Summary: Mrs C said the Council was at fault for failures during its investigation of child protection concerns about her unborn child. Mrs C’s complaint was investigated under the statutory complaints procedure for children’s complaints which upheld some of her claims. We agree that the Council was at fault for failures during the investigation. The Council has agreed to make a payment to Mrs C to acknowledge her distress. It has already made service improvements.

The complaint

1. The complainant, Mrs C, is represented by her daughter, Ms R. They say the Council was at fault for errors and deliberate maladministration during the course of an investigation into potential risk of harm to Mrs C’s unborn child, X. They say the Council:
1. Intentionally and deliberately continued to use an incorrect diagnosis of her condition,
2. Fabricated evidence and falsified witness statements,
3. Behaved unethically and unprofessionally,
4. Failed to assess Mrs C’s husband, Mr C,
5. Did not invite Mrs C to an initial child in need conference (ICINC),
6. Did not invite Mr C to the ICINC,
7. Did not explain the situation or provide adequate children’s services,
8. Falsely accused Mrs C of disengaging from the Council’s children’s services department,
9. Used falsified evidence to justify continued investigation of the family,
10. Made defamatory statements about Mr and Mrs C and Mrs C’s daughter, Ms R,
11. Influenced professionals against Mrs C,
12. Was at fault for the actions of a senior social worker who abused her position and did not meet professional standards.
13. Did not carry out an independent investigation of her complaint as required by the statutory complaints procedure for complaints about children’s services.

Mrs C says the Council’s fault caused her injustice because it caused her distress and put her to time and time and trouble.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. 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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. When a case has been considered via the statutory complaints procedure for children’s services complaints, we generally do not reinvestigate the substantive issues. The statutory procedure is designed to provide significant independence and detailed analysis of concerns raised. This means reinvestigation is neither necessary nor warranted unless there are serious and fundamental flaws in the way the case was investigated.
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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.
7. 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

8. I spoke to Ms R. I wrote an enquiry letter to the Council. I considered the evidence I had gathered and the relevant law and guidance.
9. Mrs C and the Council 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 happen

Child protection

10. Councils have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)
11. The Children Act 1989 says the child’s needs and welfare are paramount. This can be upsetting for parents but Councils have a duty to act to prevent harm. 

Duty to make enquiries

12. Under section 47 of the Children Act 1989, where a council has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, it has a duty to make such enquiries as it considers necessary to decide whether to take any action to safeguard or promote the child’s welfare. Such enquiries should be initiated where there are concerns about abuse or neglect.
13. Councils should act decisively to protect children from abuse and neglect including starting care proceedings where existing interventions are insufficient.
14. Anyone who has concerns about a child’s welfare should make a referral to children’s social care and should do so immediately if there is a concern that the child is suffering significant harm or is likely to do so.
15. The council should make initial enquiries of agencies involved with the child and family, for example, health visitor, GP, schools and nurseries. The information gathering at this stage enables the council to assess the nature and level of any harm the child may be facing. The assessment may result in:

• no further action;
• a decision to carry out a more detailed assessment of the child’s needs; or
• a decision to convene a strategy meeting.

16. Section 47 of the Act places a duty on agencies, but mainly the council and the police, to make “such enquiries as they consider necessary to enable them to decide whether to take action to safeguard or promote the welfare of a child in their area”.
17. If the information gathered under section 47 supports concerns and the child may remain at risk of significant harm the social worker will arrange an initial child protection conference (ICPC). The ICPC decides what action is needed to safeguard the child. This might include making the child a ‘child in need’ (CiN) and implementing a safety plan.
18. Where a child is in need of immediate protection, the council, or the police, must act as soon as possible after the referral if removal is required. The council can apply for an Emergency Protection Order (EPO), or the police can issue a Police Protection Order (PPO) which means they can remove the child immediately.

Child Protection Conference arrangements

19. If, following a referral and an assessment by a social worker, a multi-agency strategy meeting decides the concerns are substantiated and the child is likely to suffer significant harm, the council convenes a Child Protection Conference.
20. The Child Protection Conference decides what action is needed to safeguard the child. This may include a recommendation that the child should be supported by a Child Protection Plan.
21. After the Initial Child Protection Conference, 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.
22. The Child Protection Conference is a multi-agency body and is not in itself a body in the Ombudsman's jurisdiction.
23. The Child Protection Conference plays an advisory role. But the final decision, for example whether to place a child on a Child Protection Plan or to discontinue a Plan, is the responsibility of the council. We would generally consider it appropriate for a council to follow the recommendations of the Child Protection Conference unless there was good reason not to.

Definition of harm

24. Harm means ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another. (The Children Act 1989 31(9))  
25. Councils have a duty to make enquiries where a child is considered to be suffering or likely to suffer significant harm (the term used in the Act). The enquiries must establish the child’s situation and to determine whether protective action is required. Significant harm covers the risk of physical, sexual and emotional abuse or neglect. (Children Act 1989, section 47)

Responsibility for keeping children safe

26. Everyone who works with children has a responsibility for keeping them safe. If children and families are to receive the right help at the right time, everyone who encounters them has a role to play in identifying concerns, sharing information, and taking prompt action. (Working Together to Safeguard Children) 

Low level needs/Individual and universal services

27. Where a child’s need is relatively low level, individual services and universal services may be able to take swift action. Where there are more complex needs, the council may offer a service under section 17 (child in need) or section 47 (child protection) of the Children Act 1989.

Reasonable cause to suspect versus beyond reasonable doubt

28. When a council has concerns about a child, the law says it must investigate. It only has to have ‘reasonable cause to suspect’. This is a lower burden of proof than that used by the Police or the Courts who require evidence ‘beyond reasonable doubt’.

Social Work England role

29. The Ombudsman cannot investigate whether social workers are meeting their professional standards of conduct. Complaints of this nature should be referred to the social workers’ professional body, Social Work England.

The statutory complaints procedure for children’s complaints

30. The Children Act 1989 established the requirement for local authorities to have a formal representations/complaints procedure to deal primarily with complaints by and on behalf of children and young people.
31. This procedure is set out in the 2006 guidance Getting the Best from Complaints.
32. The process has a three-stage structure. At stage one, a council responds to a complaint. If a complainant is not satisfied, they can ask for a stage two investigation. Stage two investigations are overseen by an independent person.
33. If complainants are still not satisfied, they can request a stage three review. This is conducted by a panel which takes evidence from witnesses.
34. There is a timetable for completion of the process. Stage 1 must be completed within 10 days, or 20 days for more complex complaints. Stage two must be completed within 25 days, or 65 days in complex cases. If not satisfied, the complainant must ask for a Stage 3 review within 20 days of the Stage 2 decision. The council must convene and hold the Stage 3 review within 30 days. The review panel must issue its findings within 5 days of the hearing and the council must respond to those findings within 15 days.

What happened

35. Mrs C has lived in the United Kingdom for between five and ten years with her children. During her time in the country, there is evidence that she has had mental health difficulties and that she has attempted suicide. Her children were placed on child protection plans in 2017.
36. In 2020, Mrs C became pregnant with her British husband, Mr C. Her baby was due in November 2020. In April 2020, she attended a perinatal health clinic. A perinatal mental health nurse referred her to the Council because of her concerns that Mrs C would not be able to cope with a new-born baby without support. She passed on a report from a psychiatrist that Mrs C suffered from Emotionally Unstable Psychiatric Disorder (EUPD).
37. A Council social worker in the assessment and interventions department, Officer O, contacted Mrs C a few days later. Mrs C said she would not need support until after her child was born. Officer O visited Mrs C at home a few days later. Officer O then contacted various agencies to arrange a pre-birth assessment for Mrs C. She also requested care records from previous areas where Mrs C had lived in the UK. She also asked Mr C to visit her at her office but he did not attend.
38. In mid-June 2020, Officer O visited Mrs C at home. Mrs C wanted to give her reports saying she had post-traumatic stress disorder (PTSD) but not EUPD. She says Officer O refused to take the reports. There is evidence in the case notes that the Council was not concerned about what disorder Mrs C had, if any, but that, in social workers’ opinions, she seemed to pose a risk to the unborn child.
39. After the visit, because of her concerns, Officer O recommended Mrs C’s children be put on children in need plans and that these should be escalated to child protection plans if Mrs C’s condition deteriorated or if she disengaged with children’s services. Officer O began work on an assessment report about her view of the risk to Mrs C’s children
40. Over the next week, Mrs C contacted Officer O to say she did not need support from a children’s support worker or a social worker. Ten days later, Mrs C’s midwife contacted the Council and said Mrs C had refused her care.
41. Shortly thereafter, Officer O posted her assessment report to Mrs C. When she received it, in early July 2020, Mrs C wrote to Officer O and her manager to say the report contained errors and an incorrect diagnosis. She refused to attend any child protection meetings.
42. There was an initial child in need conference five days later. Mrs C told the Council that she would not attend while there were errors in the report. In early August 2020, the Council decided, after a strategy discussion, to hold a further conference in mid-August 2020. It decided that the unborn baby, (X), should be put on a child protection plan because of a risk of neglect.
43. At around this time, in mid-September 2020, Mrs C complained formally about the Council’s actions to date. She complained that the assessment report had contained deliberate untruths and that Officer O had been unprofessional. At around the same time, Officer O left the case.
44. A social worker from the Council’s children’s services department, Officer P, took over. Officer P went to Mrs C’s home to meet her. Unfortunately, she took an out-of-date version of the child protection plan to the meeting.

Stage one local complaint

45. The Council sent a stage one response in mid-September 2020. It apologised for delay in responding. It stated that it had tried to reduce any stress but accepted that, inevitably, parents would find such investigations stressful.
46. The Council accepted that Officer P had taken the wrong version of the child protection plan to the meeting and apologised but said the up-to-date version had been sent to the core group.

Stage two investigation

47. Mrs C escalated her complaint to Stage two of the statutory complaints procedure in late September 2020. She spoke to the investigating officer in early October 2020. Mrs C said:
1. Officer O had accepted the evidence provided by the perinatal nurse that Mrs C had EUPD without question. In fact, she had never been diagnosed with EUPD.
2. The Council had failed to invite Mrs C to conferences and ignored her request to be contacted via email or letter. When Mrs C then refused to speak to officers by phone, the Council accused her of a failure to engage.
3. The Council had fabricated evidence about Mrs C, Mr C and Ms R and then used this fabricated evidence to escalate the risk for her unborn child from child in need to child protection.
4. Council officers had repeatedly made false claims about Ms C
5. such as:

• She had been in social isolation for years,
• That she was in a low mood and had suicidal thoughts,
• That she was a victim of domestic violence,
• That Ms R had said her home was not safe for children,
• That she had EUPD.
6. That Officer O had communicated her in an unethical and threatening way,
7. That Officer O had refused to correct errors in the first assessment and had not allowed officers to carry out a further assessment,
8. That the Council had refused to amend the assessment report which contained numerous errors,
9. That officers had failed to contact Mr C and involve him in the assessment process. They had included false information about him in the report.
10. That the Council refused Mr and Mrs C’s requests for drug tests to show they were not drug or alcohol users.
11. That the Council had failed to carry out a proper complaint enquiry into the behaviour of Officer O as a senior officer had asked Officer O to explain her actions and accepted her account of events.
12. That the Council continued to rely on the incorrect information in the assessment report as the basis for its interactions with Mr and Mrs C.

48. In November 2020, Mrs C took X to another country where he remains. Mrs C returned to the United Kingdom at some point thereafter.
49. The investigator issued the stage two report in February 2021. Of the nineteen individual heads of complaint, none were upheld. The investigating officer made no determination on five points saying either that there was insufficient evidence or the alleged fault had had no effect.
50. In essence, the investigation found that, whatever Mrs C’s exact diagnosis, the Council had had legitimate concerns about the risk posed to X. Officers had not fabricated evidence and had acted in a proportionate and fair manner. It had seen no evidence that Officer O had acted unprofessionally.
51. As a result, it did not agree to Mrs C’s desired outcomes.

Stage three review

52. When the report was complete, the Council sent it to Mrs C. Mrs C was not in the country during early 2021. On her return she requested a stage three review of the stage two decision.
53. The review panel met in July 2021. At the outset, Mrs C challenged the independence of the review panel as they came from the same organisation that had supplied the independent person who oversaw the stage two investigation.
54. I have set out Mrs C’s heads of complaints below with the panel’s findings about each set out below it.

Officer O accepted EUPD diagnosis and other evidence uncritically

55. This section was broken down into four parts.
1. The panel accepted that the diagnosis of EUPD was incorrect and upheld.
2. There had been mention of historic domestic violence in the report. Mrs C said this was not relevant. The panel did not uphold this part of the complaint.
3. Officer O failed to verify the perinatal nurse’s findings and should have done. This part was upheld.
4. There had been incorrect information included in the perinatal nurse’s risk assessment. This part was upheld.

Failure to invite Mrs C to conferences, communicated with her by letter

56. The Panel considered this complaint in three parts:
1. Failure to invite Mrs C to conferences: Not upheld.
2. Ignoring request to be contacted by email or letter: No determination. No evidence that Mrs C made such a request.
3. Accused of failure to engage because of b). Not upheld.

Fabrication of evidence about Mrs C, Mr C and Ms R

57. The panel considered this in two parts:
1. Falsification of evidence: No determination reached. Panel indicated that this was not likely.
2. Causing escalation of plan from child in need to child protection: Not upheld.

Council officers made false claims about Ms C

and Ms R

58. The panel considered each claim which Mrs C said was false in turn:
1. Claim that Mrs C was socially isolated: Not upheld.
2. Claim that Mrs C had low mood and suicidal thoughts: Not upheld.
3. Claim that Mrs C was a victim of domestic violence: Not upheld. There had been no claim that she was currently a victim of domestic violence nor that Mr C was responsible for historic abuse.
4. Claim that Ms R had said the home was not safe for children. Complaint upheld. The investigating officer did not speak to Ms R but accepted the contents of the case file. Ms R gave evidence that she had not said this.
5. Claim that Council continues to claim Mrs C had EUPD: Upheld.

Unethical and/or bullying communication by social workers

59. The panel split this complaint into two parts:
1. Unethical behaviour: The panel was unable to reach a view.
2. Threatening and bullying behaviour: Upheld.

Refusal to amend the assessment report

60. The panel considered this complaint in two parts:
1. Refusal to work with professionals to amend risk assessment: Not upheld.
2. Not allowing professionals to perform new assessment: Not upheld.

Refusal to amend completed assessment report

61. This complaint was split into two parts:
1. Social workers refused to amend the assessment report: Partially upheld. Assessment reports cannot be changed but subjects’ differences of opinion should be noted and, in this case, were not.
2. Refusal to allow Mrs C access to documents: Panel did not reach a decision but made a recommendation.

Failure to involve Mr C/including false information about him in the report

62. The panel broke this complaint into four parts:
1. Claim that Mr C had used a Class A drug: Upheld. The panel accepted that this was untrue.
2. Claim that Mr C was an alcoholic: Unable to make a determination. It was not clear that the Council had claimed this.
3. Claim that Mr C had been on a child protection plan as a child: Not upheld.
4. Claim that Mr C is a vulnerable adult: Not upheld.
5. Council failed to involve Mr C in the assessment: Not upheld.

Refusal to administer drug tests

63. No determination. There was no record of such a request.

Failure to investigate complaint about Officer O

64. This complaint was split into two parts:
1. Failure to follow Council complaints procedure. Complaint upheld. The Council did not follow the correct policy and procedures.
2. Passing information to Officer O. Not upheld. This was appropriate in the circumstances.

Failure to respond appropriately to further complaint

65. The panel again split this complaint into two:
1. Failure to follow the correct procedure: Not upheld. The Council attempted to resolve the complaint informally at stage one and did so within ten days.
2. Response came from a senior officer who had spoken to Officer O and not investigated: Not upheld. This was appropriate.

Officer P’s continued reliance on incorrect assessments/reports

66. Officer P had left the Council and so the panel made no determination.

Panel recommendations

67. The panel made several recommendations:
1. The Council should provide more information to those involved in the child protection process.
2. The Council should, in future, consider how things might be improved when the relationship between a social worker and a service user is breaking down when an event such as a birth is approaching.
3. The Council should consider giving refresher training on the importance of sensitivity.
4. The Council should consider give unconscious bias training for safeguarding social workers dealing with service users facing language barriers.
5. Council should consider trying to find way forward to improve relationship with Mrs C.
68. Mrs C was still dissatisfied with the investigation. She complained to the Ombudsman.

Was there fault causing injustice?

Impartiality of panel

69. Normally, when a council has dealt with a complaint using the statutory complaints process, providing the complaints process was properly conducted, and there is no suggestion of bias, our role is limited.
70. In this case, Mrs C has complained that the stage two investigation and the Stage three review were biased in favour of the Council. She says the charity which undertook both is employed by the Council and will, therefore, make decisions in its favour. Mrs C also asked, during the stage three review, “How do we know the [Council] is not paying the panellists to work in children’s services favour?”
71. We make our decisions on the available evidence and we decide whether, on that evidence, a council is at fault. In this case, the stage two and stage three investigations were independent as is required by the law and guidance and there is no evidence to support Mrs C’s claims that either the investigation or the review panel were biased.
72. The regulations say that a stage two investigator may be an employee of the Council but should have had no involvement with the subject matter of the complaint. The process should be overseen by an independent person (who is neither an elected member nor an employee of the Council. The stage three panel should be independent. Both stage two and three in this case were, according to the relevant law and guidance, independent.
73. In assessing Mrs C’s claims of bias, I have decided whether there is evidence that the decisions made under the statutory procedure as a whole, were biased. To do so, I have reviewed the case file and read the stage two and stage three reports. I have seen no evidence of any bias as the decisions made were evidence based and defensible. Mrs C has produced no direct evidence of bias I do not, therefore, accept that Mrs C has shown sufficient evidence to show bias and therefore, I do not intend to reinvestigate.
74. Further, Mrs C says the stage three review panel was, because it came from the same charity as the independent person at stage two, bound to uphold the stage two decision. In fact, it did not. Instead, it found fault on six points, overturning the stage two findings. This is further evidence of a lack of bias.
75. It is also worth stating that, before the review, the Council explained to Mrs C that, while the panel members were linked to the same charity as the independent person at stage two, the members had had no prior involvement in the case. Mrs C chose to go ahead with the review.

Mrs C’s complaint to the Ombudsman

76. The Stage three review upheld or partially upheld the following elements of Mrs C’s complaint:
1. The Council initially accepted an incorrect diagnosis of her condition without investigation,
2. Council officers behaved unprofessionally and rudely towards her,
3. The Stage two investigation reached incorrect conclusions about Mr C’s drug use and about a statement made by Ms R, and
4. There was a failure in the complaints process.
77. I endorse the findings of fault as set out in the stage three review report. I do not otherwise uphold Mrs C’s complaint to the Ombudsman.

Delay

78. In addition, there was some delay in the statutory complaints timetable, which the Council acknowledges. However, the majority of the delay was not the fault of the Council. There was some minor fault on the Council’s part but it did not cause Mrs C an injustice.

Criticisms of social workers

79. It is not generally the Ombudsman’s role or practice to find fault with individual council employees and complaints about them can be pursued through their professional associations. I have considered this as corporate fault which is the Council’s responsibility.

Injustice

80. The Council has accepted the findings of the Stage three review and I do not, therefore, intend to make any recommendations for changes to Council processes as these should already be in place.
81. I do, though, find that the apology Mrs and Mr C have so far received is insufficient remedy.
82. There was injustice to Mrs C in that she received inadequate treatment from a Council officer. There was injustice to Mr C in that the panel found that it had been incorrectly stated in the assessment report that he had, in the past, used a Class A drug. There was injustice to Ms R in that she has taken time and trouble in supporting Mrs C. The review panel also found that Ms R had not given evidence as was stated in the assessment report. I therefore recommend that the Council should pay Mr C £300 and Mr C and Ms R £100 each for their time, trouble and distress.

Wider concerns

83. Mrs C was also concerned that the Council had wanted to remove X from her care. I have read the care notes and the case file and I have seen no evidence of any such intention on the part of the Council or any of its officers.
84. Officers were, as is their duty, investigating concerns that X would be at risk at birth. There is no evidence that they were planning any intervention other than that which they considered to be justified by the facts.

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Agreed action

85. The Council has agreed that, within four weeks of the date of this decision, providing Mrs C has provided them with the relevant contact details, it will pay her £300. It will also pay Mr C and Ms R £100 each and apologise for the fault found.

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Final decision

86. I have made a decision and closed my investigation.

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Investigator's decision on behalf of the Ombudsman