorrectly decided it had no safeguarding duty because Y lived in Havering;
• did not discuss the matter with Havering; and
• closed the referral without knowing what action, if any, Havering intended to take.
52. Havering:
• did not discuss the matter with Kent’s children’s services department (only
  Mr Z’s ASC social worker and her manager);
• refused to attend an adult strategy discussion planned by Kent’s ASC department, incorrectly saying it could not do this because Y’s case had closed; and
• decided Ms X and the Police should deal with the matter on their own, without any strategy discussion to consider the risk to Y.
53. Both councils have accepted fault in their respective approaches. They should now work together to ensure that similar future cases do not lead to similar failings.

Injustice to Ms X and Y

54. Ms X experienced an injustice from the failure of both councils to tell her about
    Mr Z’s disclosure in good time (or, in Kent’s case, at all).
55. It is likely that finding out about the delay at the same time as finding out about
    Mr Z’s disclosure would have added to Ms X’s distress. This is particularly the case given that she had been sending Y to overnight contact with his father – and Mr Z – throughout the period of delay, without knowing anything about a possible risk from Mr Z.
56. If Y had been suffering sexual abuse, then the potential consequences of the councils’ failures can hardly be overstated. However, it appears – from the Police investigation, as well as a subsequent assessment by Havering – that this was not the case.
57. As a result, I do not consider Y to have experienced a significant injustice.
58. Havering has already apologised to Ms X and has offered her a remedy payment of £500 to recognise the potential risk to Y, as well as her own distress. Having considered the Ombudsman’s guidance on remedies, I am satisfied that this payment adequately recognises the injustice Havering caused.
59. Kent should also apologise to Ms X, and should match Havering’s payment.

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Agreed actions

Kent

60. Within six weeks of my final decision statement, Kent has agreed to:
• write to Ms X and apologise for the failures identified in this decision statement; and
• make a payment of £500 to recognise her distress.
61. Within three months of my final decision statement, Kent has agreed to:
• arrange the delivery of refresher training to its ASC staff on how, and when, to make child safeguarding referrals; and
• decide whether amendments (on the issue of cross-border child protection) should be made to the Kent Safeguarding Children Partnership’s procedures, and, if so, make representations to its policy and procedures subgroup.

Havering

62. Within six weeks of my final decision statement, Havering has agreed to make the payment of £500 it has already agreed with Ms X.

Kent and Havering

63. Within three months of my final decision statement, Kent and Havering have agreed to work together to agree an approach which can be used in future cases when a child lives in one area but, potentially, is at risk of harm in another. They have agreed that this approach will:
• set out how the councils will deal with such referrals in future – including inter-authority communication;
• not be limited to cases that involve both Kent and Havering – it will be the approach each council takes to all cross-border child protection cases; and
• be shared with all staff – at both councils – who deal with children’s safeguarding referrals.
64. Within six months of my final decision statement – and after the new approach is agreed – Kent and Havering have both agreed to arrange the delivery of refresher training on cross-border child protection to their respective staff members who deal with children’s safeguarding referrals.

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Final decision

65. Kent was at fault for a two-month delay in telling Havering about Mr Z’s disclosure that he had sexually abused Y, and both councils were at fault for failing to tell
    Ms X about it in good time. Both councils also failed to properly communicate with each other when considering safeguarding action, which meant neither held a strategy discussion to explore the potential risk. The agreed actions remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman