Summary: The complainant alleges that the Council failed to act in accordance with the requirements of the statutory Working Together 2018 child protection guidance. The Council has already found fault in its actions. But the Ombudsman does not consider the Council has recognised the resulting adverse consequences and it has not provided an appropriate remedy for the family’s injustice. The Council has agreed the Ombudsman’s recommendations to remedy this. He has therefore completed his investigation and will close the complaint.

The complaint

1. The complainant, who I refer to as Mr X, complains on behalf of himself and his mother, who I refer to as Mrs Y. Mrs Y looks after her teenage niece (Child B) for whom she has parental responsibility. I have Mrs Y’s consent for Mr X to pursue a complaint on her behalf.
2. Mr X complains about the Council’s safeguarding action in relation to Child B, after Child B alleged that she had suffered abuse while visiting relatives. The Council and the Police arranged a child protection medical examination and, although there were no grounds to pursue the initial allegation, some old burns were found on Child B. The Council decided to take protective action because there was a concern about female genital mutilation (FGM).
3. Mr X complains that the child protection process was flawed and that the Council’s social workers actions were unprofessional, and the first social worker made racist and discriminatory comments. This has caused Mrs Y and the family unnecessary distress.
4. The Council has investigated Mr X’s complaint under its two stage corporate complaints procedure. Many of the complaints have been upheld. But Mr X considers that the Council has not considered properly the information available nor has it offered an appropriate remedy.

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What I have investigated

5. I am looking at matters between July and October 2019. Events after this date are being investigated by the Council. Mr X may decide to submit a fresh complaint about these to the Ombudsman. If so, we would consider this as a new but related complaint.
6. I am not making any finding concerning misconduct about the social workers. This is because there is another agency better placed to consider this. I explain this more fully in the last paragraph of this statement.

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The Ombudsman’s role and powers

7. 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)
8. 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)
9. In addition, we can investigate matters coming to our attention, during an investigation, if we consider that a member of the public, who has not complained, may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended).
10. 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

11. I have considered the information and documents provided by Mr X and by the Council, which includes the complaint papers. I have spoken to Mr X on the telephone. He provided a detailed account of the significant negative impact on the family by the Council’s actions.
12. I have considered the relevant legislation and guidance, as outlined below.
13. If a council has investigated a complaint under the statutory procedure, or under its corporate process, the Ombudsman does not normally re-investigate the original complaints unless he considers that the investigation was flawed. Instead, he will look at whether a council properly considered the findings and recommendations of the independent investigation and whether the council has provided a suitable remedy.
14. I issued a draft decision statement to the Council and to Mr X. I have taken into account their additional comments when reaching my final decision.
15. Under the information sharing agreement between the Local Government 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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What I found

Legislation and guidance

16. Councils must have regard to the principles set out in the Human Rights Act and the Equality Act 2010. Councils must comply with the public sector equality duty to have due regard to the need to eliminate discrimination, harassment and victimisation

Children in need

17. Under section 17 of the Children Act 1989, a child is considered a ‘child in need’ if disabled or it is likely that his or her development will be impaired unless services are provided. Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child's needs. (Children Act 1989, section 17).

Safeguarding children

18. Under the Children Act 1989 (the Act), councils have a duty to safeguard children and promote their welfare. Anyone who has concerns about a child’s welfare should make a referral to the local authority’s children’s social care department.
19. Under section 47 (s47) of the Act, if a child is suspected to be suffering, or likely to suffer, significant harm a council must make enquiries to decide if any action needs to be taken to safeguard that child or promote that child’s welfare.
20. Where there may be a criminal offence, councils will carry out joint s47 investigations with the Police.
21. There is statutory guidance - Working Together to Safeguard Children 2018 - to help councils make decisions about the protection of children. Its assessments should ascertain the child’s wishes and feelings, gather information systematically and determine the child’s needs and risks.
22. The guidance says that:

“assessment is a continuous process that should build upon the history of the case. A social worker arrives at a judgment early on in the case but this may need to be revised as the case progress and further information comes to light”

23. In addition, the Home Office has issued guidance about managing cases of suspected FGM. Local Safeguarding Children’s Boards are responsible for monitoring and evaluating the effectiveness and conduct of a single agency and inter-agency training on child protection matters. Such training may include specific training on FGM.

Child protection case conferences

24. If the information gathered under s47 substantiates that the child may be at risk of significant harm, the council will arrange an initial child protection case conference (initial conference). These are multi-agency meetings involving a range of professionals involved with the child.
25. The initial conference decides whether to recommend that the child should be subject to a child protection plan and there will then be close monitoring of the child. Alternatively, the initial conference can decide to manage the case under the ‘child in need’ protocol.
26. Child protection conferences are managed by an independent Chair. The Chair is accountable to the Director of Children’s Services. Minutes should be made and sent to those who attended. Councils should have separate complaint processes where a parent/carer is dissatisfied with the conduct, or the decision, of the child protection conference.
27. After the initial conference, and if the decision is to place a child under a child protection plan, there will be core meetings with the professionals and family to assess progress. There should be review child protection conferences. These consider the progress taken to safeguard the child and whether the child protection plan should be maintained, amended or discontinued.

Child safety agreements

28. Councils sometimes use written agreements, or written contracts, with parents or other family members, as a useful tool to manage situations where there is a child protection concern.
29. Ofsted produced guidance in January 2018 about how these agreements can be used more effectively. It says written agreements should be underpinned by thorough assessment that is clear and that parents genuinely understand the terms and need for the agreement.

Children’s social care complaints

30. The statutory complaints process under the Children Act 1989 allows councils to investigate complaints about services provided to children in need and to their families.
31. Councils do not have to investigate child protection complaints under the statutory process although some will do so. In these circumstances, these complaints should be dealt with under the council’s corporate complaints process.
32. Councils should have a separate complaints process for complaints about multi-agency child protection conferences and decisions made.

Key facts

33. Child B was born abroad and came to live in this country with Mrs Y, when young. Child B has learning disabilities and a seizure disorder (fits). She attends a special school. Mrs Y shares parental responsibility with Child B’s parents, who have remained living abroad.
34. The Council says that Child B used to live in a country where female genital mutilation (FGM) is/was a common practice.
35. In July 2019, Child B told a member of staff at her school of a sexually abusive incident when visiting relatives, which she said involved a sharp instrument. The school referred this to the Council’s Children Services. It was decided that the Council and the Police should carry out a joint s47 investigation.
36. Social worker A was allocated the case. He visited Child B at school with the Police.
37. Mrs Y explained that they had only visited relatives, and that Child B was not out of her sight, because of her medical difficulties, which require close monitoring (seizures).
38. As part of the s47 investigation, Mrs Y agreed to Child B having a child protection medical. The child protection medical officer stated that there was no injury to indicate sexual abuse or FGM. The child protection medical officer said, however, that normal genital examination did not exclude previous injury and the officer noted that Child B had referred to this ‘abuse’ happening on three occasions.
39. The child protection medical officer also noted some old small burn marks on Child B’s stomach. The medical officer subsequently clarified that these burns happened at the same time. Child B explained to social worker A that she had accidentally burnt herself. However, the Council considered different explanations had been provided by the family about the cause of these burns.
40. The Police carried out standard criminal checks on Child B’s immediate family. Nothing of concern was revealed. But the Police did not check the residents of the house, which Child B had visited.
41. The Police decided that there was no evidence to pursue a criminal investigation because they were content that the medical information confirmed no injury to Child B, and this was sufficient to close the case.

The child protection process

42. Mrs Y does not speak English, or understand English, and she relies on her older daughters, and her son, Mr Y, to help her. Mr X says that the Council employed an interpreter for Mrs Y. But Mr X had to step in because he did not consider the information was being relayed to, or from, Mrs Y correctly by the interpreter. For example, Mrs Y had said that she would not leave Child B alone because of her seizures, whereas the interpreter said that Mrs Y had said that she would leave Child B alone.
43. The Council has accepted that the commissioned interpreter spoke a different dialect. The Council apologised for this error and, at the time, it sought to remedy this by appropriate interpreter instruction afterwards. The Council says that it appreciates the concern that incorrect information may have been gathered at this time, and work was undertaken afterwards to ensure records were accurate; enabling the professionals to correctly understand the information that was shared.
44. The Council subsequently accepted Mr X could act as an interpreter.
45. Social worker A drew up a ‘child safety agreement’ with Mrs Y, while it carried out further s47 enquiries. The Council insisted that a friend moved into the family home as a safeguard. Mrs Y complains that social worker A insisted on this, even though Child B had told him the burn was an accident and also there was no medical evidence to support the allegation of sexual abuse. Mrs Y says that, having a friend to stay, caused significant upheaval to the family and to the friend. The friend had to stay for two weeks.
46. Mr X says that social worker A told Mrs Y that Child B would be placed in foster care unless she agreed to the child safety agreement. Mrs Y says that the social worker made insulting and racist comments and advised her to undertake a parenting course, despite the fact that she has successfully raised five children. Mrs Y also says that the social worker made unannounced visits at anti-social hours, one time arriving at 8pm one night, unannounced.
47. Mr X says that he offered to come to stay with Mrs Y, but social worker A said that he had a poor Disclosure and Debarring (DBS) record. Mr X says that this is not the case. He is a medical student and there are no adverse records.
48. The Council says that it regrets that it is unable to find any records to help satisfy the complaint about the child safety agreement. Mr X says that Mrs Y was not given a copy of this child safety agreement and I have assumed from the Council’s comments that there is not a copy of this on the Council’s files.
49. The Council says that a child safety agreement is sometimes used during s47 enquiries. But this would not include DBS check because a DBS check requires time to process. With child protection concerns, there is the need to act quickly in creating a safe support structure for children. But the Council may undertake, via Police colleagues, criminal checks. But there is no record of this activity either.
50. The Council says the child safety agreement covered the direct care and supervision of the child to ensure she was being carefully monitored, in the home, while the Council made its s47 enquiries.
51. The Council apologises for the limited records made by the allocated social worker, at that time, who the Council was unable to interview as part of its complaint investigation as he is no longer employed by the Council.
52. The Council decided Child B’s family circumstances required further consideration. Mrs Y says that social worker A did not seek information from Child B’s school, as he should have done.
53. The Council decided the threshold was met for the case to be considered at an initial child protection conference.

Initial child protection case conference of September 2019

54. Mr X attended the conference as did Mrs Y, two daughters and a cousin.
55. At this conference, it was decided to recommend that Child B should be subject to a child in need plan for three months because of the historic burn mark. The then Chair of the conference did not challenge this decision. It appears that the conference considered that there were sufficient protective factors within the family.
56. Mr X says that social worker A failed to visit after the conference, as agreed, and he cancelled a meeting at Child B’s school at the last moment. Mr X also says that the Council does not have a complete record of this meeting.
57. The Children Services manager did not accept the initial child protection conference’s recommendation because she felt that additional information had come to light which meant Child B could not be properly protected under a child in need plan. The manager asked for there to be a further child protection conference to reconsider the case.
58. The Council says that there were concerns about Child B disclosing a history of being injured on at least three separate occasions (she had said this to the child protection medical officer). Given Child B’s heritage, the Council considered the risk of her experiencing FGM had to be taken into account.  There was a concern that there may have been previous attempts at FGM. 
59. There was a further case conference in early October 2019. But Mrs Y and her family were not told of it although social worker A believed the administrators had sent the family an invitation.
60. At this conference, other concerns were raised about the family, including the possibility that Mrs Y might take Child B out of the country for illegal medical procedures. It was known that Mrs Y had had this procedure as a child. But all her daughters had not, and she had made it clear that she knew it was illegal and she would not allow or want Child B to have such a procedure.
61. At the conference, it was recommended that Child B be placed on a child protection plan under the criteria of physical abuse because of the historic burn and because of a fear that Mrs Y might leave the country with Child B to enable her to have FGM.
62. Mrs Y complained to the Council and explained she was very insulted by the suggestion that she would leave the country and there was no evidence to support an allegation that she intended to arrange for Child B to have FGM.
63. Mr X says that social worker A had looked at their passports (although this is not recorded in the records). Mr X says that the family have Swedish passports with an indefinite right to remain in this country. It would not have been possible for Mrs Y to have travelled to a country where FGM is performed.
64. Mr X also says that Mrs Y had also made it clear that she was against this procedure and none of her grown up daughters had had this. Mr Y considers the Council was making unfounded assumptions, based only on the family’s original heritage and it failed to weigh in the balance all the factors which demonstrated that Mrs Y was against FGM in any event.

Subsequent events-October to December 2019

65. Social worker A left the Council’s employment, and the case was allocated to social worker B. Mr X says that social worker B said that she was not sure why the case remained in child protection.
66. Mr X complained to the Council. Mr X met the Chair of the conference with social worker B in December 2019 to raise his concerns about the change of approach from child in need to child protection. Mr X says that the social worker B and the Chair had an argument and social worker B was told to leave by the Chair.
67. The Chair explained to Mr X that she wanted to investigate the background of Mrs Y’s other children. Mr X says that he thought this was to check whether the older children had been subject to FGM. The Chair was also concerned that the Police had not carried out criminal checks on the relatives who Child B had visited.
68. These above events (October to December 2019) are now subject to an independent investigation by the Council and are not part of this current investigation.
69. Child B remained subjected to a child protection plan until March 2020 when there was a third conference, and it was decided that Child B should not be subject to a child protection plan.

The Council’s complaint findings

70. The following complaints were upheld.

Bias and unfairness

71. At the time of the Council’s stage 2 investigation, social worker A had left the Council’s employment. Mr X complained that he made racist comments, also casting aspersions on Mrs Y’s parenting abilities, even though Child B had said the burn was an accident. On balance, the Council upheld the complaint that the social worker had made unfair and racist comments to Mrs Y and her family.

A failure to follow correct procedures

72. The Council found that the change of plan from a child in need to a child protection plan had not been discussed with Mrs Y, and the reasons for this change of plan was not documented. So, it was not clear why this decision had been made. The Council considered social worker A should have discussed this directly with Mrs Y. The Council also found, as fault, that the family had not been invited to the second conference, as they should have been.

Poor standards of decision making

73. The stage 2 investigation recorded:

“Having reviewed Child B’s social care file, I have been unable to find any direction in Child B’s case. Meaning that other than it being noted that Child B is vulnerable and that she had an unexplained injury at some point in the past, it is difficult to understand why the case is still open or what Children’s Services hopes to achieve by the case remaining open.

During our meeting, you [Mr X] told me that there had been a suggestion of Child B being at risk from female genital mutilation (FGM). I have found no evidence to explain where this suggestion came from. I assume the suggestion arose due to Child B’s ethnicity and that her original disclosure involved penetration with a sharp instrument. The sexual abuse allegation was discounted by the police on the 23rd July as there was no physical evidence”.

74. The Council concluded that it could find no evidence to explain why there had been a concern about FGM, besides Child B’s original allegation referring to a sharp instrument. The Council found that there was no evidence of social worker A looking into these concerns properly.

No or poor communication

75. The Council was satisfied that the decision to change the plan to child protection had not been communicated properly and that generally the communication with the family had been poor.

Complaints which were not upheld

76. The Council did not uphold the complaint that there was unreasonable delay in dealing with the case because the Council considered it required some time to look at the concerns. The Council could also not say that social worker A had been ‘incompetent’ as alleged by Mr X and Mrs Y.

Impact of the identified faults

77. The Council concluded that Children Services’ involvement had affected Mrs Y and her family negatively and this had caused unnecessary frustration, inconvenience and hurt. The Council has apologised for its errors.
78. Mr X says that the injustice to his family by the Council’s accepted faults, in particular to Mrs Y, is more than as described by the Council and an apology is not sufficient. Mr X and Mrs Y understood that the Council had a duty to investigate child protection concerns. But they felt that the Council misused its powers and made unfounded assumptions. It unfairly insisted on a relative living at Mrs Y’s house, as part of a child safety agreement, which caused upheaval to both families.

Findings

79. Child protection enquiries are daunting for parents/carers but are required to be undertaken when safeguarding concerns are raised. Mr X and Mrs Y understood this. But it is important that child protection assessments and decisions are based on accurate information which properly weighs in the balance the protective and risk factors in a child’s life.
80. I accept the errors identified by the Council in its investigation, notwithstanding a decision was reached, on the balance of probabilities, about racist comments, even though the social worker was not interviewed as part of the Council’s investigation. Ideally, efforts should have been made to interview social worker A.
81. In addition, I find further fault in that the Council failed:
1. to ensure Mrs Y had a suitable interpreter;
2. to consider properly whether Mr X was a suitable person to stay with Mrs Y as part of the Council’s child safety plan;
3. it failed to keep a copy of this plan; and
4. it did not keep adequate records.
82. I also accept the finding that there was no avoidable delay in the child protection process.

Injustice

83. Mrs Y and her family suffered avoidable distress and hurt for which the Council has apologised. But I do not consider this is an adequate remedy.

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Agreed actions

84. The Council says it has reviewed the structure and management oversight of the Children Services’ assessment service to ensure resources are in place to deliver robust processes. The Council is also due to commence training on the issues raised in this case. In addition, it has advised managers to ensure it checks the dialect when commissioning interpreters.
85. It is good practice that the Council has looked to learn from this complaint.
86. However, where there has been avoidable distress, the Ombudsman looks to remedy such injustice through a symbolic payment, normally between £300 to £1,000 depending on the severity of the injustice, the vulnerability of those affected and whether the injustice is over a prolonged period. However, there is discretion to recommend a higher amount where the injustice is particularly severe and prolonged.
87. I consider that the injustice in this case requires a higher remedy than normal given Mrs Y’s vulnerability and the hurt caused by the Council’s faults.
88. Within one month of the date of the final statement, the Council will:
1. apologise to Mrs Y and her family for the faults identified and pay Mrs Y £1,500 for her to decide how this should be shared with any other family member; and
2. pay £250 to Mr X for his time and trouble in pursuing the complaint.
89. Within three months of the date of the final statement, in addition to the action, which the Council is already taking, the Council will:

• carry out a random review of the child protection, and child in need, cases managed by social worker A since he started working with the Council, which may also include looking at the management oversight;
• approach its Learning Development Team to ensure that the lessons from this complaint are disseminated, as part of its social work training, to ensure social workers, working in the difficult area of child protection, learn about the importance of cultural assumptions;
• will improve its complaint investigations by trying to ensure that, wherever possible, efforts are made to trace and interview a social worker, even if they have left, particularly where there are serious allegations;
• will check whether there have been any further complaints about the commissioning of interpreters and, if so, decide what further action the Council needs to take.

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Final decision

90. There has been fault by the Council, which it has accepted. The Council has agreed the actions to remedy the resulting injustice to Mrs Y and to Mr X and to improve its social work practice. Therefore, I have completed the Ombudsman’s investigation and I am closing the complaint.

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Parts of the complaint that I did not investigate

91. Mr X complained about the professional practice of some social workers. The Ombudsman considers the actions of the Council as a corporate body rather than the actions of individual officers. Mr X can complain to the registration body for social workers, Social Work England. This body is responsible for upholding standards of professional social work practice and can consider complaints of unfitness to practice.
92. I understand that Mr X has now approached Social Work England.

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Investigator's decision on behalf of the Ombudsman