London Borough of Croydon (19 008 497)

Category : Children's care services > Fostering

Decision : Upheld

Decision date : 22 May 2020

The Ombudsman's final decision:

Summary: Mr B complained the Council wrongly treated his care of his great-niece as a private arrangement when the Council was involved in setting it up. The Council failed to explain the nature of the arrangement and its financial implications and wrongly referred to it as a private fostering arrangement which caused Mr B confusion. However, the Council was not at fault for deciding the arrangement was a private family arrangement or for deciding it had no power to accommodate Child A under section 20 of the Children Act 1989. An apology and reminder to officers is therefore satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Mr B complained the Council:
    • wrongly treated his care of his great-niece, whom I will refer to as Child A, as a private fostering arrangement when the Council took part in setting it up; and
    • wrongly refused to pay him the full fostering allowance or any financial support.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  2. 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

  1. As part of the investigation, I have:
    • considered the complaint and Mr B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • considered Mr B’s comments on my draft decision; and
    • considered the Council’s comments on my draft decision.

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What I found

The Children Act 1989

  1. The Children Act 1989, section 17, states 'children in need' are children who:
    • need Councils to provide them with services so they can achieve or maintain a reasonable standard of health or development; or
    • need councils to provide them with services to prevent them suffering significant or further harm to health or development; or
    • are disabled.
  2. Councils can provide a range of services including financial support to children it has assessed as being ‘in need’.
  3. The Children Act 1989, section 20, states councils have a duty to provide accommodation to any child in need in their area who requires it as a result of:
    • there being no person who has parental responsibility for the child;
    • his/her being lost or having been abandoned; or
    • the person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care.
  4. Where accommodation is provided under section 20, the arrangement is a voluntary one. A local authority may not provide accommodation under this section for any child if any person who has parental responsibility for that child is willing and able to provide accommodation for them (or arrange for accommodation to be provided for them) objects to that arrangement. Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
  5. The Children Act 1989, section 22, requires councils to firstly consider a placement with parents, then family and friends who are willing and able to act as foster carers before considering unrelated foster carers.
  6. If the council makes arrangements for a child to be accommodated by someone other than its parents, it must provide financial support to maintain the child in the form of a fostering allowance as well as practical support to the 'looked after child'.

The Council’s family and friends’ carers policy

  1. This says a family group conference should be held:
    • if a parent or the person with parental responsibility asks the Council to provide accommodation for a child or
    • when a decision is made to start care proceedings.
  2. The policy says the family group conference will discuss and plan for the child's future. It goes on to list the range of outcomes from the meeting which are:
    • informal placement with a family member where the financial responsibility for maintaining the child remains with the person who has parental responsibility. The child is not deemed looked after;
    • private fostering;
    • immediate or emergency placement by the local authority with a connected person where the child placed is treated as a looked after child;
    • immediate placement with a local authority or independent fostering agency carer while a connected person is identified and assessed;
    • placement of a child or young person with a connected person under regulation 24.
  3. The policy says one longer term option is for a special guardianship order which can be applied for with or without support of the council or the parent of the child after the child has been resident for a year. It says the Council will complete a report for the court. It says under a special guardianship order although parental responsibility continues to be shared by the carers and the child’s parents the carers can make a final decision and that order lasts until the child is 18 or unless it is varied or discharged. It says in the report the council completes for the court it must outline the support plan for the child and the carers which may include financial assistance either as a one-off payment or as a regular payment.

Case law on family and friends care arrangements – the Southwark judgement

  1. A private family arrangement, sometimes called an informal family arrangement, occurs when a close relative has agreed with the parent to take on the care of their child. Under such an arrangement there is no right to any financial support from the council but if the child is a 'child in need' a council could provide support under section 17 of the Children Act 1989. Councils do not supervise private family arrangements.
  2. The courts have looked at whether an arrangement for a child to live with a relative or friend was truly a private arrangement. The Court said where a council takes a major role in making arrangements for the child to be fostered it is likely to conclude it is acting under its duties to provide the child with accommodation. If the council is simply facilitating a private arrangement the Court said councils must make it clear to all parties that those holding parental responsibility for the child were responsible for the financial arrangements to care for the child. (London Borough of Southwark v D [2007] EWCA 182)
  3. In the Southwark judgement Lady Justice Smith said:
    • “If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all.”

Special guardianship

  1. Some family and friends carers decide to go to court (sometimes with the help of a council) to gain a Special Guardianship Order. This is more secure and leads to more support from councils than a Child Arrangement Order. A special guardian can ask the council for support including a Special Guardianship Allowance, which is means tested. The council must review this at least annually and it can be removed.

Background

  1. Until 2016 Child A was living with her mother. Child A had some contact with her father who paid regular amounts to the mother. The Council had not had any significant involvement with the family.
  2. In 2016 Child A’s mother died suddenly, although she had been ill for some time. At that point Child A began staying with a friend of her mother’s while the family discussed the care arrangements for her. Child A’s grandmother was the instigating factor for discussions about Child A’s care. The Council became aware of the case and decided to carry out a child in need assessment to support the family making a proper arrangement. The documentary records show a social worker visited the grandmother who explained a family member would care for Child A (not Mr B at this point) and they would be holding a family meeting to discuss the plans further. The Council noted in correspondence with a local Councillor though the father had parental responsibility for Child A and could exercise his rights.
  3. As part of its assessment the Council visited the grandmother. Mr B was present at that visit. The grandmother told the social worker Mr B was ready to move into Child A’s home to care for her. The Council explained as the father had parental responsibility any decision about his daughter’s care would need to include him. The Council agreed to arrange a family group conference.
  4. Various family members, including Mr B, attended the family group conference. Child A attended and said she wanted to stay with her mother’s friend or, if that was not possible, with Mr B. Five family members/close friends put themselves forward to care for Child A, including Mr B and Child A’s father. The minutes of the meeting recorded the family chose a shared care arrangement. That is where Mr B cared for Child A Monday to Friday so she could attend school and her father had her at weekends. The notes from the meeting recorded the family wanted Child A’s father to be in her life and rebuild his relationship with his daughter with a view to them living together in the future. The notes from the meeting also recorded Child A’s father agreed to those arrangements. The Council decided to put Child A on a child in need plan so the Council could find out how she was managing with her new care arrangements.
  5. Not long after Mr B moved in to care for Child A her father began telling the Council he no longer supported the arrangements and wanted Child A to live with him.
  6. In early 2017 Mr B asked the Council for financial support as a connected carer. The Council responded in February 2017. The Council said it did not hold parental responsibility for Child A. The Council said it had not placed Child A in Mr B’s care and the arrangement had been made with Child A’s father’s consent at the family group conference. The Council said it had not accommodated Child A under section 20 of the Children Act 1989. The Council explained Child A’s father retained parental responsibility. The Council said if Child A’s father chose to care for his daughter the Council would only intervene if an assessment suggested she would likely suffer significant harm in his care. The Council said its assessment had not identified she would be at risk of significant harm in her father’s care. The Council told Mr B it did not have the power to accommodate Child A under section 20 of the Children Act 1989 without the agreement of those with parental responsibility. The Council said Mr B’s care of Child A was regulated by private fostering regulations. The Council said it would therefore not provide financial support. The Council said if Mr B chose to end the arrangement he would need to tell the father who would be expected to care for his daughter. The Council said only if the father did not assert his parental responsibility would the Council need apply to the courts for parental responsibility to receive Child A into care. The Council later suggested Mr B apply for a special guardianship order.
  7. In May 2019 the Council again suggested Mr B apply for a special guardianship order and told him the Council would pay the cost of the application. The Council explained he could apply for financial support if he obtained the order.
  8. The Council held two legal planning meetings at which it concluded the decision for Mr B to care for Child A was a private arrangement. The Council wrote to Mr B to tell him that.

Analysis

  1. Mr B says the Council should have treated Child A as a looked after child under section 20 of the Children Act 1989 which means it should have provided him with financial support. I set out the requirements of section 20 in paragraphs 5-10. As paragraph 8 makes clear, the Council can only accommodate a child under section 20 with agreement of those with parental responsibility where there is a person with parental responsibility who is willing and able to provide accommodation to the child. In this case the father of Child A had parental responsibility and was willing and able to provide accommodation to her. I therefore do not criticise the Council for not treating Child A as a looked after child when Mr B began caring for her.
  2. I have considered the legal case referred to in paragraphs 14-16. The Council now accepts this is not a private fostering arrangement. However, in this case there was a parent with parental responsibility for Child A who could have accommodated her. The evidence satisfies me the Council would likely not have had an involvement in this case if Child A had begun living with her father. I am satisfied the Council only became involved in this case because the family decided Child A should not live with her father. That was not the Council’s decision. I am satisfied the Council facilitated a family group conference only because of that decision. I am satisfied family members led the discussions about who should care for Child A and identified Mr B as a suitable person to care for her, rather than the Council. I have seen nothing in the documentary evidence to suggest the Council considered it needed involvement in discussions about placing Child A given a person with parental responsibility wanted to provide care. I therefore could not say the Council had a major role in deciding the living arrangements for Child A. Instead, I am satisfied it performed a facilitating role to allow the family to make a decision.
  3. I have seen no evidence to suggest the Council became involved because it did not consider the father of Child A a suitable carer. The evidence from the first family group conference, where it decided Mr B would take on care for Child A, also confirms this was a decision reached by the family members present. That included the father of Child A who agreed to the proposed shared care arrangements. Nothing in the notes of that meeting suggests the Council either identified Mr B as a potential carer or that it would have taken care proceedings if Mr B had not taken on care of Child A. Rather, the family group conference minutes are clear family members made the decision about the care arrangements for Child A. Those minutes also show the Council reminded the father of his parental rights and responsibilities. The Council also noted family members had suggested he rebuild his relationship with his daughter with the intention of having her in his care permanently. In those circumstances I could not say the Council took a major role in placing Child A with Mr B. Nor could I say the Council wrongly treated the placement as a private family arrangement. I am concerned though the Council referred to the arrangement as a private fostering arrangement in correspondence with Mr B which it now accepts is mistaken. That is fault and is likely to have caused Mr B some confusion. Nevertheless, the evidence I have seen satisfies me family members instigated the arrangement to place Child A with Mr B. As there was a person with parental responsibility willing to take on care of the Child A the Council had no power to accommodate her.
  4. I am aware Mr B says the Council discussed with him the option of Child A living with him before the family group conference took place. Mr B cites that as evidence the Council placed Child A with him. However, the documentary records are clear the grandmother identified Mr B as the person suitable to take on care of Child A. I am satisfied the Council organised the family group conference so family members could get together to agree the proper care arrangements for Child A. There is no evidence the Council considered the arrangements made at that meeting anything other than a private arrangement. That is particularly the case given the father with parental responsibility for Child A had made clear his willingness to care for her. That meant the Council would have had no involvement but for the fact family members were proposing an alternative care arrangement. As I have said, the Council had no power to accommodate Child A under section 20 of the Children Act without her father’s agreement.
  5. In reaching that view I am aware Mr B believes the Council assessed the father of the Child A as unsuitable to care for his daughter. However, the documentary records do not support that allegation. The documentary records refer to the family’s concern about the father of Child A not having a close relationship with her. There is also concern in the records about the father’s living arrangements. However, the Council’s assessment did not suggest it considered the father of Child A unsuitable to provide care to his daughter or that she would be at risk of harm in his care. There is no evidence the Council prevented the father providing care for his daughter. Rather, the documentary evidence shows the father agreed at the family group conference in May 2016 with the family’s proposal for Mr B to provide his daughter with care.
  6. I am concerned though the Council did not write to Mr B following that meeting to confirm the outcome and tell him it considered his care of the Child A a private family arrangement where Mr B would need to seek financial support from the father. I have seen no evidence the Council did that until February 2017 after Mr B complained. I recommended in future if the Council is involved when a family make alternative care arrangements for a child it confirm in writing the nature of those arrangements so there is no confusion about the agreement. The Council has agreed to that and says it has introduced greater scrutiny of private fostering arrangements which includes review at regular monitoring meetings where senior management oversight is provided for all new arrangements. I do not consider any remedy other than an apology appropriate in this case though. That is because I am satisfied for the Council there is no evidence it had concerns about Child A to warrant consideration of accommodating her under Section 20 of the Children Act 1989. I also do not consider the outcome would likely have been different if the Council had properly explained that to Mr B in 2016. I say that because Mr B has continued to care for Child A even when the Council made him aware it considered it a private arrangement which would not attract any Council funding. The Council has agreed to apologise.
  7. I note that from July 2016 the father of Child A repeatedly told the Council he no longer agreed to the private arrangement and wanted his daughter to live with him. From that point the Council did not have the option of providing accommodation to Child A, even if it had done so prior to that (which, in this case, it did not). That is because, as I said in paragraph 8, the Council cannot provide accommodation for a child where someone with parental responsibility is willing and able to provide accommodation for them or to arrange for accommodation to be provided for them. So, from the point at which the father began saying he wanted Child A to live with him the Council had no power to seek alternative accommodation for her. It follows Child A cannot be considered looked after and I therefore cannot criticise the Council for failing to make a financial arrangement with Mr B.
  8. I am, however, satisfied the Council has tried to help the family resolve the disagreement between Mr B and the father of Child A by providing each with funding for legal advice. I am also satisfied the Council has advised Mr B about seeking a special guardianship order which would enable him, if successful, to potentially receive financial support. I consider that action appropriate given my view the initial arrangement was a private family arrangement and the Council has no powers to accommodate Child A under section 20.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mr B for not explaining the nature of the care arrangement following the meeting in May 2016 and for wrongly referring to it as a private fostering arrangement;
    • send a memo to officers reminding them of the need to confirm in writing if it considers care arrangements for a child are a private family arrangement/private fostering agreement, outlining the financial implications of that; and
    • provide the Ombudsman with a copy of the refreshed statement of purpose it has introduced to ensure private fostering arrangements receive robust scrutiny and review.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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