Summary: Mr and Mrs X complained about the Council’s failure to accept some of the findings of a children’s statutory complaints stage 3 review panel. The Council was at fault in the way it removed two foster children from their care. The Council has already apologised which is sufficient to remedy the injustice its actions caused. It should also review its procedures to ensure it acts in line with legislation in future. There was no fault in the support the Council provided the couple prior to the children’s removal.

The complaint

1. Mr and Mrs X complained the Council failed to accept the findings of the stage 3 review panel in relation to their complaints about the placement and removal of two foster children. The findings related to:
• the support the Council provided them when they asked for help with the children; and
• the procedures followed by the Council when it removed the children from their care.
2. Mr and Mrs X also complain the Council took too long to deal with their complaint.
3. Mr and Mrs X say the Council’s actions have caused them significant emotional and financial distress.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I considered the information provided by Mr and Mrs X. This included correspondence with the Council and information about the two children.
8. I made enquiries of the Council and considered the information it provided. This included the stage 2 investigation report, stage 3 panel findings and the adjudication letters, the minutes of the planning meeting held on 8 February 2018 and Mr and Mrs X’s case records.
9. I wrote to Mr and Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Legal and administrative background

Statutory children’s complaints procedure

10. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services:
• stage 1 – local resolution by the service area. The council should complete this within 10 days or 20 days for complex cases;
• stage 2 – investigation by an investigating officer (IO) and independent person (IP). Stage 2 must take no longer than 25 days from when the complainant asks for the complaint to go to stage 2. The council may extend the investigation to 65 days for complex cases. These timescales include the adjudication stage; and
• stage 3 – consideration by an independent review panel which may make further recommendations. The council has 30 days to call and hold a review panel and a further 20 days to respond to the panel findings.
11. During the adjudication process, a senior council officer acts as Adjudicating Officer (AO) and considers the complaints, the investigation’s findings, conclusions and recommendations, the independent person’s report and the complainant’s desired outcomes.
12. The AO must write to the complainant and include details of whether they agree or disagree with each of the investigation’s findings.
13. If a council has investigated something under the children’s social care complaints procedure, we would not normally reinvestigate it. However, we may use our discretion to do so and we may also look at whether a council properly considered the findings and recommendations of the independent investigation.

Looked after child

14. A looked after child is any child who is subject to a care order or accommodated away from their family by a local authority. A looked after child may be voluntarily accommodated under section 20 of the Children Act 1989 or may be the subject of a legal order such as a care order under section 31 of the Act.

Allegations against foster carers

15. The Government has issued National Minimum Standards for fostering services. In this complaint, the Council is the fostering service. Standard 22 sets out how fostering services should handle allegations and suspicions of harm by foster carers.
16. Standard 22.10 says, “Fostering services should ensure that a clear distinction is made between investigation into allegations of harm and discussions over standards of care. Investigations which find no evidence of harm should not become procedures looking into poor standards of care - these should be treated separately.”

Removing children from a foster placement

17. In March 2015, the Government issued statutory guidance under the ‘Children Act 1989 Guidance and Regulations: Care Planning, Placement and Case Review’. This states that, where a council wishes to terminate a placement, it must carry out a review of the child’s case and ensure that the views of all people have been heard, including the foster carers if appropriate.
18. The Guidance also says a council should not move a child unless it is clearly in the child’s best interests, the decision has taken into account the child’s wishes and feelings and the move is properly planned. The exception is when remaining in the placement is clearly impractical, or significantly compromises the welfare of others in the household.
19. In a case R (on the application of Bewry) v Norfolk County Council [2010] EWHC 2545 (Admin), the Court decided, on the particular facts of the case, that no reasonable authority could proceed with a decision to terminate a foster placement without at least telling the foster carer that this is what it would be considering.

Key events

20. Mr and Mrs X began fostering two siblings, Child Q and Child Z, in June 2016. They also have a child around the same age as the foster children.
21. On 1 February 2017, the Council carried out an assessment which concluded the children should remain together in any placements.
22. On 15 February 2017, the Council’s foster panel approved Mr and Mrs X as long-term carers for the two children.
23. The family moved to a new house in November 2017. Mr and Mrs X reported Child Z found the move difficult and he began to demonstrate challenging behaviour. Child Z made an allegation against Mr and Mrs X which the Council investigated as a safeguarding concern. The Council concluded no further action was required because Child Z had not reported an actual event and he had made similar accusations against his birth parents in the past.
24. On 28 December 2017, Mrs X phoned the children’s social worker (SW1) and said they were struggling to care for Child Z because of his behaviour.
25. Mr and Mrs X asked SW1 to provide immediate respite care for Child Z. SW1 visited the following day to discuss the situation. Mr and Mrs X felt only Child Z needed respite care and Child Q should remain with them. However, the Looked After Children Team who case managed the foster placements, said both children should have respite together, in line with the assessment from 1 February 2017.
26. On 30 December, the Council arranged to take Child Z out for one hour.
27. On 1 January 2018, Mrs X was admitted to hospital. During the two days she was there, a social worker from the fostering team (SW2) offered Mr X support with the children. Mr X declined this because he and Mrs X had decided to use support from a Council specialist team (the Team) who provided psychological support to looked after children.
28. On 3 January another fostering team social worker (SW3) offered support.
29. On 7 January, SW1 visited the children at school to speak to them about their views of their placement.
30. On 8 January, Mr and Mrs X, SW1 and SW2 met with the Team who agreed to provide the family with support. The first appointment was scheduled for later that month.
31. On 15 January, SW2 carried out a home visit. At that visit, Mr and Mrs X said they would continue their engagement with the Team.
32. On 23 January, Mrs X contacted SW1 and said they could no longer cope with Child Z. On 24 January, Mr and Mrs X asked for help from the Council’s emergency team. On 30 January SW2 visited them to discuss the situation and to discuss respite care.
33. On 31 January, the children’s school contacted SW1 about concerns raised by Child Q. The Council spoke to Child Q who said Child Z’s bedroom was empty, Mr and Mrs X had made him stand by the wall in the lounge so they “could keep an eye on him”, had not allowed him to have cake when they did and had also removed his bedroom door handle.
34. Twice at the beginning of February, Mrs X contacted the Council about Child Z. Mr and Mrs X asked the Council to provide Child Z with a respite placement for several weeks.
35. On 8 February, SW1 contacted Mr and Mrs X and said they were looking for a respite placement for both children. Mrs X was unhappy with this as she felt only Child Z needed respite.
36. The Council held a planning meeting later that day. The minutes showed concerns about Mr and Mrs X’s attitude towards Child Z and whether they were able to care properly for the child. The minutes said Mrs X had told the social worker that Child Q would be removed for respite “over my dead body”.
37. Officers at the planning meeting decided to remove the children from Mr and Mrs X’s care the next day. The Council made this decision because it wished to reduce the trauma to the children and because of concerns over how Mrs X would react.
38. The Council removed the two children straight from school the next day, on 9 February. SW2 telephoned Mr and Mrs X later that day to tell them what had happened. On Monday 12 February, SW2 visited Mr and Mrs X and also had a conversation with them on 16 February.
39. A meeting to discuss the concerns raised by Child Q through the school on 31 January was held on 20 February. This was attended by the social workers, the school, the Council officer with corporate responsibility for the children, and managers from the fostering and children’s care services. The meeting concluded the new placement would continue whilst the children’s care plans were updated.
40. On 21 February, SW2 visited Mr and Mrs X to go through the allegations made by Child Q. Mr and Mrs X stated they were all either untrue or were a misunderstanding.
41. On 30 April a further meeting was held. It was concluded the allegations made against Mr and Mrs X were unsubstantiated. A meeting held by the fostering and children’s teams shortly after decided the children should not be returned to Mr and Mrs X.
42. SW2 visited Mr and Mrs X on 1 May and said the children would not return to their care. SW2 explained the reasons why. Mr and Mrs X disagreed with these and said they would challenge the decision.
43. The children remain in a different placement. The Council has provided evidence from the new foster carers, the school, the Team and the children about events whilst they were living with Mr and Mrs X which I have taken into consideration in my investigation. This information cannot be shared because the children, or the persons who have parental responsibility for them, have not given their consent. Mr and Mrs X are no longer able to give consent on behalf of the children.

Complaints process

44. On 14 February 2018, Mr and Mrs X made a complaint at stage 1 of the children’s statutory complaints process. This included the following:
• the Council failed to provide them with support when they asked it to in December 2017 and January 2018; and
• the Council acted with fault in the way it removed the children on 9 February 2018.
45. The Council responded on 7 March 2018 and said it carried out an immediate removal of the children from school to lessen the trauma, because of Mrs X’s refusal to allow Child Q to go for respite and because of concerns raised by professionals, particularly around Child Z’s care. The Council apologised for not updating Mr and Mrs X promptly after it removed the children.
46. Mr and Mrs X stated they were dissatisfied with the stage 1 outcome and said they would send the Council their stage 2 complaints after 20 March. Mr and Mrs X contacted the Council with their stage 2 complaint on 25 April.
47. The Council appointed an independent officer (IO) and an independent person (IP). The IO contacted Mr and Mrs X to arrange a meeting with them. Because of Mr and Mrs X’s work commitments, the meeting took place on 25 May 2018. The IO finalised the statement of complaint on 31 May and on 8 June, Mr and Mrs X signed and returned the complaint statement.
48. The IO published their report on 7 September 2018. This confirmed they had spoken in detail to the officers involved in the family’s case and had inspected the case files.
49. The IO came to a finding on each complaint and:
• upheld 6 complaints;
• partially upheld 2 complaints; and
• did not uphold 17 complaints.
50. The IO did not uphold Mr and Mrs X’s complaint that the Council did not support them sufficiently from 28 December 2017 to 8 February 2018. The IO concluded that “the evidence shows that overall, a reasonable level of action was taken to try and help the foster carers”.
51. The IO also did not uphold Mr and Mrs X’s complaint that the criteria of immediate significant risk to either of the children at the point of removal was not met. The IO said "whilst in principle the actual allegations did not amount to a risk of immediate and significant [harm], the working relationship between the foster carers and the services had become strained to the point where an investigation of those issues with the children still at home would have simply heightened the crisis… the decision to remove the children was justified".
52. The IO did however uphold Mr and Mrs X’s complaint that the removal of the children was implemented contrary to good practice. The IO stated the method “was an unusual and confrontational step with consequences ...for the children... and my view is that there should have first been a professional conversation with the carers... the removal should have been handled better”.
53. The IO made a number of recommendations relating to service improvements and Mr and Mrs X’s role as foster carers.
54. On 7 September 2018, the Adjudicating Officer (AO) wrote to Mr and Mrs X. The AO agreed with the findings and recommendations of the IO.
55. Mr and Mrs X remained unhappy and on 18 September, they asked for the Council to consider their complaints at stage 3 of the complaints process. The Council spoke by telephone with Mr and Mrs X on 28 September to discuss the next stage.
56. The stage 3 panel arranged to meet on 7 November 2018. However, Mr and Mrs X had to cancel the panel due to work commitments.
57. The panel was held on 21 November 2018 and it wrote to Mr and Mrs X with its findings on 23 November.
58. In relation to the complaints relevant to this investigation, the Stage 3 panel made the following findings:
• it found that although the Council made offers of support, no tangible action was taken to alleviate the family’s stress. It therefore overturned the IO’s finding on this matter and upheld this complaint; and
• it was unable to find evidence in the IO’s report to confirm the threshold of immediate, significant risk was met. It said “Overall, the Panel find that this was a matter for careful management, and not dramatic action”. It therefore overturned the IO’s finding and upheld this complaint.
59. The stage 3 panel supported the stage 2 recommendations and made a number of additional ones.
60. The Council wrote to Mr and Mrs X on 19 December 2018 and stated it disagreed with the stage 3 review panel where it decided to overturn the stage 2 findings. However, the Council acknowledged the consequences of its actions on Mr and Mrs X where it accepted it had acted with fault and apologised for the distress this caused.
61. Mr and Mrs X remained unhappy and complained to the Ombudsman. During my investigation, Mrs X denied using the phrase “over my dead body” in relation to the removal of Child Q for respite. Mr X said he did not recall the Council offering him support while Mrs X was in hospital. In addition, Mr and Mrs X said they made numerous calls to the Council for help which the Council did not respond to.

My findings

Support provided by the Council from 28 December 2017 to 8 February 2018

62. If a council has investigated something under the children’s statutory complaints procedure, we would not normally re-investigate it. However, in the case of the support provided to the family between 28 December 2017 and 8 February 2018, there were divergent views at the different stages of the complaints process. For that reason, I have considered this aspect of Mr and Mrs X’s complaint.
63. The stage 2 investigation found the level of support was reasonable and explained its reasons why. The stage 3 review panel disagreed, saying no tangible actions were taken by the Council. At the stage 3 adjudication stage, the Council did not accept the stage 3 panel’s decision but even so, agreed to partially uphold the complaint.
64. The case notes record social workers were in regular contact with Mr and Mrs X between 28 December and 8 February. They carried out three home visits and attended a meeting with Mr and Mrs X with the Team during this period. The children were taken out by staff from the Council for a short period on one day. Officers were not initially in favour of respite but later changed their view. This change in approach was not fault but a result of emerging events. By February 2018, SW1 had identified a respite placement.
65. There was no fault in the level of support provided by the Council or its engagement with Mr and Mrs X in the six weeks between the end of December and the beginning of February.

Removal of the children

66. The Council made the decision to carry out an immediate removal of the children from school without giving them or Mr and Mrs X prior notice.
67. Guidance states that when a foster child is to be removed by the Council, and there is no risk of immediate harm, the move should be planned. The Council should also discuss the removal with the foster carers before it takes place and work with the children to reduce the distress the move will cause.
68. The Council concluded in the complaints process that there was no risk of significant and immediate harm to the children. Despite this, they did not uphold Mr and Mrs X’s complaint about the removal of the children without notice. This is in direct contradiction to its own statements and it is fault.
69. As part of my investigation I have looked at the Council’s actions when it removed the children on 8 February 2018.
70. There is no evidence to indicate the Council needed to remove the children immediately because they were at risk of significant harm. This is because:
• the initial allegations made by Child Z took place on 20 December, but the Council decided to take no further action;
• a second set of allegations were made by Child Q on 31 January. These related in the main to challenging behaviour by Child Z and did not indicate the children were at risk of immediate harm;
• the planning meeting minutes recorded a number of issues with Mr and Mrs X, but none of these constituted an immediate risk of harm to the children, taken either separately or cumulatively; and
• at the planning meeting, it was agreed the children would be removed for a week’s respite whilst the Council decided whether they should return or not to Mr and Mrs X. Therefore, the reason for the removal was not because of concerns about the children’s immediate welfare but because the Council wished to make decisions about their long-term care.
71. The Council failed to act in line with statutory guidance when it did not distinguish between investigation into allegations of harm and discussions over standards of care. This led to it failing to follow the statutory guidance for the removal of foster children. This is fault.
72. The evidence specified in paragraph 43 of this decision statement which was provided by the Council supports its decision to remove the children from the care of Mr and Mrs X. The Council has already acknowledged it was at fault in the way it removed the children and has apologised to Mr and Mrs X for the consequences of these actions. This is sufficient to remedy the injustice caused.

Complaints process

73. The Council took 15 working days to complete the stage 1 investigation. This is within the 20 working days allowed by the statutory guidance.
74. For complex cases, the Council should complete its Stage 2 investigation within 65 working days, or 13 weeks. The investigation took 13 weeks from the date the complaints were signed off by Mr and Mrs X on 8 June until the IO published their report and the adjudication officer wrote to Mr and Mrs X on 7 September.
75. There was a slight delay at stage 3. However, these were not as the result of the Council’s actions but because of delays resulting from Mr and Mrs X’s work commitments.
76. There was no fault in the time taken by the Council to complete the three stages of the complaints process.

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Agreed actions

77. Within three months of the date of the final decision the Council has agreed to:
• review its policies and procedures to ensure it acts in line with legislation and guidance when removing foster children from placements; and
• provide the Ombudsman with evidence that it carried out the stage 2 and stage 3 recommendations.

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Final decision

78. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman