The Ombudsman's final decision:
Summary: Mr X complained that the Council did not deal with allegations made against him, as a foster carer, fairly. We found there was fault in the Council’s decision. The Council agreed to apologise, make a payment to Mr X and reconsider its decision.
- Mr X complains the Council did not deal with allegations made against him fairly while he was a foster carer. He complains the Council did not act in accordance with its own policies. Mr X denies any harm came to the child concerned and he says there was no evidence to support the decision the Council came to. He also says the police considered that a social worker interviewed the child in a leading way. Mr X also says the Council refused to consider a complaint he made about the matter.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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 spoke to Mr X and considered the information he provided. I asked the Council for information and I considered its response to the complaint.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Section 47 of the Children’s Act
- If a council suspects that a child in their area is suffering, or is likely to suffer significant harm, Section 47 of the Act requires the council to make any enquiries necessary to investigate. It should then decide whether there is a need to take any action to safeguard the child.
Northamptonshire Children’s Trust Procedures
- The Council delivers its social care services for children through a trust. The trust’s policies and procedures include a chapter on Allegations against Foster Carers.
- The Fostering Allegation Policy states that on receipt of an allegation of harm to a child in foster care it should be reported promptly. The team assessing the allegation should then follow the procedures in the Council’s Child Protection Manual.
- The Child Protection Manual defines abuse as “A form of maltreatment of a child. Somebody may abuse or neglect a child by inflicting harm or by failing to act to prevent harm.” It defines emotional abuse as “the persistent emotional maltreatment of a child such as to cause severe and persistent effects on the child's emotional development”. It provides numerous examples of what emotional abuse may involve.
- The policy states children should be seen and listened to and included in the assessment process. It sets out various steps the Council may take to consider allegations further. These include holding strategy discussions and carrying out a Section 47 child protection investigation.
- The Council’s Fostering Allegations Policy says a Strategy Meeting should take place within two days and factors it should consider include the nature of the allegation, the reliability of the source, background information about the foster family, the safety of children in the placement and what steps should be taken while the investigation is carried out. The policy states a Joint Evaluation Meeting will consider the progress of Section 47 enquiries and any police investigation and it will be used to plan the response to the allegations.
- The policy states that social workers and their managers should follow the guidance in “Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses”. That guidance states as far as possible, questioning should be open ended or specific-closed, rather than forced-choice, leading or multiple. Forced-choice or leading questions should only be used as a last resort. It notes that where leading questions are considered necessary, the evidential value of the responses is likely to be diminished. So, it proposes open questioning to elicit any information required.
- In terms of outcomes in relation to fostering, the policy notes that the outcome should be presented to the next available fostering panel. Prior to the Fostering Panel, the foster carers and their representative should have seen, and had time to comment on the report being presented to the Panel.
- Elsewhere in the Safeguarding Children Partnership Procedures Manual, it sets out definitions to use when deciding the outcome of the investigations:
1. Substantiated: there is sufficient identifiable evidence to prove the allegation.
2. False: there is sufficient evidence to disprove the allegation.
3. Malicious: there is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive.
4. Unsubstantiated: this is not the same as a false accusation. It means that there is insufficient evidence to either prove or disprove the allegation; the term therefore does not imply guilt or innocence.
- Mr X and his partner were foster carers. In February 2020 a young person they were fostering (Child A) made allegations about Mr X. A new placement was found for Child A as she refused to return home to their care.
- On 24 February the Council arranged a strategy meeting to discuss the things Child A had disclosed. In addition to comments about her own experience, Child A made accusations that another child (Child B) had been mistreated. This included an accusation that Mr X had picked up Child B and thrown her onto her bed.
- A Strategy Meeting was held by the Fostering Team. They decided the allegations met the threshold to investigate under Section 47 of the Children’s Act.
- Later on 24 February a social worker visited Child B at school. The Head of Service and Team Manager advised her to explain to Child B what had been said, ask her how she felt about it and to continue the discussion from there. This is what the social worker did. Child B confirmed that Mr X had acted as Child A described.
- The same day the allegations were shared with the Children in Care Team at a professionals meeting. At that meeting social workers noted other children had also made reports about Mr X. They also took account concerns about the way Mr X approached some fostering issues.
- The Children in Care Team held a strategy discussion on 2 March. The attendees noted previous allegations had not met the threshold for a Section 47 investigation. They decided this time the allegations did meet the threshold and the Police had confirmed this. The attendees were concerned that some of the previous allegations had been similar and they decided children should not be in the placement while the investigation took place.
- On 4 March a social worker referred the issues to the Council’s Designated Officer (LADO). The same day Child B was found a new foster placement.
- On 11 March the Council noted the police would be taking no further action. The Council stated the Section 47 investigation would be closed as no further action also. They noted Child B had moved to a new placement. However, it stated a professionals meeting still needed to be held.
- Mr X raised a formal complaint by telephone on 13 March and followed this up by email on 18 March. He complained that a social worker had led a child to make allegations against him and this had resulted in the removal of a child and a Section 47 investigation. The Council noted this was the start of the first national COVID-19 lockdown. It says as a result there were some difficulties contacting the complaints team.
- A Joint Evaluation Meeting (JEM) was arranged for 1 April 2020. The police were invited. However, the police officer who interviewed Child B could not attend. Instead, he sent a summary of his investigation on 18 March, ahead of the meeting. Amongst his comments the police officer stated the way Child B was interviewed by a social worker could be viewed as leading. He confirmed the police would not be taking further action.
- The Council told us the professionals JEM meeting had to be cancelled and rescheduled due to the COVID-19 pandemic. However, it was re-arranged for 17 April via a video call. The Council provided a list of invitees.
- Mr X chased his complaint again on 17 April. The Council acknowledged this and explained there may be some unavoidable delays in its responses due to the pandemic.
- On 17 April 2020 the Council held the Joint Evaluation Meeting (JEM). The police did not attend the second meeting. However, the notes of the meeting show the attendees took note of the police officer’s comments and the police decision not to take action. They show there was consideration about what Child A and Child B had said, and the concerns about how Mr X interacted with professionals and dealt with some fostering issues. The minutes recorded the outcome as substantiated.
- Mr X sent several chaser emails between 21 and 24 April asking for an update. He noted the Council had been able to hold a JEM meeting but it had not responded to his complaint.
- On 24 April the Council reached a decision that the issues Mr X had complained about should be raised as part of the fostering procedure, so it decided to suspend the complaint. It did not tell Mr X this.
- The outcome of the JEM meeting was relayed to Mr X by letter on 5 May. The Council stated:
“I am writing to inform you that the recent allegation that has been made against you has concluded and the outcome was substantiated. Although there is no evidence to prove the allegations, in this case the voice of the children should be listened to. With regards to the LADO criteria, LADO felt that you have harmed a child and do pose a risk to children. You have caused emotional harm to a child by scooping [Child B] up and taking her to her bedroom to put her on the bed. You have also harmed a child by not reporting this to the Local Authority or liaising with the social workers. Because of these issues and the fact there have been two placement breakdowns due to your behaviour you pose a risk to children. However, there is no indication that you are a risk to children globally and the concerns are only around the children you are caring for in your role as foster carer. With regards to whether you have committed a criminal offence, this is not the case as the Police have done their Section 47 investigation and are taking no further action.
- The letter stated the Council would be putting the issues to a Fostering Panel with a full chronology of the concerns.
- On 13 May Mr X raised a further complaint with the Council about the outcome of the JEM meeting.
- On 22 May the complaints team contacted Mr X about his complaint. They stated the Council had placed the complaint on hold because it was currently following the ‘Fostering Allegations process’. Mr X was unhappy that the Council were refusing to consider the complaint. He argued that he had a right to an outcome to his complaint before the matter went to a fostering panel. The Council stated it may consider a complaint once the Fostering Allegations process was complete but not while it was ongoing.
- On 3 June the Council re-iterated that it would not consider Mr X’s complaint while the Fostering allegation process was ongoing.
- The Council arranged a fostering panel meeting for 10 June. Mr X stated that until he had a response to his complaint, he would not attend. In response the Council reiterated its position. It stated, once that process was concluded, he could ask the Council to reconsider the complaint. It stated however, it would not be able to look at aspects of the complaint that had been considered through the fostering process. The Council re-organised the panel meeting for 24 June and encouraged Mr X to attend. Mr X explained that it would not be possible due to work commitments and because of the outstanding complaint.
- In the event, the panel meeting took place without Mr and Mrs X. The Council noted it was not a regulatory requirement for the carers to attend the panel meeting but it was good practice. Mr and Mrs X were invited to attend.
- The panel decision was to terminate Mr and Mrs X’s approval as foster carers.
- The Council subsequently advised Mr X he could appeal the panel’s decision if he wished to. In correspondence with Mr X after the panel, the Council stated it wished to be clear that it would not be progressing a complaint even after the Fostering Allegations Process was completed. It stated the Fostering allegations process could cover all the points he raised and allowed him to appeal the decision if he was unhappy. As such, it covered all that the complaints process could.
- As he remained unhappy with the Council’s position Mr X brought a complaint to us.
Was there fault by the Council
Investigation and Outcome
- We found that the process the Council followed to consider the allegations was generally appropriate. The Council discussed the allegations at strategy meetings, liaised with the police and involved the LADO.
- However, when Child B was interviewed by a social worker, there is evidence that the questioning of Child B was leading. This goes against the guidance for officers which states that forced-choice or leading questions should only be used as a last resort. This is fault. It potentially affects the evidence gained from the interview.
- Although some of the questioning of Child B was leading in nature, there is evidence this was noted by the JEM attendees, along with the police comments about this. So, to an extent it was taken into account when the decision was made. However, in addition to this, the explanation of the Council’s decision in this case was contradictory and unclear. The definitions in the Safeguarding Children Partnership Procedures Manual state there needs to be identifiable evidence to prove the allegation for the outcome to be ‘substantiated’. The Council stated the outcome was substantiated here, but at the same time stated there was no evidence to prove the allegations. The Council did not explain properly how it reached its view that the decision was substantiated, so I consider the decision it reached was flawed. This was fault. The lack of clarity about the findings caused confusion and concern.
- It is not clear that the JEM decision affected the fostering panel outcome.
- The initial delay in contacting Mr X following his complaint was understandable as this coincided with the start of the first COVID-19 lockdown. However, there is evidence that the Council had decided it should not consider the issues as a complaint on 24 April but it did not explain this to Mr X until 22 May. The delay in the Council clarifying its position was avoidable and constitutes fault.
- When the Council decided not to consider Mr X’s complaint on 22 May it stated it was not refusing to consider a complaint, rather it was suspending it because a different process was being followed; the fostering allegation process. The Council told Mr X that he had a right of reply via the fostering panel when it was convened. It also stated it may consider the complaint after the other process was complete.
- When the fostering panel met and terminated Mr X’s fostering approval, it did not consider the issues Mr X had raised as a complaint. These were about the questioning of Child B by a social worker in March and the decision reached at the JEM meeting in May. It seems to me these were not issues a fostering panel could question or overturn.
- After the fostering panel’s decision, the Council told Mr X that it would not progress the concerns he raised about the decision as a complaint. So, the Council did not consider the concerns Mr X raised. This was also fault.
- Within four weeks of my final decision the Council agreed to:
- Apologise to Mr X for the failings in the way it handled his complaint, the fault found in the interviewing of Child B and in the lack of clarity about how it reached its decision.
- Pay Mr X £300 to recognise the time and trouble he spent pursuing the complaint and for the distress caused by the lack of clarity about its decision.
- Reconsider the issues that were before the JEM meeting and reach a fresh decision. The Council should take account of the police comments regarding the leading questioning and it should explain its decision in writing to Mr X having regard for the outcome definitions within its policy.
- If the outcome of the JEM meeting is different, it should refer the matter to a fresh fostering panel to explain the change and to allow a panel to consider if this affects the decision they reached about Mr and Mrs X fostering.
- There was fault by the Council.
Investigator's decision on behalf of the Ombudsman