Summary: Mr X complained the Council failed to share information with him between July and December 2018 about a child protection investigation it carried out involving his child. The Council followed legal advice when it decided not to share information with him. It also provided Mr X with an adequate explanation of that legal advice. It was at fault for failing to contact Mr X about the matter in 2019 when it promised to do so. However, this did not cause Mr X any injustice as the Council had already provided him with an explanation on the matter.

The complaint

1. Mr X complained the Council failed to share information with him between July and December 2018 about a child protection investigation it carried out involving his child. Mr X said the Council has failed to adequately explain its decision making on the matter. He said the Council’s failure to share information with him caused him distress and meant the investigation lasted longer than necessary.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. 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

6. I spoke to Mr X about his complaint and considered the information he provided.
7. I considered the Council’s response to my enquiry letter.
8. Mr X and the Council had an opportunity to comment on draft decision. I considered comments before I made a final decision.

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What I found

Protecting children from harm

9. The Council has a duty to investigate if it has reasonable cause to suspect that a child who lives in its area is suffering, or is likely to suffer, significant harm. This duty comes under Section 47 of the Children Act 1989.
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 Section 47 enquiries.
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. Where the Council is very concerned about the welfare of a child, the social worker may consider taking the case to court. Public law outline (PLO) is a set of rules which tells social workers how to deal with these sorts of cases. The PLO rules state that when a social worker is thinking of taking the case to court, they should invite the parents of the child to a meeting to discuss the concerns. This meeting considers what steps to take to protect the child from harm and whether parties involved can fix the problems without the need to go to court.

Parental responsibility

15. All mothers and fathers have legal rights and responsibilities as a parent. This is known as ‘parental responsibility’ (PR) which is defined by the Children Act as being ‘all the rights, duties, powers, responsibilities, and authority which by law a parent of a child has in relation to the child and his property’.
16. In practical terms a person with PR can make day to day decisions about the child’s upbringing and is entitled to information about their child.
17. Government guidance states a mother automatically has parental responsibility for her child from birth. A father usually has PR if he is either;
• married to the child’s mother, or
• listed on the birth certificate.
18. Unmarried fathers can get PR either by agreement with the mother or by applying for a PR court order.

Legal professional privilege

19. Legal professional privilege protects confidential communication, written or oral, between a lawyer and client from being disclosed. This is if the communication is for the purpose of seeking and receiving legal advice.

What happened

20. Mr X has two children, with Ms Y. Mr X and Ms Y were not married and are estranged. Prior to 2019, Mr X did not have PR for the two children, however he had regular contact with them. Mr X at this point was applying to the court to grant him PR.
21. In July 2018 Mr X sent the Council a photograph of one of the children following contact with them. The photograph showed the child with a head injury. Mr X said the child had received some medical attention; however, the injury was unexplained and therefore he sent the photograph to the Council out of concern.
22. Upon receipt of the photograph from Mr X the Council decided to hold a strategy meeting. It decided the injury to the child met the threshold to initiate a section 47 investigation.
23. The records show Ms Y was resistant to engage in the process or with anybody from social care. The Council had concerns about Ms Y’s unwillingness to engage with social workers or other services such as health visitors. The records show Ms Y told the Council she did not want Mr X involved in the investigation or any information shared with him.
24. The Council held a child protection conference in July 2018 which Ms Y attended. Records show Ms Y made it clear to the Council that she would not engage with social care. Following the conference Ms Y refused Council officers and social workers access to the children and refused to answer phone calls. Ms Y had refused to discuss the circumstances around child’s head injury or confirm where and when the child had received medical treatment. Ms Y refused to share any details of the hospital which treated the child. Ms Y accused Mr X of harassing her and told the Council he was not actually the children’s father.
25. At this point the Council decided to hold a PLO meeting and enter court proceedings. The Council sought legal advice from its solicitors about whether it could share information about the investigation with Mr X. The Council said it wanted to invite Mr X to the PLO meeting; however it was concerned whether it could share information without Ms Y’s consent as Mr X did not have PR. The solicitor told the Council that as Mr X had regular contact with the child it could inform him of matters and also tell him about the PLO. Records show the social worker leading the investigation contacted Mr X following this and discussed the matter with him. Mr X said this was helpful as it allowed him to provide some information to the Council after the non-cooperation from Ms Y.
26. In September 2018 the Council allocated the case to a new social worker. The PLO then took place in mid-October. Records show Ms Y started to engage in the process following the PLO meeting. However, Ms Y made it clear to the social worker that she did not want Mr X involved in any way.
27. Mr X contacted the social worker and asked for an update on the matter. The social worker asked the Council solicitors for further advice on whether they could share information with Mr X given Ms Y’s comments following the PLO meeting.
28. The solicitors provided the social worker with new advice on the matter. The solicitor said that as Mr X did not have PR then the Council would have to respect Ms Y’s wishes and not share further information on the matter with him. The solicitor said the Council should wait until Mr X’s court application for PR was decided.
29. The social worker called Mr X in November 2018 and advised him about the new legal advice. Mr X was unhappy and asked the social worker why the legal advice had changed. The social worker asked the solicitor to provide a rationale. They said the initial advice was on the basis Mr X was having regular contact with the child. However, as Ms Y had made it clear the Council was not allowed to involve Mr X the advice changed. It said as Mr X did not have PR, the Council had to accept Ms Y’s assertions.
30. The court awarded Mr X with PR in December 2018. Following this the Council provided him with a full update on its investigation. Mr X was provided with an overview of the case and copies of child protection plans which were in place. However, Mr X remained unhappy with the Council’s rationale as to why the legal advice changed. In January 2019, Mr X asked for the Council to escalate his concern to a senior legal officer. The senior officer emailed Mr X in January 2019 and said they would make enquiries and get back to him.
31. Mr X did not receive a response from a senior legal officer, so he wrote to the Council’s Chief Executive. They responded in February 2019 and reiterated the Council’s rationale outlined in paragraph 28.
32. Mr X was unhappy with the Chief Executive’s response and asked whether the Council’s solicitor had endorsed the response. Mr X indicated he intended to complain to the Solicitor Regulation Authority (SRA) about the solicitor involved in the original legal advice. The Chief Executive responded and said they were unable to assist any further, and that Mr X should complaint to the SRA if he wished.
33. The Council closed the child protection case in May 2019 as the matter no longer met the threshold for its involvement. The Council did not progress any of the matters to court.
34. Mr X formally complained to the Council in July 2019. He said the Council had failed to provide a full explanation from its solicitors about the change in legal advice and had failed to assist any further.
35. The Council sent Mr X a final response in August 2019. It said the letter from the Chief Executive in February 2019 was written by the legal department and subsequently reviewed and sent out from the Chief Executive. The Council confirmed the legal officer involved had viewed the letter and had agreed with the content. The Council did not uphold Mr X’s complaint; however said someone from the legal team should have contacted him to discuss the matter.
36. Mr X remained unhappy and complained to the Ombudsman.

My findings

37. Mr X has not complained about the Section 47 investigation or the outcome of it. His complaint was about both the Council’s failure to share information with him, and its failure to provide an adequate rationale for the change in legal advice.
38. It is not for the Ombudsman to interpret law or legal advice. When the Council decided to investigate Mr X’s photograph of his child’s injury it sought legal advice over whether to share information with him. The social worker acted in line with the legal advice at the time. The Council was not at fault for initially sharing information with Mr X.
39. Following a PLO meeting, Ms Y made it clear to the Council that she did not want Mr X involved in the investigation or any information sharing with him. Mr X did not have PR, so all the rights in respect of the child lay with Ms Y. The Council’s solicitor decided based on Ms Y’s wishes that the Council should now not share information with Mr X. Therefore, the social worker acted in line with that advice and told Mr X it could not longer share information with him about the investigation. The Council was not at fault.
40. Mr X said the Council failed to provide him with an adequate rationale for its change in legal advice. Records show the social worker told Mr X in November 2018 that the new legal advice was not to share information with him because he did not have PR. Mr X also received an email from the solicitor in early January 2019 which explained why their legal advice changed. Therefore, I am satisfied the Council provided Mr X with an appropriate explanation and rationale for the legal advice provided to the social workers. The Council was not at fault.
41. Mr X wanted copies of the Council’s legal advice. However, this correspondence is protected by legal professional privilege. Therefore, the Council is not at fault for refusing to disclose copies of the legal advice to Mr X.
42. During January 2019 a senior officer agreed to contact Mr X to discuss the matter, however they did not. That was fault, however it did not cause Mr X any injustice as the Council had already told Mr X the rationale for its change in legal advice.
43. Mr X has said the Council’s change in legal advice caused delays in the investigation and caused him distress. I have seen no evidence that the matter complained about caused any delays in the Council’s investigation. Records show it was Ms Y’s resistance to engage in the process which prevented matters progressing in the first instance. While I acknowledge the change of legal advice in October 2018 caused Mr X distress and frustration, the Council’s hands were tied because ultimately Mr X did not have PR. Mr X was granted PR in December 2018 and from that point the Council kept Mr X fully informed and updated on the investigation.

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Final decision

44. I have completed my investigation. I found fault in how the Council communicated with Mr X, however, it did not cause him an injustice.

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Investigator's decision on behalf of the Ombudsman