Royal Borough of Kensington & Chelsea (17 012 631)

Category : Children's care services > Fostering

Decision : Upheld

Decision date : 04 Sep 2018

The Ombudsman's final decision:

Summary: Mr and Mrs X complain of mistakes by the Council in planning the return of a foster child, Q to her birth mother leading to the child being placed in a children’s home outside the UK when the reunification failed. The fault found would not have led to a different outcome.

The complaint

  1. The complainants, whom I shall call Mr and Mrs X, complain the Council failed to plan properly when a child, Q, whom they were fostering returned to another country with her mother in July 2016.
  2. They also say the Council wrongly threatened to remove Q when they sought legal advice in July 2016.
  3. Mr and Mrs X say Q’s independent reviewing officer (IRO) did not act to prevent her removal.
  4. They also say social workers wrongly told their overseas counterparts they were no longer able to foster, which meant the latter did not consider them as possible carers when Q was removed from her mother in the other country.
  5. Finally, they say the Stage 2 investigation was inadequate.

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The Ombudsman’s role and powers

  1. 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)
  2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

  1. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  2. 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.

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How I considered this complaint

  1. I read Mr and Mrs X’s complaint and spoke to Mr X on the telephone. I considered the Council’s duties under the Children Act 1989 and associated regulations. I made written enquiries of the Council. I also made enquiries of the overseas authority.
  2. Although Mr and Mrs X have no authority to complain on Q’s behalf, I have exercised the discretion available to the Ombudsman to consider if she has suffered an injustice arising from any fault by the Council.
  3. I shared a draft of this decision with both parties and invited their comments. I considered those I received.

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What I found

  1. Mr and Mrs X were foster carers for Q. In 2016 Q’s mother asked for her return to move back to her home country. As the Council had no concerns about her care of Q when she asked, the Council had to return Q to her. Part of the complaint concerns the way in which the Council managed the return. After Q left the UK with her mother, the arrangements failed and the overseas authority placed Q in a children’s home, where she remains. Mr and Mrs X have since tried to have her returned to their care.

What should happen?

  1. As already stated, councils with social care responsibilities must return a child in care to its parents when they have no further concerns about potential risk to the child. Where courts make orders about a child’s care or residence, councils must follow them. Unless specifically authorised by a court, or where it has new concerns that a child may be at risk that lead it to apply again to a court, it cannot delay returning the child.
  2. Independent reviewing officers have no authority to act against a court order or a parent exercising their parental responsibility.
  3. It is a matter of natural justice that what councils tell other public bodies, in the UK or overseas, must be correct to the best of their knowledge.

What happened and was it fault?

Planning for Q’s return to her mother

  1. A court judgement of 22 April 2016 that I have seen ordered the return of Q to her mother. The judge recognised that, “There are no risk free options in this case.” Although the judge saw the Council’s plan for Q’s return, he did not order a specific programme for Q’s return.
  2. The Council at first planned for Q to return to her mother over a three-week period, with the time spent together increasing gradually and the time spent with Mr and Mrs X decreasing.
  3. Mr and Mrs X booked a two-week holiday including Q for August 2016 and the Council helped them get a passport for her in mid-July 2016. Meanwhile, Q’s father went to court to try to prevent Q from leaving the UK with her mother. The father’s application failed the day after the Council handed over Q’s new passport to Mr and Mrs X. Q’s mother then demanded Q’s return as she planned to leave the country in a few days. This meant there was not enough time to complete the three-week transition plan. It also meant the family holiday Mr and Mrs X had planned with Q could not go ahead.
  4. Mr and Mrs X say the Council was at fault for not following the three-week transition plan. They also say the Council failed to plan for transition. But there was no court order in place to prevent Q’s mother from exercising her parental responsibility and the Council had no grounds that would have allowed it to gain another order. So, it could not refuse her request and oblige her to wait for the full period or for Mr and Mrs X to take Q on holiday for two weeks. And it could not have known Q’s mother would exercise her parental responsibility the day after it handed over the new passport. It therefore acted without fault by shortening the three-week period, which was all it could do in the circumstances.

The threat to remove Q from Mr and Mrs X

  1. Mr and Mrs X sought legal advice after the Council told them of the new situation. They had no parental responsibility for Q. So, the Council would have been entitled to warn them that it might need to remove Q if they sought to prevent or delay her return to her mother. Mr and Mrs X say they were not intending to prevent or delay Q’s return. But the Council could not have known their intent. Responding to their instruction of a solicitor by warning them was not fault.

The actions of the IRO

  1. The IRO could not intervene to prevent the Council acting in accordance with Q’s mother’s wishes given the court order’s existence. And she was not obliged to give her views.
  2. Mr and Mrs X say the IRO failed to take account of their views and point out she was criticised by the Stage 3 panel during the Council’s investigation. But regardless of this, she had no duty or power to cause the Council to delay or prevent the removal of Q from the United Kingdom by her mother. I have not therefore pursued this line further.

What social workers told their overseas counterparts

  1. The original complaint as investigated by the Council was that social workers did not follow up what happened to Q after she left the UK. However, it had no power or duty to do so once she left the UK.
  2. Social workers attended a meeting in the new country in early August 2016 shortly after Q and her mother returned there. Mr and Mrs X say social workers told their overseas counterparts that they had been “blacklisted” or something similar. They supplied a copy email from an overseas social worker (A) who was at the meeting that confirmed “I unfortunately do’nt [sic] have any in written[sic] concerning them being terminated as foster carers.” The overseas authority has confirmed to me that A has since left its employment and it is not possible to know from the records it has what was said. However, Mr and Mrs X supplied an email from A to them that confirmed social workers from the Council told her that Mr and Mrs X were no longer foster carers.
  3. The Council provided an unredacted copy of an email one of the social workers sent in mid-September 2016 to A and another overseas social worker from the meeting at the beginning of August 2016. This said there was an investigation going on about serious issues involving Mr and Mrs X at the end of the placement. This must have been Mr and Mrs X’s seeking of legal advice, but the email did not specify it. Mr and Mrs X say they were not aware of any such investigation until May 2017.
  4. The Council also supplied a copy of a letter it sent to the overseas social workers in mid-October 2016. This said Mr and Mrs X “are Foster Carers with the Tri-borough fostering team”. It said, “All professionals complimented [Mr and Mrs X] on their care of [Q], as they were able to meet her emotional and social needs to a high standard”. It did not say the Council had any ongoing concerns about Mr and Mrs X.
  5. The evidence from A in the form of emails is enough for me to decide on the balance of probabilities social workers told their overseas counterparts in early August 2016 that Mr and Mrs X had either been “terminated” as foster carers or were no longer foster carers. This was incorrect, as the Council had only suspended them or was unwilling to place children with them while it carried out its investigation.
  6. Neither party accepts the paragraph above is correct. I will deal with both objections.
  7. Mr and Mrs X say they were not aware they were suspended. However, it is clear the Council was, for a period in the late summer of 2016, unwilling to consider them for any foster placement. In terms of what this meant for the overseas authority, there is no difference as that authority would not consider anyone as a potential foster carer in whom the home authority lacked full confidence.
  8. The Council does not accept the social worker told the overseas social workers Mr and Mrs X had either been “terminated” as foster carers or were no longer foster carers. It does not accept the evidence of the emails above and says it has no record of any communication that would support my finding. It also says the overseas social worker might have misunderstood what was said and points out that I have not been able to interview her. It says it is not reasonable to uphold the complaint on speculative arguments and inaccurate information.
  9. The Ombudsman’s role involves making findings on the balance of probability rather than beyond reasonable doubt. That means deciding if one version of events is more likely than another based on the evidence available.
  10. In the case of what was said by one person to another, it is often not possible to reach a decision because both parties have an interest in the outcome and there is no other corroborating evidence, either in the form of documents or independent third-party accounts. However, each case must be considered on its own merits
  11. The first thing to consider is what the parties say was said. In this case the overseas social worker was clear and her version is not the same as the Council’s. What she said supported what Mr and Mrs X claimed the Council’s social worker said. That is relevant.
  12. Beyond that, the motives of both parties are relevant. Where the two parties are a public body and a complainant, both have an interest in a version of what was said. So, even though one party claims something, he or she may have a motive for doing so. In this case, one of the parties was neutral. I therefore take from that that the overseas social worker had no reason to favour Mr and Mrs X in confirming what the Council’s social workers told her. That is relevant.
  13. There is also the issue of corroboration. In this case, there were no third-party witnesses who were in a neutral position.
  14. But there was a second email to add to the first, in which the overseas social worker stated she had nothing in writing about Mr and Mrs X being terminated as foster carers. On its own, it could mean more than one thing. But taken with her other email confirming what she was told verbally, it supports the conclusion that the Council’s social workers told her Mr and Mrs X were no longer allowed to foster.
  15. Finally, there is the issue of whether either of the parties misunderstood the other. In this case, the Council questions the overseas social worker’s understanding. However, she and her colleague conducted a meeting in English, apparently unaided by translators. Her English, while not faultless in the emails I have seen, appears advanced.
  16. Having carefully considered each of the above, I cannot be certain what was said. But that is not necessary, as my role is to decide whether one version of events is more likely than another. I therefore find the Council at fault.
  17. I do not, however, find any injustice flowed from this fault, which I explain in the section on injustice later in this statement.

The Stage 2 investigation

  1. This investigation was the second stage of the three-stage statutory process laid out for complaints by or on behalf of children about social care.
  2. The third-stage panel was split on the matter of whether the second-stage investigator had provided enough information for them to decide the complaint. They recommended the Ombudsman consider the best way forward.
  3. The only point of complaint where I have had to had to go beyond what the Stage 2 investigator checked is in asking the overseas authorities what social workers told them. However, I note that my finding of fault came from emails that Mr and Mrs X supplied, not from the overseas authority directly. Mr and Mrs X have shown that they provided the same emails to the Stage 2 investigator. However, I do not consider his investigation inadequate just because he did not reach the same conclusion as me or follow the same methods. He decided not to pursue overseas enquiries. It was not immediately obvious to me that I should do so. The fault I found was not immediately obvious. And it is significant that the fault found did not cause any injustice to Q or Mr and Mrs X.
  4. I note the investigation took too long and that the Council took 14 months to complete a process designed for a maximum of six months. But as there is no injustice arising from the fault I have found, I do not find any injustice arising from the delay in complaint handling. Mr and Mrs X take the view the delay in complaint handling caused them injustice.

Why there was no injustice arising from the fault

  1. When Q’s mother could not care for her, the overseas authorities would not have seen returning her to Mr and Mrs X as an option. The overseas authorities would have been unlikely to return her regardless of whether the Council had deregistered Mr and Mrs X or if there was any question over their suitability. This is because the Council had told the overseas authorities there was an investigation going on into their actions. And the overseas authorities would have been likely to take some time before they reached any decision to move a small child internationally again.
  2. On the balance of probabilities, I do not find the overseas authorities would have made any decision about whether to return Q to the UK before the Council sent its letter in mid-October 2016 about Mr and Mrs X as foster carers. For the same reason, I do not find that the social workers’ error caused any injustice to Q or Mr and Mrs X in the form of preventing Q’s return to Mr and Mrs X’s care before mid-October 2016.
  3. It is significant in finding that there was no injustice to Q, that, two years after the events of this complaint and aware that the Council has no concerns about Mr and Mrs X as foster carers, the overseas authorities have not returned Q to the UK away from the country of her mother despite the Council making it clear that they have no concerns about the standard of care provided by Mr and Mrs X.

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Final decision

  1. I uphold the complaint about what social workers told their overseas counterparts, but I do not recommend a remedy as this caused no injustice. I do not uphold the remaining points of complaint.

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Investigator's decision on behalf of the Ombudsman

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