The Ombudsman's final decision:
Summary: There is fault by the Council in that it failed to carry out a risk assessment before placing two children, in its care, with the complainant and her partner. This caused avoidable difficulties in the placement. The Ombudsman does not find fault in other aspects of the complaint. The Ombudsman has recommended actions to remedy the complainant’s injustice which the Council has accepted. Therefore, the Ombudsman is closing the complaint.
- The complainant, who I refer to as Ms X, says that the Council:
- failed to carry out a risk assessment in 2018 before placing two young children (B and C), in the Council’s care, with her and her partner (Ms Y), even though it knew the birth family lived some five minutes away. After the placement started, Ms X learnt of the father’s extensive criminal record and the children were eventually removed because of the father’s threats to the placement;
- failed to manage properly the safeguarding issues and risks to the children and to Ms X and Ms Y;
- that B and C were not told the truth about why they had to move; and
- that there was a lack of support for the carers.
The Ombudsman’s role and powers
- 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 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)
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended)
- 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.
- 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)
How I considered this complaint
- I made enquiries of the Council about the complaint and I sent its complaint response to the complainant. I have also spoken to Ms X on the telephone.
- I have seen Ms X and Ms Y’s fostering files and B and C’s social care records. Ms X is not entitled to see this third party information.
- The Ombudsman will not normally re-investigate the complaint if he is satisfied the Council’s complaint investigation has properly considered the complaints. However, he will consider whether the Council has properly considered the findings and recommendations of the complaint investigation and will consider whether the complainant has received an appropriate remedy for the injustice caused by the identified faults.
- I issued a draft decision statement to both the Council and to Ms X. I have taken into account their further comments when reaching my final decision.
What I found
Legal and administrative arrangements
- Family Courts can make Care Orders whereby children are placed in care of the council because of concern about the adequacy of the parents’ care, causing significant harm to the child.
- Courts can make a Placement Order alongside a Care Order, which allows a council to place a child for adoption without the parents’ consent. Once a Placement Order is made, the expectation is that the child will be placed in an adoptive placement within six months.
- Councils have statutory duties to children in care to promote and safeguard their welfare. The Care, Planning and Case Review (England) Regulations 2010 and guidance sets out how councils should manage and arrange placements.
- Children in care have an Independent Reviewing Officer (IRO) who is responsible for ensuring councils adhere to children’s care plans. They also chair the child’s statutory review, which normally takes place every six months. These are multi agency meetings where important decisions are made
- It is normally advised that children do not change schools when moving to new foster placements, wherever possible.
- In relation to the termination of foster placements, the above guidance advises councils to carry out a statutory review of the child’s case and ensure that the views of all the people concerned have been heard, unless there is an immediate risk of significant harm, requiring immediate removal.
- The Fostering Minimum Standards say that children should not normally be moved if the foster carers are willing to care for them.
- When children are in foster care, the foster carers will have their own fostering social worker, who is responsible for supporting and assessing their care. The children will have their own social worker. Both social workers should work closely together.
- Ms X and Ms Y were approved as foster carers by the Council in 2018. At this stage, there were ongoing legal proceedings in relation to B and C. The Council had considerable concern about the parents’ care of B and C and of their siblings.
- Ms X says that the Council approached them about taking B and C just before they were formally approved as foster carers. This was their first foster placement. Ms X says that the Council told her that it was hopeful the Court would make a Placement Order, enabling B and C to be placed for adoption. Therefore, the placement with Ms X and Ms Y would be short term.
- Ms X says that the Council told her that it did not have any other foster placement available, recognising also that the birth family lived some five minutes away. Ms X says that the fostering and children’s social worker said it would be a good placement for them and encouraged them to accept the placement. As new foster carers, Ms X says that they felt obliged to do so.
- The Council says that, while there was no formal risk assessment, if there had been, the placement of B and C with Ms X and Ms Y might not have been considered appropriate (because of the close proximity to the birth family). Nonetheless, the Council was satisfied that the social workers had discussed the birth family situation with Ms X prior to the placement.
- The Council is therefore satisfied that Ms X and Ms Y had sufficient information to reach an informed decision and they could have refused the placement.
B and C’s placement with Ms X and Ms Y - 2018
- The Court made a Care and a Placement Order on B and C. The children were removed from the family home. The birth family were resistant to the care plan.
- Ms X says that the Council told her that she would be entitled to see some of the reports about the birth family once the Court had made a final decision. Ms X says that she saw the psychological report on the birth father, I assume prepared for the Court hearing. Ms X then learnt about his aggressive behaviour and extensive criminal record, including numerous periods of imprisonment.
- The Council says that it is not clear how Ms X had access to this report, and this would be a breach of his confidentiality.
- The Council’s case notes record that it was hoped that B and C might be moved to an adoptive placement quite quickly. Ms X said that she and her partner would keep B and C until this point.
- Ms X says that on the first day of school/nursery, the Head telephoned to say the birth family were there. The school had to arrange for the children to be collected from the back. Ms X says that this happened periodically throughout the placement.
- Ms X’s concern about the closeness of the birth family to her address and the restrictions being imposed on them, like not being allowed into the city centre, were matters she raised directly with the fostering social worker. These concerns continued throughout the placement. B and C were also having contact with their birth family which Ms X considered was unsettling for them and not in their best interests. The birth mother was perceived to be undermining of Ms X and Ms Y’s care of the children.
- In addition, the children were having contact with their other siblings in care, which the Council expected the foster carers to arrange.
- Ms X suggested the children change schools to prevent the difficulties caused by the birth family turning up at the school gates. She says that the school also suggested this. But the Council and the IRO considered it was not appropriate to change schools when the children were likely to have a change on moving to their adoptive placement.
- The Council says that measures were put in place to manage the risks of the birth family’s proximity, and to ensure the safety of the children and the foster carers. For example, the Council agreed extra mileage costs so that Ms X and Ms Y could take the children for activities outside the area.
- Ms X and Ms Y and the children had a holiday away in the summer. They reported that the children were more settled, and Ms X and Ms Y say that they felt less anxious because they were not in close proximity to the birth family. They felt that this made a significant difference to the quality of the placement.
- There are many positive comments made about Ms X and Ms Y’s care of the children in the fostering records. The Council says that Ms X and Ms Y had expressed an interest in keeping B. But later they said that they viewed the placement as short-term.
Events of 2019
- It seems that there was interest from possible adopters, and the Council was hopeful that it had found an appropriate family. The plan was that B and C would be able to move to an adoptive placement in early 2019.
- Ms X says that B and C’s behaviour changed when they were told the Council was now looking for a ‘forever’ family for them. But they recognised the children were facing a significant change. They remained committed to caring for them until they were placed in an adoptive placement.
- In February 2019, the Council arranged for Ms X and Ms Y to have some respite care and the children went to alternative carers. The Council says that Ms X and Ms Y reported that the children were quite unsettled afterwards.
- By April 2019, the Council had identified a possible adoptive placement and arrangements were being made to progress this. Ms X and Ms Y helped in this process. The plan was that B and C would have a final farewell visit to their birth parents, called a ‘wish you well’ visit.
- It seems the chosen prospective adopters subsequently changed their minds. The Council had to readvertise the children, more widely this time as there were no adoptive placements in its area.
- In early May 2019, the Council held a Stability Meeting because of the continued concerns because of the impact the proximity of the birth family was having on the placement. The Council explored ways to support Ms X and Ms Y and it was agreed that there could be regular respite. At this meeting, Ms X referred to the birth father’s extensive criminal record.
- Later that month, the school told the Council that it thought the birth mother knew the foster carers’ address. The concern was that she might tell the birth father now that the birth father and mother had resumed their relationship. The Council says that the father’s aggression was directed to the social workers rather than to the foster carers.
The emergency ending of the placement
- Ms Y’s grandmother became very ill and Ms Y was very upset for a range of understandable reasons. Ms X says that they asked for some respite care to cope with this difficult situation.
- The Council then learnt that B and C’s birth father had threatened to take the children on the last contact visit. He had also posted this message on social media; the message was very threatening. The Council says that all contact was supervised but, in view of the birth father’s criminal history, and mental health difficulties, there was considerable concern for the children’s safety.
- In view of this, the Council decided that it had to cancel the farewell visit. The birth father was very angry, which meant the Council’s concern for the safety of the children increased. In consultation with senior managers, the Council decided that the children had to be moved from Ms X and Ms Y as an emergency. This was discussed with Ms X and it appears from the fostering case notes that she accepted that this was necessary.
- The decision to move the children as an emergency was discussed with the IRO but after the decision had been made. The IRO agreed the Council’s decision.
- The children were taken from school to the respite carers whom B and C knew.
- Ms X says that the children were told that they had to move because Ms Y’s grandmother was ill rather than because of the threat from the birth family and their proximity to Ms X and Ms Y’s home address.
- The Council says that B and C knew the respite carers and that they would be going there because Ms Y’s grandmother was ill. The Council says that the children were then told that they would have to stay with the respite carers. The Council considered it was not appropriate to tell B and C of the threat from the birth father. The Council says that the children could make sense of its explanation without being caused undue distress or fear.
- The Council arranged for Ms Y and Ms X to see the children after their move and there is evidence on the case records of the fostering social worker telephoning Ms X and Ms Y to see how they were coping. They reported missing B and C.
- The Council says that all its foster carers are automatically registered as members of two fostering networks and there is additional support available from these organisations for foster carers, independent of the Council.
- The Council says that, as a result of this complaint, it holds workshops in the Fostering Team meetings to consider risks when arranging placements and there are specific risk assessments in cases where specific areas of risk are identified.
Complaint (a) - failure to carry out a risk assessment
- This was Ms X and Ms Y’s first foster placement. They relied upon the Council to make an appropriate placement match and they accepted the Council’s reassurances that it would be possible to manage the risks, which the birth family’s proximity imposed. They were also told the placement was likely to be short-term.
- The Council says that, if it had carried out a risk assessment, it is likely the placement would not have gone ahead. Based on the evidence, which I have seen, my view is that this would have been the probable outcome. The family was well known to the Council and, in particular, the birth father’s aggressive history and mental health difficulties was a clear risk to any placement. It was also clear that the birth family opposed the Council’s care plans for their children. This would, on the balance of probability, increase these risks.
- I recognise that the Council was under pressure to find a foster placement and councils prefer to use their in-house foster carers. But the Council could have approached independent fostering agencies for a placement which was not so close to the birth family. I recognise that the Council would not have wanted to disrupt the children’s school/nursery placement. But it would have been possible for the Council to place the children further away from the birth family but still ensuring they could attend the same school/nursery.
- I recognise the Council considers Ms X and Ms Y could have refused the placement. But given this was their first placement, they were reluctant to do this and their lack of fostering experience might have meant that they did not fully appreciate the possible adverse consequences of the proximity of the birth family.
- My view is that, but for the fault initially, the foster placement with Ms X and Ms Y would not have gone ahead. They have been caused avoidable anxiety and distress as a result.
Complaint (b) - failure to manage safeguarding issues
- Ms X and Ms Y were anxious about the birth family’s proximity and about the fact that they turned up at the school periodically. Ms X also felt they were being unduly curtailed in the activities, which they could do with B and C, because of the restrictions on where they could go. It is telling that Ms X and Ms Y felt more relaxed when on holiday, away from the worry of the presence of the birth family, and this, in their view, improved the quality of the placement for them and for B and C.
- The Council tried to overcome these difficulties by offering mileage payments for travel outside the area and supporting special arrangements for the collection of the children from school. The Council recognised that the stability of the placement was strained and, in May 2019, it arranged the meeting to see what other support it could provide for Ms X and Ms Y. Respite care on a regular basis was agreed and, but for the threat from the birth father, this might have been sufficient to maintain the placement until an adoptive placement was found.
- The Council also considered the request for B and C to move from the local school. But this had proved to be a stable school/nursery placement and it was not considered appropriate to disrupt this, especially as the children would be moving to an adoptive placement and have a change of schools then.
- Overall, I consider that there is evidence that the Council considered how best to manage the risks and, while these were not sufficiently reassuring to Ms X and to Ms Y, I do not find fault on this aspect of the complaint.
Complaint (c) - not telling B and C the truth about why they had to move
- Ms X’s concern is that B and C would feel rejected by them unless they knew the real reason why they had to move. This is a legitimate concern. However, the Council has explained why the children were not told the full facts and, while it is always preferable to be honest with children (if of an age to understand), I do not find fault in the Council’s approach.
- But it is necessary that there is an explanation on B and C’s social care files about why they were not given the full facts. This is because, when older, and if they chose to see their social care files, it is important that there is a written rationale about why the Council decided it was not in their interests to be given the full reasons for the emergency move when younger.
Complaint (d) - lack of support to Ms X and Ms Y
- There is evidence that the Council tried to support Ms X and Ms Y during the placement and ensure safety even though it restricted Ms X and Ms Y’s movements and that of the children.
- After the placement ended, there is evidence of the Council trying to support Ms X and Ms Y. But, by this stage, they were quite disillusioned by the Council’s actions and so may not have been that receptive to the efforts made by the Council at this stage.
- Accordingly, I do not find fault on this aspect of the complaint.
- The lack of a risk assessment initially, which I consider would have advised against the placement, was fault. What happened after this was in consequence of the Council’s decision to proceed with the placement.
- This was a difficult first foster placement, and it was understandably why Ms X and Ms Y were anxious by the birth family’s proximity, heightened by the knowledge of the birth father’s criminal record and mental health difficulties.
- However, I do not find fault in the way the Council then tried to manage the risks of this placement.
- I also consider the Council had little other option but to move the children, as an emergency. But it should have discussed this with the IRO before the decision was made.
- Where there has been avoidable distress, the Ombudsman’s recommendation, to remedy such injustice, is symbolic and payments are normally between £300 to £1,000 depending on the severity of the injustice.
- To remedy the injustice caused by complaint (a), the Council should within two months of the final statement:
- apologise to Ms X and Ms Y for the fault identified and pay £750 for her and her partner’s avoidable distress.
- The Council has already introduced new procedures to prevent a reoccurrence of the fault in this case. So, it is unnecessary for the Ombudsman to recommend procedural improvements. But I also recommend the Council should within two months of the final statement:
- look into the circumstances whereby the birth father’s confidential information was wrongly disclosed to Ms Y to ensure that such a breach does not happen again;
- that the Council reminds social workers that they should consult the IRO (by telephone or email) before they make emergency decisions to move children (when the Council cannot use the statutory review process); and
- ensure that there is a proper written record of the reasons for B and C’s emergency move, which the children might see once old enough to have access to their social care files, and to record why the Council considered it was not appropriate to tell them the true reasons at the time.
- There has been some fault by the Council resulting in avoidable distress for the complainant. The Council has agreed the remedy. The Ombudsman has therefore completed his investigation and is closing the complaint.
Parts of the complaint that I did not investigate
- The Council has indicated that there was a data breach. I have not investigated this because it did not cause an injustice to Ms X. But I have recommended that the Council look into this to prevent future data breaches.
Investigator's decision on behalf of the Ombudsman