Decision : Upheld
Decision date : 22 Mar 2022
The Ombudsman's final decision:
Summary: Mr F complains about being unfairly excluded from the Council’s child protection process in relation to his son. Further, Mr F said the Council built a false narrative that he was a person who abused alcohol which ultimately led to a flawed decision that he was a risk to his son. Mr F says these failings resulted in him suffering serious emotional distress. We have identified numerous and serious failings by the Council. Specifically, the Council excluded Mr F from the child protection process, failed to share information with him in a timely manner and unjustifiably judged Mr F as a person who misuses alcohol. We consider the Council’s judgement about the level of risk Mr F presented to his child was based on procedural failings. Mr F suffered an injustice by reason of the faults and the Council has agreed to a number of remedies to address this.
- The complainant, who I refer to as Mr F, complains about being excluded and treated unfairly during the course of a child protection investigation in relation to his son. Specifically, Mr F alleges the following:
- The Council excluded him from the child protection process and did not prepare him for the Initial Child Protection Conference (ICPC).
- The Council failed to share key documents and reports with him, including, but not limited to, the conference report, a Child and Family (C&F) Assessment report and minutes of the ICPC.
- The Council drew inappropriate and unfair perceptions of his ability to parent based on a 14-year-old conviction which related to driving under the influence of alcohol. He also says the Council built a false and unjustified narrative that he was a person who abused alcohol.
- The Council ultimately made a flawed decision that he was a risk to his child.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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).
- 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).
How I considered this complaint
- I have read Mr F’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation and statutory guidance. I invited both Mr F and the Council to comment on a draft of my decision. Each of their comments were fully considered before a final decision was made.
What I found
Background and legislative framework
The Children Act 1989
- The Children Act 1989 (the 1989 Act) says the child’s needs and welfare are paramount and the needs and wishes of the child should be put first. This is so the child receives the support they need before a problem escalates. Section 17 of the 1989 Act imposes a general duty on local authorities to safeguard and promote the welfare of “children in need” in their area.
- Sections 17(10) and (11) of the 1989 Act defines a ‘child in need’ (CIN) is defined as a child who is unlikely to achieve or maintain a reasonable level of health or development, or whose health and development is likely to be significantly or further impaired, without the provision of services; or a child who is disabled. Should a local authority consider a child is in need, it can implement a CIN Plan.
- ‘Working Together to Safeguard Children’ July 2018 (‘Working Together 2018’). This is statutory guidance for local authorities and other agencies on how they should work together to assess children’s needs and make arrangements for promoting and safeguarding their welfare. It sets out the principles, processes and timescales for carrying out child protection investigations.
- Whenever there is reasonable cause to suspect that a child is suffering or is likely to suffer significant harm, there should be a strategy discussion involving local authority children’s social care (including the residential or fostering service, if the child is looked-after), the police, health and other bodies such as the referring agency. This might take the form of a multi-agency meeting or phone calls and more than one discussion may be necessary. A strategy discussion can take place following a referral or at any other time, including during the assessment process and when new information is received on an already open case. A strategy discussion should inform whether the local authority should initiate a Section 47 enquiry in accordance with the 1989 Act (s47 enquiries).
- The timescale for the assessment to reach a decision on next steps should be based upon the needs of the individual child and no longer than 45 working days from the point of referral into local authority children’s social care.
Section 47 enquiry
- The Council is responsible for ensuring s47 enquiries are carried out by undertaking or continuing an assessment. Local authority social workers have a statutory duty to lead assessments under section 47 of the 1989 Act. In some cases, children’s services will carry out single agency enquiries. In cases where a criminal prosecution is being considered, there will be joint enquiries with the police. If the information gathered under section 47 substantiates concerns and the child may remain at risk of significant harm, the social worker will arrange a child protection conference within 15 working days of the strategy meeting.
Child protection conference
- Following s47 enquiries, an initial child protection conference brings together family members (and the child where appropriate), with the supporters, advocates and practitioners most involved with the child and family, to make decisions about the child’s future safety, health and development. If concerns relate to an unborn child, consideration should be given as to whether to hold a child protection conference prior to the child’s birth. In effect, the CPC decides what action is needed to safeguard the child. This may include making a recommendation that the child should be subject to a Child Protection Plan. After the ICPC, there will be one or more Review Child Protection Conferences to consider progress on action taken to safeguard the child and whether the Child Protection Plan should be maintained, amended or discontinued.
Chronology of events
- In October 2020, the Council became involved with Mr F’s family due to an injury sustained by his son. Mr F’s son was also displaying challenging behaviours.
- Subsequently, the Council undertook basic enquiries and a Child and Family (C&F) assessment to inform whether it should initiate s47 enquiries. Concerns were raised by some members of Mr F’s family relating to his alcohol consumption, namely that he is a regular drinker and this results in arguments in the family home. Mr F was not contacted for his views and input on this issue.
- In mid-December 2020, the Council held a child protection strategy meeting and decided to initiate s47 enquiries. The record of the strategy meeting shows the Council had regard to a 2006 conviction incurred by Mr F for driving under the influence of alcohol. Further, it was noted by the Council’s social worker that Mr F’s son had reported seeing his father drinking while in the family home. The Council then formed a view Mr F was “drinking too much alcohol” and this could present a risk to his son’s emotional stability and wellbeing.
- The Council undertook s47 enquiries and, as acknowledged by the Council, Mr F was excluded from this process and he was not contacted for his views or input. Instead, the Council’s social worker only met Mr F in early January 2021, when the decision to convene an ICPC had already been made. During this initial encounter, the Council’s social worker expressed concern relating to Mr F’s drinking, though this was denied by F who said he was not currently drinking because of the COVID-19 lockdown restrictions in place.
- In addition, the document noting the outcome of the s47 enquiries also referenced Mr F’s historical conviction as being evidence of alcohol misuse and domestic abuse. The outcome of the enquiries was to convene an ICPC.
- In preparation for the ICPC, the Council’s social worker prepared a conference report. The report was unequivocal that Mr F misused alcohol and that his son was exposed to this, as well as domestic abuse being perpetrated by Mr F to his then partner. It also said Mr F had admitted drinking too much alcohol, though this is strongly denied by Mr F who told me drinking was only ever a social occasion for him. The conference report was not shared with Mr F until March 2021. However, the Council’s social worker says this, as well as the C&F report, was read to him over the telephone four days before the ICPC.
- In addition, another social worker also prepared a report (Families First report) for the Council in preparation for the ICPC. This report also made reference to alcohol misuse by Mr F and stated that it was difficult to comment on Mr F’s views due to limited contact with him. It also read that when Mr F had been present, no views as to the family situation were expressed by him.
- In mid-January 2021, the Council convened an ICPC. This determined that the threshold for significant harm to Mr F’s son had not been met and that the case could continue to be managed under a CIN Plan and with supportive strategies being implemented for the family. Mr F raised in the meeting that he had not had a lot of involvement in the process leading to the ICPC. Further, Mr F says he did not receive the minutes of the ICPC until May 2021.
Exclusion from the process
- The Council became involved with Mr F’s family in October 2020 due to an injury sustained by his child. The record shows Mr F was not responsible for the injury. However, this subsequently led the Council to undertake a C&F assessment and strategy discussion to inform whether it should initiate s47 enquiries. It was not until early January 2021 (eight days before the ICPC), that the Council’s social worker first met with Mr F in relation to the process being undertaken. When this contact happened, the decision to convene an ICPC had already been taken, including that Mr F was a person who misused alcohol. That there was no meaningful engagement with Mr F until seven weeks after the Council’s involvement was fault. I do not consider Mr F received sufficient support by the Council, nor that he was included in the process as a primary party whose views were essential to understanding the family dynamics.
- Where a child is suspected to be suffering, or likely to suffer, significant harm, the local authority is required by s47 of the Children Act 1989 to make enquiries, to enable it to decide whether it should take any action to safeguard and promote the welfare of the child. It is important that the social worker responsible for the enquiries consult widely to ensure a full picture of the circumstances of all children in the household, identifying parenting strengths and any risk factors. Further, in order to gather information about the child’s and family’s history, parents should be interviewed to determine the wider social and environmental factors that might impact on them and their child. In summary therefore, Mr F should have been contacted to ensure his views were fully ascertained.
- In this case, the Council held a strategy meeting in mid-December 2020 and decided to undertake formal s47 enquiries. It was from this point the Council was required to complete the enquiries within 15 days and produce a conference report. I have reviewed the Council’s formal responses to Mr F’s concerns he was excluded from the process. The available evidence wholly supports Mr F’s concerns and the Council acknowledge he was not included in the process as he should have been. The evidence shows the conference report was produced three working days before the deadline and that there was ample opportunity for the Council to consult with Mr F and ascertain his views. There was no reasonable excuse for this and so I find the Council was at fault and that this had the effect of undermining the accuracy and rationality of the conference report and s47 enquiries more generally.
- Shortly before the ICPC, another social worker undertook a further family assessment. This led to the Families First report which stated that it was difficult to comment on Mr F’s views due to limited contact with him and that when he had been present, no views were expressed by him. In response, Mr F told me it was not a case that he did not want to express his views, but rather he felt unable to given he felt so estranged from the process. I consider my assessment so far supports Mr F’s view that he was unable to provide sufficient input due to the exclusionary process undertaken by the Council’s social worker.
- Further, Mr F alleges the Council failed to share documents and reports with him in preparation for discussions in a timely manner. Specifically, Mr F says he was not sent the Council’s conference report leading up the ICPC, nor the minutes of that meeting. In the first instance, the Council said Mr F was unwilling to receive postal documents to the address he was residing at and that due to the COVID-19 pandemic, these could not be delivered by the social worker. However, at the same time, the Council says its social worker visited Mr F in early January 2021 to inform him an ICPC was to be convened. It also says the social worker telephoned Mr F days later to read him the conference and C&F reports and explain the ICPC process. In response, Mr F strongly denies he rejected receiving postal documents and says a single telephone call from the social worker was insufficient to prepare him for the ICPC.
- I have reviewed the Council’s records of its social worker’s contacts with Mr F during these events. The evidence shows a social worker visited him and telephoned him in early January 2021. During the telephone call, the written record (created 14 days later), states the social worker read Mr F the conference report so he was properly included and understood what to expect. I have read the conference report which is 12 pages long (and approximately 8,500 words). It contains a considerable amount of information on both complex and sensitive subjects, including making reference to various sources of information not included within the body of the report.
- I do not consider it was good administrative practice by the social worker to run through this report with Mr F over a single telephone call. Further, I do not accept, on balance, that the social worker read the whole report to Mr F given its length. This was fault by the Council and I agree with Mr F that this meant he was unprepared for the ICPC which is reflected in the minutes of that meeting. The Working Together guidance says parents must be given sufficient information to understand the purpose of the ICPC. The rationale for this is so each person in attendance can contribute to the process of the meeting and make decisions in the best interests of the child. In my view, this identified failing by the Council meant a failure to adhere to statutory guidance.
- As regards to the Council’s punctuality of sharing key documents with Mr F, the ICPC report was received by him in March 2021 (two months after its completion). Further, the Families First report was not received by Mr F until late February 2021 (one month after it completion). The C&F report was received by Mr F in August 2021 (seven months after its completion). The minutes of the ICPC were sent to Mr F in May 2021 (four months after it was held). It should also be noted that Mr F’s ex-partner received these documents earlier than he did.
- I do understand the Council’s comments relating to the COVID-19 pandemic and that this impacted on its ability to send documents. However, the Council’s social worker visited Mr F and his family only two days before the ICPC report was completed. I also see no evidence of the Council consulting with Mr F to ascertain all available methods of communication. As I said earlier, he was excluded. I believe the process was poorly coordinated which meant the Council failed to share important information with Mr F in a timely and responsible manner.
- The Council reference Mr F’s alcohol misuse as a reason for it undertaking s47 enquiries and convening an ICPC. I have read the key reports produced by the Council’s social workers to inform the process and I consider alcohol misuse by Mr F was eventually presented as a material fact and not a possible and/or likely risk. To support this, the Council made direct reference in its conference report to Mr F having been convicted in 2006 of driving under the influence of alcohol.
- I have read the Council’s case notes since its involvement with Mr F’s family. At the beginning of the process, the record documents family perceptions that Mr F visits the pub regularly during the week and is a frequent drinker. There is also reference in the early reports to the type of drink his son knows he prefers and has seen him drinking. Concerns were also flagged that Mr F and his ex-partner would argue in the evenings when Mr F returned home from the pub.
- Subsequently, and without ascertaining Mr F’s views, the Council began to reference Mr F’s drinking as “alcohol misuse” in its formal reports related to the child protection process. Further, the C&F report stated the primary cause of concern for the child was Mr F “drinking too much alcohol” and being “domestically abuse” to his ex-partner. The C&F report referenced that police information, as well as family perception (excluding Mr F), supported this view. It should also be noted that Mr F denies alcohol misuse and said that he was not drinking at the time the child protection process was being undertaken. This is recorded within the Council’s case records relating to social worker visit.
- I am concerned the Council has formed a judgement of alcohol misuse on the basis Mr F is allegedly a regular drinker and there were reports of arguments between Mr F and his ex-partner. The Council appear to have also attached greater weight to family perception when alcohol misuse was expressly denied by Mr F. This action may have been plausible had the Council’s social workers engaged with Mr F to explore this issue in further detail to test the merits of his family’s perception. However, no engagement with Mr F took place on this issue until two days before the ICPC report was completed and by this time, the decision to progress to an ICPC had already been made. In any event, the conversation with Mr F was limited to the social worker expressing concern about Mr F drinking too much which was firmly denied by him. Despite Mr F’s rebuttal, the Council’s social worker continued to report alcohol misuse by him.
- I consider it wholly unsatisfactory that there is no evidence of these issues relating to alcohol use being discussed with Mr F before this judgement was made by social workers. I consider this lack of engagement with Mr F to be procedural fault by the Council. Moreover, I fail to see the merits and coherency in the Council’s perception that regular drinking and arguments between partners amounts to a fully evidenced judgement of alcohol misuse. I therefore find fault and consider the Council’s decision-making in this respect was flawed.
- Separately, I do not consider the Council’s consideration of a 14 year old driving under the influence of alcohol conviction, which Mr F addressed through support, to be either appropriate or relevant. This was a historical and spent conviction, meaning it neither has to be disclosed or admitted by Mr F in most circumstances. Further, I see no analysis or evidence by the Council which demonstrates to me that the conviction was a relevant factor during the course of the child protection process. I therefore consider it was manifestly unfair and improper for the Council to have regard to this conviction in its assessment of presenting Mr F as someone who misuses alcohol in present day.
- Moreover, the C&F report clearly references police information to support a concern of domestic abuse by Mr F towards his ex-partner. As I understand from the Council’s formal responses to my enquiries, there is no information relating to domestic abuse being perpetrated by Mr F held on police records. I therefore consider this reference to police information in the C&F report to be fundamentally inaccurate. I consider the ordinary person reading this report would believe the police held information on Mr F relating to domestic abuse which is not the case.
Council’s risk assessment
- By law, I cannot question the merits of the Council’s decision-making absent a finding of fault. This is because decisions are best made by those within the Council exercising professional judgement. That said, I have identified a number of serious procedural failings and poor administrative practice by those exercising professional judgement. In brief, the Council’s assessment of Mr F was that his overuse of alcohol presented a risk to his child’s emotional wellbeing and stability. I have commented above that I consider this assessment was flawed. Further, Mr F was effectively excluded from the Council’s early engagement with his family, as well as the s47 enquiries. I do consider these failings prejudiced Mr F’s standing during the child protection process and his ability to provide needed input. I also believe greater weight was attached to family perception (primarily his ex-partner’s) of alcohol misuse and that there is no evidence to justify this bias.
Summary of fault
- I have identified the following failings by the Council:
- The Council unfairly excluded Mr F from the child protection process and did not ascertain his views to inform decision-making.
- Key reports and documents produced by social workers of the Council were not shared with Mr F in a timely and reliable manner.
- The Council failed to prepare Mr F for the ICPC so he could provide a sufficient contribution, contrary to statutory guidance.
- The Council unjustifiably identified Mr F as a person who misuses alcohol and failed to consider his views in this respect.
- The Council inappropriately referred to Mr F’s historical and spent conviction in supporting a view of alcohol misuse and domestic abuse.
- The Council’s judgement about the level of risk Mr F presented to his child was based on procedural failings.
Injustice to the complainant
- In brief, Mr F has told me he suffered extreme emotional distress because of the Council’s “persistent persecution and victimisation” in relation to alleged alcohol abuse. He feels the Council defamed him which resulted in him having to take time off work for stress related reasons. I believe Mr F has suffered serious harm and distress by reason of the faults identified. He has suffered an injustice.
- Importantly, I cannot now direct the Council to restart the child protection process, prepare new reports and make fresh decisions. The process has been completed and it would no longer be possible to ascertain accurate and reliable views from all relevant parties and professionals involved. That said, I do consider Mr F has suffered serious distress by reason of the identified failings. I also believe Mr F deserves the right to have the failings acknowledged by the Council and for the formal record it maintains to be amended. I have therefore made a number of improvement recommendations to remedy the injustice to Mr F.
- To remedy the fault and injustice to Mr F, the Council has agreed to perform the following actions by 23 April 2022:
- Provide Mr F a detailed written apology at a senior level which acknowledges each area of fault and injustice in this statement.
- Pay Mr F £1,000 to acknowledge the serious distress and emotional difficulty the Council’s failings have caused him. It should also pay him £100 for his time and trouble pursuing his formal complaint.
- Amend all formal reports and written records produced as part of the child protection process (including the C&F report, Families First report, ICPC report and minutes of the CPC meeting) by:
- attaching a copy of the Ombudsman’s final decision statement to each formal report and written document produced;
- including (in the header of each document on each page) that the Ombudsman has found numerous failings in the preparation and submission of this document and/or report.
- making clear reference (in the header of each document on each page) to the Ombudsman’s attached final decision statement and that this is to be read in conjunction with the document and/or report.
- The Council has expressed concern whether strict compliance with agreed action (c) is compatible with its case management system. In the first instance, the Council must attempt to seek compliance with agreed action (c). Where this is not possible, the Council will take equivalent action which demonstrates it has amended all formal reports and written records produced as part of the child protection process. Such amendments must make direct reference to failings in the preparation and submissions of documents and direct readers to this final decision statement. The Council must provide evidence to the Ombudsman it has satisfied this action.
- Provide a copy of all amended formal reports and written records to Mr F and use these for the purposes of any further review(s) of Mr F’s case.
- At a senior level, the Council will undertake a detailed review into the failings identified in this statement. This will focus on the reasons why Mr F was excluded from the child protection process and why a view of alcohol abuse was supported despite a lack of engagement with Mr F and absent available evidence. The review will inform service improvements and policy changes, as well as specific feedback to the lead social worker involved in the case.
- Additional training should be provided to the Council’s lead social worker relating to each failing identified in this statement.
- Review its information sharing procedures to ensure all parties involved in the child protection process are given timely information to prepare and provide input at key milestones (particularly the ICPC and any subsequent reviews).
- The Council’s assessment of the child protection case was subject to serious procedural fault. The Council excluded Mr F from the process, failed to share information with him in a timely manner and unjustifiably identified Mr F as a person who misuses alcohol. Further, the Council inaccurately referenced evidence of a historical conviction and was wrong to claim this supported alcohol misuse and domestic abuse. It also unfairly attached greater weight to Mr F’s family perception without any justifiable reason for doing so. Mr F suffered an injustice by reason of these faults and the Council has agreed to a number of remedies.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman