Summary: The couple complained about matters relating to the Council’s child protection involvement with their family. They said the Council provided incorrect and conflicting information throughout its involvement and failed to respond to them. We find the Council was at fault. This caused the couple significant distress. The Council has agreed to make several recommendations to address the injustice caused by fault.

The complaint

1. The complainants, the couple, complain about matters relating to the Council’s child protection involvement with their family. They said the Council provided incorrect and conflicting information throughout its involvement and failed to respond to them.
2. The couple said this has caused them significant distress and financial loss.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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

5. I spoke with Mr X about his complaint. I consider all the information provided by the couple and the Council.
6. The couple and the Council now had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

Law and guidance

7. 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. This can include placing a child on a child protection plan. (Children Act 1989, section 47)
8. 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 a police officer can remove the child immediately.

Summary of the key events

9. The Council held a child protection meeting in August 2022 with the couple’s surrogate Ms A. This was because concerns of neglect were raised by other organisations. The couple’s unborn baby (B) was placed on a child protection plan.
10. Ms A agreed to pass on the social workers details to the couple so they could be included in future assessments. The Council continued to ask Ms A to ensure this was done.
11. The couple contacted the Council in November 2022 shortly after receiving the social workers details from Ms A. They said they were willing to engage in the Council’s process. This included a home visit and police checks. The social worker explained the concerns they had for B.
12. The Council explained the usual procedure for a child being on a child protection plan would be to move to a child in need plan. But it said given the circumstances, it was being explored whether the Council’s involvement could end upon B going home with the couple. But the social worker said they would first like to complete some checks.
13. The couple sent the Council their legal surrogacy agreement. This set out the agreement relating to the pregnancy and birth arrangements. They confirmed Mr X was the biological father and said a donor egg had been used.
14. The social worker visited the couple’s home in November 2022. The notes stated the visit was positive and the social worker had no concerns. The notes also stated the social worker said if Ms A decided to keep B post-birth, the Council would have significant concerns and may need to seek an emergency protection order. The couple said Mr X would be on the birth certificate and would have parental rights. They also said their solicitor said they could apply for an interim child arrangement order.
15. The couple asked for a summary of the home visit. This was provided. In response they said:
• it was set out in the surrogacy intent document that there was no intention for B to go home with Ms A;
• in the unlikely event that Ms A did change her mind, they would seek the Council’s agreement for B to come home with them as planned as Mr X is the biological father;
• they had sought legal advice on this and would seek an immediate court order to that effect if needed; and
• the Council had previously said it may wish to continue to have some level of involvement after birth. They asked what the rationale for that decision would be given the concerns are about Ms A.
16. A pre-birth and proposed discharge plan was completed in December 2022. It said Ms A would be the legal parent at birth and therefore could choose to keep the baby in her care. It said:
• the social worker was to be informed when Ms A gives birth;
• a discharge planning meeting would take place prior to B being discharged;
• in the event Ms A changed her mind, the Council would need to consider the appropriate actions to safeguard the baby. It said it may decide to use police protection powers;
• it was understood that the couple had sought legal advice and would take their own action to ensure B returned home with them: and
• B would remain subject to a child protection plan until a review conference. This review would be held on 28 March 2023. Until then, B would need to be visited every 10 working days as per the guidelines.
17. The social worker contacted the couple in the same month. They said a meeting was being held in early February with the child protection chair in order to discuss B being stepped off the child protection plan with no further action.
18. A surrogacy planning meeting was held in January 2023. It was discussed that Ms A held legal parental responsibility for B and if she changed her mind the Council would need to consider how it would safeguard B. It said this may include seeking legal advice and inviting police to the discharge planning meeting. It also said the police can protect for up to 72 hours should this be required. It was noted that until the review meeting the Council intended to hold in March 2023, B would need to be visited every 10 working days. It also said at this meeting it would decide whether to step B off the child protection plan.
19. The couple spoke with the social worker in the same month. They said from previous communication they thought B would be moved from the child protection plan prior to the birth. The social worker apologised if their communication had not been clear. But said this can only take place at the meeting which was due to be held in March 2023. The couple said they felt this was tarnishing their excitement of being new parents.
20. The couple contacted their solicitor who contacted the social worker in January 2023 and said:
• there were many errors in the pre-birth and discharge document;
• Mr X had not been referred to as the legal parent. Being down as the biological parent was not the same as legal parent; and
• they wanted to clarify what would happen and where B would be placed if Ms A decided to change her mind.
21. In response the social worker said it could not confirm what action it would take but said legal advice would be sought. It said it did not have any concerns regarding the couple and placing a baby with the family was always the preferred option.
22. Shortly after the social worker said they would not be seeking legal advice. They said:
• if the Council was in a position of having to seek an urgent court order if Ms A changed her mind, the Council would seek to place B with the couple;
• while this may be needed as an emergency measure, the Council had no intention of applying for an interim care order; and
• the Council would be expecting the couple to act on their legal advice to secure parental rights for B as a matter of urgency.
23. The social worker asked the solicitor what steps they would take to support the couple if Ms A refused to hand B over at birth and how immediate it would be. They also stated they had amended the pre-birth and discharge plan.
24. The solicitor confirmed what the process would be for an urgent child arrangements application in the event Ms A changed her mind. They said a child arrangements order would secure the baby in the couple’s care and confer parental responsibility. They concluded there would be no need for the Council to seek an interim care order.
25. A new social worker was allocated in February 2023. The social worker said the upcoming meeting was 28 March with the hope to remove B from the current child protection plan as B should be in the couple’s care. They said a pre-discharge planning meeting would need to be held before B could leave the hospital. But said this would be done promptly.
26. The couple emailed the social worker in February 2023. They asked for their mobile number so they would update them when the baby was born as per the plan. They also said they had emailed the social worker recently to report concerns for Ms A. This was because the carbon monoxide readings at her property were high. But they said they had no response.
27. Shortly after the couple emailed the social worker to confirm Ms A had given birth. They said the plan was for them to go home in the morning.
28. The discharge planning meeting took place the following morning. It was agreed B would be discharged home with the couple. The social worker also said they may need to visit B as B was still on the child protection plan.
29. The couple’s solicitor wrote to the Council in early March 2023. They asked the Council to end its involvement with the family as it was no longer applicable as there were no safeguarding issues.
30. The Council visited the couple at home the following day.
31. A pre-meeting discussion was held on 24 March 2023. The Council said:
• the couple should have received the social workers report five days before the meeting. It said it would raise this internally and confirmed the report would be sent by the end of the week; and
• it explained the meeting was booked for 28 March 2023 as this needed to be within a 5-week period following the birth. But said on reflection, this could have been something they brought forward in this situation and the Council would take this away as learning.
32. The meeting was held on 28 March 2023. The social worker confirmed they had addressed the concerns about Ms A’s boiler whilst she was pregnant. They said the boiler was looked at on 24 February 2023. It was noted that now B was living with the couple, the threshold for a child protection plan was not met.

Complaint to the Council

33. The couple complained in March 2023. They said:
• during the first visit the social worker admitted they did not know what they were doing and said she was ‘winging it’;
• they attended a meeting in December 2022 and made it clear B would come home with them after the birth. This was supported by the surrogacy intent document;
• the social worker said in December 2022 there would be a meeting in early February 2023 to discuss B being stepped off the child protection plan with no further action;
• at the meeting in January 2023 the social worker said there would be a meeting towards the end of March 2023 to discuss the possibility of B coming off the child protection plan. This was the first time they were aware the meeting in February would not take place;
• the social worker said B would need to be visited every 10 days which they felt was intrusive;
• the social worker said if Ms A decided to keep B in her care, the Council would need to seek further advice. This included the possibility of a police protection order to remove B from Ms A’s care;
• they were invited to comment on the draft and discharge plan which they received in January 2023. But said it contained many errors. They said it had already been circulated. The couple had concerns about this;
• once the solicitor engaged with the Council, it was agreed if Ms A did change her mind, B would be removed and placed with the couple, given Mr X’s legal and parental status;
• had no response from the social worker when they raised concerns about Ms A’s boiler;
• they were not sent the link to the discharge meeting until two minutes after it had started;
• the social worker rang them an hour before wanting to visit. At the visit the social worker agreed to look into the boiler issues;
• the deadline to receive the social workers report before the meeting in March 2023 was missed. Once the report was received, it was missing vital information such as health concerns raised; and
• they felt at times they had been subject to social services proceedings. As a result of conflicting information, the couple sought legal advice and incurred costs.
34. The Councils response stated:
• as a newborn B was extremely vulnerable. Due to this and the child protection process it was considered proportionate and important that the social worker met at their home and completed the relevant checks;
• due to significant concerns the Council needed to consider every eventuality. This included the possibility of Ms A leaving the hospital with B;
• it had no evidence to suggest any concerns were ever reported about the couple;
• at the meeting in January 2023, it was discussed the next review conference would be 28 March 2023. At this meeting it would be decided as to whether the plan could end. It was also explained that visits would be every 10 working days;
• it held no evidence to suggest the couple were told B would be placed in temporary care if Ms A changed her mind. But said there was discussions about possible scenarios. It apologised if communication was not clear;
• it did not consider the information in the birth plan to be unfair. It also said it did not raise any issued about the couple’s parenting capacity; and
• it acknowledged that the change of social worker had an impact on communication.
35. The couple stated the Council’s response did not consider all the points they had raised. They also said the Council had referred to Ms A by the wrong name.
36. In response the Council said:
• it apologised for using the wrong name;
• regardless of legal responsibility, Mr X would not have had parental rights immediately after birth if Ms A changed her mind;
• apologised if the communication about the meeting in February 2023 was not communicated correctly;
• it accepted the discharge plan should have been sent to the couple before being circulated. Once this was raised, the document was amended and re-circulated;
• the issues around the boiler were addressed by an engineer. It apologised for the communication about this; and
• it would not reimburse the couple for the legal fees and said it was their choice to seek legal advice.

Analysis

37. In November, December 2022 and January 2023 the Council considered what action it could take if Ms A changed her mind. This included seeking an emergency protection order and involving police who could use their police protection powers. The couple made the Council aware they already had plans in place in the event of this happening. This included applying for a child arrangement order.
38. The couple sought advice from their solicitor in January 2023 who contacted the Council. In response the Council said if it was in a position of having to seek an urgent care order if Ms A changed her mind, it would seek to place the baby with the couple. This is a different approach to what the Council had told the couple.
39. The Council had a duty to safeguard B and it was entitled to consider what action it could take if Ms A changed her mind. This was because it had significant concerns about Ms A. But the Council’s communication on the matter was conflicting to what it told the solicitor. This is fault. This caused significant distress to the couple.
40. The couple want the Council to reimburse their legal fees. But from the evidence seen the couple had the opportunity at the meeting held in January 2023 to clarify any concerns they may have had about where B would go in the event Ms A changed her mind. But they did not and instead sought advice from their solicitor.
41. We recognise in paragraph 38 what the Council told their solicitor and how this differed to what it told the couple. Whilst the Council did not always make it explicit that the intention was always that B would be placed with the Couple, it also never said it would place B anywhere else. If the couple had concerns, they could have raised this at the meeting before contacting their solicitor. Therefore, we could not ask the Council to reimburse their legal fees.
42. The Council contacted the couple in December 2022. It said a meeting would be held in early February to discuss B being stepped off the child protection plan with no further action. But in January 2023 the Council said there would be a meeting in March 2023 where the Council would consider stepping B off the child protection plan. In the Council’s complaints response, it said the meeting in February was to discuss whether the child protection plan could be ended without the need for a 3-month child in need plan. But this was not made clear. This is fault. This caused them significant distress.
43. The pre-birth and discharge plan was completed in December 2022. The Council sent this to the couple the following month and invited their comments. In the couple’s complaint, they said it contained multiple errors and asked why it had been circulated. In response the Council has accepted the plan should have been sent to them before being circulated. This was amended and re-circulated. The Council confirmed in its complaints response the updated document is the one the Council holds on file which makes it clear the concerns were related to Ms A only. It said all professionals were aware of this. But this did cause stress to the couple.
44. The couple contacted the newly allocated social worker in February 2023. They asked for their mobile number so they could let them know when B was born as per the birth plan. They also said they had raised concerns about the high carbon monoxide reading on Ms A’s boiler but had no response. There is no evidence to suggest the Council responded to this. This is fault.
45. The couple said the Council failed to respond to all the points they raised in their complaint. From evidence seen, the Council did fail to respond to all the points raised. The couple raised concerns about the content of the report they received before the meeting in March 2023. We would have expected the Council to respond. This caused them significant distress.

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Agreed action

46. To address the injustice caused by fault, within one month of the final decision, the Council has agreed to:
• write to the couple with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay the couple £500 to acknowledge the distress caused to them due to the fault identified in this statement. This is in line with our guidance on remedies; and
• write to the couple with a response to concerns they raised about the content of the report as stated in paragraph 45.
47. Within two months:
• by training or other means, ensure the relevant officers are aware that all issues raised in a complaint are appropriately addressed; and
• remind relevant officers of the importance of providing clear communication and responding in a timely manner.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman