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London Borough of Merton (21 001 651)

Category : Children's care services > Child protection

Decision : Upheld

Decision date : 09 Dec 2021

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to properly investigate safeguarding concerns raised by himself and others about his daughters’ mother. His daughters were subsequently abused by their mother’s partner. He feels this could have been prevented if the referrals had been taken more seriously. He states he was made to feel like a nuisance by the Council and this attitude has continued in respect of his complaints, causing him distress. Some of his complaints were made late. The Council is at fault in respect of its complaint handling and has caused injustice, for which it has agreed an apology and financial remedy. It is also at fault in its record keeping, but this did not cause injustice.

The complaint

  1. The complainant, who I refer to here as Mr X complains that:
      1. A social worker failed to obtain a report from Council 2 which had raised concerns about his children’s mother, M, and her abusive relationship. As a result, the social worker’s child and family assessment (CFA) was inadequate;
      2. Both social worker and Council made misleading statements which gave Mr X the impression they had obtained and read the Council 2 report; and
      3. The inadequate CFA was relied on to later dismiss his daughter’s later disclosures.
      4. Mr X points out that a CFA completed by the Council in 2020 noted that his daughters had been the subject of several referrals from professionals and their father since 2011 and that “on every occasion despite evidence of mother’s ill health and limited parental capacity to care safely for the children the referrals were either closed with no further action or closed following a s17 assessment”. Mr X’s view is that this is evidence of fault by the Council which requires further investigation to establish why action was not taken sooner. He says the following specific safeguarding referrals were not properly investigated:
    • A 2017 referral about one of his daughters being made to share a bed with another adult female;
    • Advice from M that one of his daughters was suffering vaginal soreness; and
    • Concerns raised by a social worker in 2018.
      1. The Council provided incorrect information to the police, which resulted in the police returning the children to their abuser. The Council then concealed this fact; and
      1. The Council has failed to investigate his complaints adequately.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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

  1. I spoke to Mr X and considered information provided by Mr X and the Council. I have shared this draft statement with Mr X and the Council and considered their comments before finalising my decision.

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What I found

Safeguarding and child and family assessments

  1. Councils have a responsibility to safeguard and promote the welfare and safety of children in need. Under the Children Act 1989 councils undertake assessments of the needs of individual children. The purpose of the assessment is to gather information about the child and family, analyse their needs and/or the nature and level of any risk or harm being suffered by the child. Where necessary the council will then provide support to address their needs and make them safe.

What happened

  1. Mr X is separated from M, with whom he has two daughters who were of primary school age during the period concerned. M has a history of mental health problems and had been known to the Council for some years before the following events occurred.
  2. In 2016 M and the two children moved to Council 1, where M was hospitalised due to mental health issues. Council 1 carried out an assessment which recorded concerns over M’s relationship with a man who was a convicted criminal with a previous history of assault on a woman. The assessment noted two reports of incidents involving alleging physical and sexual abuse. In September 2016 M moved to Council 2 area. On the basis of a referral from Council 1, Council 2 completed an assessment of M which found no concerns and the case was closed.
  3. In summer 2017 M moved to the Council area. Not long afterwards, third parties raised concerns with the Council about the behaviour of one of the children and about M’s mental health and ability to cope. Mr X also raised concerns with the Council over M’s mental health. The Council carried out a child and family assessment.
  4. The assessment was finalised at the end of October 2017. It noted M and Mr X had a fractured relationship, with each blaming each other for the failure of contact arrangements. Mr X had raised concerns about M’s mental health and his daughters’ safety in M’s care based on the matters that had occurred when M was living in Council 1 area. The report concluded M was meeting the children’s needs and said Mr X would be advised to apply to court for a contact order to allow him to see his children in a defined manner. The case was then closed to children’s services.
  5. Mr X later again expressed concerns about the children’s wellbeing. He advised the Council that he wanted custody of the children and had applied to the family court for a child arrangement order, which is an order specifying where and with whom the child is to live.
  6. In December 2017 the family court ordered the Council to produce a section 7 report, which is a report containing background information on the children and their parents and the children’s wishes and feelings. The purpose of the S7 report was to help the family court decide the best arrangement for the children. The report was produced in 2018. The S7 report recommended the children live with their father on grounds of concern about M’s mental health. However, Mr X then decided not to pursue this arrangement. The resulting court order said the children should live with M and have weekly contact with Mr X.
  7. In autumn 2018 M came to the Council with concerns that one of the children was bedwetting and had slight genital redness following contact with her father and raised the possibility the child may have been sexually abused while in her father’s care. The child herself had made no disclosures. The Council contacted the child’s GP and established that M had reported the redness before her contact with Mr X. M agreed that was the case. The GP did not raise concerns about abuse. The social worker recorded her view that M may have used her child’s medical issues to prevent the children having further contact with their father. The Council decided to take no further action.
  8. In 2018 M formed a relationship with Mr Y. In 2019 M, Mr Y and the two children moved to a different area, that of Council 3. Council 3 advised the Council that the children were being cared for in a “private fostering arrangement” and asked for some basic background information on them, which the Council supplied. In autumn 2019 Council 3 then contacted the Council raising serious concerns about Mr Y’s history of domestic violence as well as M’s mental health.
  9. Mr X, who was abroad at the time, advised the Council he would care for the children when he returned. The Council agreed with Council 3 that it would alert the Council if the children moved back into the Council’s area. The children returned to their father’s care on his return but their mother took from their school shortly afterwards and again left them in the care of Mr Y in the Council 3 area.
  10. Mr X then applied for, and was granted, a child arrangements order. In December 2019 the children moved to the care of their father. In early 2020 the children disclosed they had been sexually abused by Mr Y.

The complaints

a) A social worker failed to obtain a report from Council 1 which had raised concerns about his children’s mother, M, and her abusive relationship. As a result the social worker’s child and family assessment (CFA) was inadequate

  1. Mr X complained to the Council about the content of the CFA in 2017. Mr X has now multiple complaints about the CFA with the Ombudsman. These complaints were made late – that is, they were made more than 12 months after Mr X became aware of what the Council had done. We cannot investigate late complaints unless there are good reasons. In this case I cannot see a good reason to do so – Mr X complained at the time and was unhappy with the Council’s handling of the matter but decided not to take the matter further.
  2. Mr X learned in 2020, via a Subject Access Request, that the social worker had failed to obtain Council 1’s full assessment. I therefore decided to investigate Mr X’s complaint about this.
  3. The Council accepts that the social worker did not have sight of Council 1’s full assessment. It states that the social worker did see extracts of the report, which Mr X sent to him. The social worker’s report shows he was aware of M’s history of mental health problems and of concerns about people she was allowing to live in her home. Its view is that sight of the full Council 1 report would not have altered the social worker’s assessment as he considered that M was not in a relationship at the time the CFA was written and no other adult was living in the family home with her. The social worker has now left the Council’s employment.
  4. In my view the Council should have obtained the full report from Council 1. It is at fault in either failing to obtain the full Council report or record it on file that it had done so. However it is not possible to say that the social worker’s assessment would have been different if the full report had been obtained. I do not therefore find that there is evidence of injustice arising from this fault, particularly as the Council had access to relevant parts of the report which Mr X provided.

b) Both social worker and Council made misleading statements which gave Mr X the impression they had obtained and read the Council 1 report

  1. Mr X states that the social worker stated he had obtained all relevant information and that the Council also stated, via its insurers, that the Council 1 report had been received and reviewed. However, no documentary evidence was released to him via a Subject Access Request to support these claims. He says they are inaccurate and misleading. The Council accepts that the reference to the Council 1 report having been reviewed may have given the impression that this referred to the full report rather than extracts. It apologised for this prior to the Ombudsman’s intervention. In my view this is an appropriate remedy.

c) The inadequate CFA was relied on to later dismiss his daughter’s later disclosures.

  1. Mr X told me he learned from the Subject Access Request in 2020 that a skewed description of the parental relationship in the social worker’s report later resulted in his daughter’s disclosures being dismissed as the product of an acrimonious relationship.
  2. Mr X complained about the contents of the report in 2017 and I do not intend to re-investigate this as it is out of time, as discussed above. I have investigated whether the Council dismissed his daughter’s disclosures. There is no evidence the Council treated his daughter’s disclosures with scepticism. The disclosures about their assaults by Mr Y were made when the girls were living with Mr X and the Council assessed that they were not therefore at risk of further harm. Council 3 and the police in that area carried out an investigation into Mr Y as he was still living in that area, and Mr Y was subsequently charged with their assault.

d) Failure to safeguard

  1. The Council’s position is that, while there were numerous referrals that raised concerns about M’s mental health, there was no information that the children were at ongoing risk of significant harm or reached the threshold for child protection. M accepted parenting and mental health support and the Council was satisfied she was able to meet the children’s needs when she was well. The Council also points out that it nevertheless recommended in its S7 report that the children should live with Mr X, due to concerns about M’s mental health, but Mr X did not purse his application. The private law proceedings concluded in October 2018 with the court making a child arrangement order in favour of the mother. In my view there is no evidence of fault by the Council, whose ability to act was limited to some extent by the child arrangement order.
  2. Mr X says the following specific safeguarding referrals were not properly investigated. He says he learned of these via his 2020 Subject Access Request:
      1. A December 2017 referral from the school about one of his daughters being made to share a bed with another adult female.
  3. Mr X said he did not become aware of the school’s referral until 2020, when he obtained a document from the school which recorded a welfare concern about his daughter. The child had complained that she was being made to share a bed with a young woman who looked after her, that this was due to a lack of alternative bed and that the woman kicked her during the night. The “outcome/actions” of the document states “call MASH for advice” and says a call was made to MASH. It also says the school called the children’s mother who said she would change the sleeping arrangements. MASH is the Council’s safeguarding hub.
  4. The Council said it had no record of this referral on file but investigated the matter of the bed-sharing several months later after it was raised by the school as a concern in the private law proceedings of 2017/18. M advised the adult was a family friend who had previously acted as the children’s nanny. The social worker tried to speak to the woman concerned, but by then she had left the country. Mr X was aware of these matters, and the Council’s investigation, earlier than 2020.
  5. Mr X referred me to a Council document of 2020 in which a social worker speculated, following the children’s disclosures about Mr Y, that there could have been inappropriate touching by the woman concerned.
  6. I will not investigate a complaint about the Council’s investigation of the matter, as this would be out of time given Mr X’s awareness of the investigation in 2017/8.
  7. The Council has stated it has no record of a referral from the school on file although the school’s note, released to Mr X, states the school discussed the matter with MASH. The Council is at fault in that it failed to keep a record. However based on the evidence seen to date I cannot say the Council is at fault in that it did not investigate further at that time. The child did not disclose abuse and the school contacted her mother to change the arrangements. I do not consider there was injustice to Mr X or his daughters. The social worker’s comment about inappropriate touching was made in hindsight and is not evidence that the Council should have acted differently based on the evidence available at the time.
  1. Advice from M that one of his daughters was suffering vaginal soreness
  1. The child’s medical issues were raised by M with the Council with the suggestion that abuse by Mr X could be responsible. The social worker spoke to the child’s GP who did not report concerns and established that the problem pre-dated the child’s contact with Mr X. The Council decided on this basis that the report was designed to obstruct Mr X’s contact with his children and did not probe the matter further. 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. In this case the Council’s records provide an objective explanation for its dismissal of M’s concerns that Mr X had abused his child on a contact visit. There is no evidence of fault by the Council.
  1. Concerns raised by a social worker in 2018
  1. The documents disclosed by the Council show the social worker raised concerns in the context of the private law proceedings. These were discussed with two managers in July 2018 who decided the case should not be opened to children’s services. The record does not explain the reason for the managers’ decision. This is fault by the Council, in that the reason for the decision should have been recorded, however there is no evidence of injustice to Mr X or the children. The case could have been re-opened at any time, should concerns have come to light. In the event the children were moved out of the council area the following year.

e) The Council provided incorrect information to the police, which resulted in the police returning the children to their abuser. The Council then concealed this fact

  1. Mr X recently learned from the Metropolitan Police that its officers were in touch with the Council in December 2019 during M’s removal of the girls from their school and that the Council advised the police it could not offer guidance as “the children had not long been residing in [the Council area].” He says that had the Council advised the police of the safeguarding concerns about M the police may have stopped the children returning to their abuser.
  2. The Council says it has no record of contact with the police. However, it said the police did speak to Council 3 and were aware of concerns about the private fostering arrangement. As the Council has no record of contact with the police it is not possible to make a finding on this complaint.

f) The Council has failed to investigate his complaints adequately

  1. The Council did not deal with Mr X’s complaints using its corporate complaints process or the three-stage statutory process for complaints about children’s services. It said it did so as Mr X had threatened to bring legal action in future – though he had not issued a formal letter before action - and had requested compensation. The Council instead referred Mr X to the Council’s insurers which entered into correspondence with him. This is fault by the Council. It has accepted it could have dealt with the complaint in tandem with the legal correspondence and said it is reviewing its process to ensure clarity about what should happen in cases where there is a perception legal action will accompany a complaint.
  2. The Council also said it did not address the complaints as it believed them to be out of time. It said it accepted my view that some of Mr X’s complaints were based on information only made available to him via a Subject Access request but felt the “main substance” of the complaint related to events he was aware of in 2017 and 2018.
  3. Finally, it said it did, nevertheless, try to address Mr X’s complaints via correspondence. A senior manager also carried out a paper review while a second senior manager offered to meet with Mr X to consider any outstanding issues. Mr X did not take up this offer.
  4. The Council was at fault in its complaint handling. This caused injustice to Mr X whose complaints were managed via protracted correspondence and via an unclear process rather than via the recognised processes. The Council has agreed to apologise to Mr X for its handling of the complaint and pay him £100 to remedy the injustice caused.

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Agreed action

  1. Within one month of my final decision the Council will apologise to Mr X and pay him £100 for fault in the handling of his complaints.

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Final decision

  1. I have completed my investigation with a finding of fault by the Council which caused injustice in respect of complaint handling. The Council has agreed to apologise and pay a financial remedy.

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Investigator's decision on behalf of the Ombudsman

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