Summary: Mr and Mrs X, foster carers, complained about the way the Council dealt with allegations about their care of two young foster children, resulting in the children being removed without notice and without following due process. We find fault causing avoidable distress to the complainants and to the foster children who would have suffered by being removed suddenly from the complainants in an unplanned way. The Council has agreed to apologise, to make symbolic payments to the complainants and to the children, to make service improvements, to reassure the children that the complainants wanted to care for them long-term, and to place a note of our findings on the children’s social care files, which they will be able to access when older. As the Council has agreed our findings, we have completed our investigation and are closing the complaint.

The complaint

1. The complainants, whom I refer to as Mr and Mrs X, complained that the Council failed:
1. to deal with their concerns about the Council’s care of the older foster child, who I refer to as Child B;
2. to deal properly with the allegations about their care of Child B and the younger child, Child C;
3. wrongly regarded their letter asking to be transferred to another fostering agency as a resignation letter;
4. deregistered them as foster carers without following due process; and
5. removed Child B and Child C from their care without giving them an opportunity to say goodbye and without having investigated properly the allegation that they allowed Child B to walk to school unaccompanied.

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What I have investigated

2. I have investigated the Council’s actions since April 2019. I have not investigated the Council’s fostering team’s recommendation that Mr and Mrs X should be deregistered for the reasons set out in the last paragraph of this statement.

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The Ombudsman’s role and powers

3. 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)
4. 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). This has allowed us to consider the injustice to the foster children caused by the Council’s fault.
5. 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

6. I made enquiries of the Council, and Mr and Mrs X have commented on the Council’s response. I have spoken to them on the telephone. I have considered the children’s social care records, during their time with Mr and Mrs X, and since they were removed. I cannot disclose the details of what happened to the children to Mr and Mrs X after they were moved.
7. I interviewed the children’s Independent Reviewing Officer (IRO) and gave her an opportunity to comment on my interview note.
8. I have considered the possible injustice of the Council’s faults on the foster children under the Ombudsman’s 26(D) powers.
9. The Council investigated Mr and Mrs X’s complaints under its corporate two stage process. Mr and Mrs X were dissatisfied with the Council’s September 2020 final complaint decision.
10. I issued a draft decision statement to the Council and to Mr and Mrs X, finding fault and injustice. The Council initially did not accept most of the findings or recommended actions and therefore we sought legal advice and have had further correspondence with the Council. The Council has now accepted the findings and therefore it is not necessary for the Ombudsman to issue a public report.
11. 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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What I found

Legal considerations

12. The Fostering Services: National Minimum Standards 2011 says investigations into allegations against carers should be “handled fairly, quickly and consistently in a way that provides effective protection for the child, and at the same time supports the person who is subject to the investigation”. Foster carers should be told in writing about allegations against them and given information about the timescale for completing the investigation.
13. 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.”
14. Standard 4 says that fosters should actively safeguard and promote the welfare of the foster child. The service should implement a proportionate approach to any risk assessment. Standard 14 says that fostering panels provide quality assurance feedback to the fostering service provider on the quality of reports presented to the panel.
15. Standard 15(3) says a child should not be removed from a foster carer who is willing and able to continue caring for the child, unless that is in their best interests, taking the child’s current wishes and feelings into account and decided through the child’s care planning process other than in an emergency.
16. The national minimum standards are underpinned by the 2011 Regulations-Children Act 1989 Guidance and Regulations Volume 4: Fostering Services. Regulation 14 requires a local authority, as far as is reasonably practicable, to give written notification of the intention to terminate a placement to the person with whom the child is placed, unless there is an immediate risk of significant harm, and to notify the independent reviewing officer (IRO) as soon as is reasonably practicable
17. Under the Assessment and Approval of Foster Carers (amendment to the Children Act 1989 guidance and regulations) a foster carer may at any point give written notice that they wish to resign, in which case their approval is automatically terminated 28 days from receipt of the notice. This does not prevent the fostering service forming a view about the person’s future suitability to foster. The fostering service may wish to advise a foster carer that, if they are considering resigning, this automatically takes effect, regardless of the foster carer wishing to withdraw this.

Looked after children

18. Children and young people may be in the care of a council either voluntarily under section 20 of the Children Act 1989, or by the family court making a Care Order and/or Placement Order. Councils should have care plans for children in their care. These should be reviewed by a multi-agency forum, at least every six months or more if required.
19. Professionals involved with the child will be invited to a statutory review so that information is collected before decisions are made about the child’s welfare.
20. A council should provide age-appropriate information to looked after children about how they can request an advocate.
21. Section 22(4) of the Children Act 1989 states that, before making any decision, a council shall, as far as is practicable, ascertain the wishes and feelings of the child, his parents and any other person whose wishes and feelings the council considers relevant.
22. Section 22(5) provides that, in making decisions, a council should give due consideration to those wishes and feelings, as they have been able to ascertain, having regard to the child’s age and understanding.
23. The Care Planning, Placements and Case Review Regulations 2010 (the 2010 Regulations) says that each child should have a permanence plan by the time of their second review. A permanence plan should be informed by multi agency contributions and will identify which option is the most likely to meet the needs of the child taking account of his wishes and feelings.
24. There is a presumption that there should be continued contact between the child and birth family. Contact should be focused and shaped around the child’s needs (2.78 statutory guidance accompanying the 2010 Regulations). The child’s welfare is always the paramount consideration, and each child’s wishes and needs for contact should be individually considered and regularly assessed.
25. All children who are in care of the council must be appointed an IRO. The IROs’ Handbook 2011 sets out their duties to safeguard and promote a child’s best interests.
26. The statutory guidance states that significant changes to the child plans may only be made or proposed at the child’s review (2.105). The IRO has the authority to determine when a review should be convened in the light of a change of circumstances. The child’s social worker must inform the IRO of proposed changes, where agreed review decisions are not being carried out, major changes to contact are proposed, or if there are safeguarding concerns and complaints from carers.
27. The statutory guidance (3.67) says that, where the council proposes to terminate a placement, it must carry out a review of the child’s case and ensure that the views of all the people concerned have been heard, including taking into account the child’s views (sufficient to their age and understanding) as well as the parents (if appropriate), the child’s carer and other people. But it does not need to do this if there is an immediate risk of significant harm to the child.
28. The review also provides an opportunity to consider what, if any, support or services could be provided to avoid the need to terminate the placement (3.69). If that is not possible, the review will provide a forum for consideration about what would be the most suitable new placement for the child, taking account of any concerns which have led to the decision to terminate the current placement.
29. A review will not be required for every change and the IRO will determine whether the change requires a review to be held. But it must be carried out where a change of placement is proposed for a child who has remained settled and established with the same carer for a significant period of time.

The IRO’s Handbook 2011

30. The IRO Handbook (2.2) says that “Effective care planning and review is underpinned by careful assessment of the needs of a child and making the right decisions about how best to meet those needs”. The objective of planning for permanency is to ensure that children have a secure, stable and loving family to support them through childhood and beyond (3.50).
31. The IRO is responsible to chair the statutory looked after child reviews at regular intervals (2.6).
32. If, following communication with the social worker, the IRO is satisfied that the arrangements in the care plan continue to meet the child’s needs or that the change does not have significant implications for the care plan and that a review is not necessary, a record of this agreement and the reasons for it should be placed on the child’s file.
33. The IRO (3.75) should consult with the child, where appropriate, and the child’s wishes and feelings about the impact of the proposed change on his/her life should be taken into consideration in reaching a decision as to whether a review is necessary. However, a review must be convened, prior to certain changes, including where a change of placement is proposed for a child who has remained settled and established with the same carer for a significant period of time. (3.77).
34. A care plan should be prepared before a child is placed or, if not practicable, within ten working days of the start of the placement. The IRO handbook says that:

“The review of the care plan is one of the key components with the care process….the care plan for each child should specify how the local authority proposes to respond to the full range of the child’s needs, taking into account his/her wishes and feelings”.

35. One of the statutory duties of the IRO (2.9) is to ensure “that any ascertained wishes and feelings of the child are given due consideration by the appropriate authority”. The IRO should promote the voice of the child.
36. The IRO, should, before every review, ensure that the child understands how an advocate could help and his/her entitlement to one (3.14).
37. The IRO Handbook (3.38) says that, as part of the review, consideration should be given to whether the placement is meeting the child’s needs, including considering the attachment between the child and the carer and those who are caring for him/her, how the local authority is ensuring that the placement provides the quality of care that the child needs and any change is necessary or likely to be necessary before the next review.

Local Authority Designated Officer

38. The Local Authority Designated Officer (LADO) is responsible for the management and oversight of allegations against people who work with children.
39. Local authorities should ensure that allegations against people who work with children are not dealt with in isolation. Any action necessary to address corresponding welfare concerns in relation to the child involved should be taken without delay and in a co-ordinated manner. (Working Together to Safeguard Children 2018 paragraph 5).

The Council’s Fostering Services

40. The Council says that it follows the framework for managing cases of allegations of abuse against people who work with children as set out in Working Together to Safeguard Children 2018. Services ensure there is a distinction between investigation into allegations of harm and discussions over standards of care. Where there is an allegation of significant harm, councils will normally hold a strategy meeting to decide whether to pursue an investigation under section 47 of the Act.
41. The Council says that the national minimum fostering standards (14 and 15) states that the legal function of a fostering panel is to recommend whether a person remains a suitable person to foster and whether, or not, the terms of their approval remain appropriate. A panel can do one of three things: make a positive recommendation, make a negative recommendation and defer making a recommendation for further information to be made available.
42. When a fostering panel recommends deregistration of a foster carer, he/she can appeal to the Independent Review mechanism (IRM) or to the Council’s Agency Decision Maker.
43. The Council has an IRO for the fostering services separate to the children services’ IRO. The role of the former is for annual reviews of the foster carer and is distinct from the IRO appointed for the child.

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What happened

44. Mr and Mrs X had been foster carers for the Council since May 2018, having previously been foster carers with another council, council Y, since 2013. The foster children, Child B and Child C, were placed with Mr and Mrs X in March 2019. The Council had approved them to take short and long-term placements.
45. The care plan for the children, approved by the Family Court, was for long-term fostering with contact with the birth mother six times a year at a contact centre. After a year, contact was ordered to be at the discretion of the Council. The IRO says that the children were seeing their birth mother and grandparent more frequently during the legal proceedings. At this stage, the children were placed with short-term foster carers.
46. During the care proceedings, the case was allocated to the court team. During these proceedings, Mr and Mrs X say that they thought there had been a matching report and placement plan, approving the placement of Child B and Child C with them as long-term foster carers.
47. Once the Family Court made a Care Order, the Council’s long-term team (permanence team) took responsibility, and the children were allocated a new social worker.
48. In April 2019, the Council’s children’s case files referred to the placement with Mr and Mrs X as a permanent placement and that the plan was that the children would be matched with them.
49. Mr and Mrs X say that the court social worker drew up a contact plan which included contact with other family members. When the new social worker took over, she streamlined the contact back to contact with the birth mother alone.
50. Mr and Mrs X say that this caused conflict within the birth family as the grandmother wished to see the children, and the contact centre allowed her to do so.
51. In April 2019, Child B was discharged from the Child and Adolescent Mental Health Service (CAMHS) as it was considered the previous therapeutic work had been effective. This was a decision for the health trust. In June/July Mr and Mrs X say that they asked for Child B to be referred to CAMHS because they were concerned about his emotional stability; they say he was having night terrors. But the Council did not make this referral.
52. The Council was due to hold an annual fostering review in November 2018. But this was delayed until April 2019 because the fostering social worker was absent. In May 2019, the Council’s Fostering Panel confirmed Mr and Mrs X’s continued approval.
53. The Fostering Panel recorded that Mr and Mrs X;

• have provided a safe and welcoming family home for children in their care;
• have a good support network which has been tested in this review period;
• have worked well with birth family and successfully supported a sibling group of three return to their birth father (previous placement): and
• the children in placement are all doing very well.

54. In July 2019, Mr and Mrs X emailed the Council saying that Child B and Child C were adversely affected by their contact with their birth mother. They asked for certain measures to be put in place to improve the contact, requesting also that consideration was given to reducing the six visits per year and separating the children’s contact with their birth mother.
55. In August 2019, the Council arranged a contact review meeting. The Council says that Mr and Mrs X were negative about the birth mother’s behaviour during contact, although the Council considered that she behaved appropriately. The Council agreed that the children’s social worker would observe the following two contacts and the children would have separate contact so the social worker could better assess the impact on the children.
56. At the next contact, the birth mother brought some presents in a rucksack. The Council says that Mr and Mrs X refused to accept these presents and they had to be returned to the birth mother.
57. In late August, the children’s IRO visited Mr and Mrs X prior to a looked after child statutory review. Mr and Mrs X say that they told the IRO that the children’s social worker had raised the possibility of a special guardianship order (SGO whereby Mr and Mrs X would have some parental responsibility). The IRO made a detailed note of this visit.
58. The IRO told the Ombudsman that she was of the view that the placement was short-term, as recorded in the statutory reviews of April and September 2019. The IRO says that she had to repeatedly explain to Mr and Mrs X that long-term fostering was the plan for the children and that a SGO was not being considered. The IRO says that she had been informed that Mr and Mrs X had been formally matched with the children and the IRO continued to believe this until she found out, recently, that Mr and Mrs X had not been formally approved by the Fostering Panel as the children’s carers.
59. The IRO’s note of her visit records that Mrs X had become distressed when advised of the need to promote the children’s contact with the birth family. It also records that Mr X explained that Child B was having nightmares, which he found difficult to witness, and which he thought was because he was being forced to see his birth family. The IRO explained that the Council had a duty to promote contact and the night terrors could be for other reasons. Mr X asked if he could wait in another room, away from the birth father, prior to the contact visits, because the birth father was ‘violent’. The IRO explained that this was not possible.
60. The IRO told the Ombudsman that:

“the carers were unable to demonstrate an ability and willingness to work with the family and were in fact actively sabotaging the care, plans and arrangements for the [children] having a relationship with the birth parents and wider family….

I didn’t tell Mrs X it was a short term placement. I told Mr and Mrs X that SGO is not being considered as this is not an SGO case at the moment. The children had been placed for less than a year and I could not receive guarantees from Mr and Mrs X that they could work with the family without local authority support as they were actively working against the care, plans and arrangements for the children. The couple would have to be assessed for an SGO”.

The IRO says that she spent ninety minutes talking to Mr and Mrs X about their wishes for the children’s care plan and she could not complete a meaningful IRO visit to the children. A copy of the IRO minutes is always sent to the foster carers and every child following a review.

61. After this visit, the IRO raised her concern with the senior social worker (SSW) and suggested a meeting to discuss the issues about contact. The IRO recorded that ‘the SSW was in agreement that the FCs [foster carers] wanted a SGO to eliminate the LA (local authority) from their lives but concerns remain that the carers would not positively promote contact between the children and family’.
62. At a visit to the children in September, the children’s social worker recorded that Child C was happy in the placement and that Child B responded well to the structure and boundaries put in place by Mr and Mrs X. But there was tension about the contact. The children’s social worker recorded that the children seemed better, after contact, now they were seeing the birth mother separately.
63. In September, there was a meeting with Mr and Mrs X and the fostering social worker to discuss concerns which the IRO had raised. The main concerns were that Mr and Mrs X were not working with the professionals, that they were not working towards the care plan, and they were attempting to disrupt the contact with the birth mother. The fostering social worker explained:

“The issues are not a massive concern but the issues have been raised and I have been asked to get a response from yourselves”.

64. The minutes of this meeting record that Mr and Mrs X wanted more structure to contact, that they had understood the placement was long-term fostering and they wanted to offer permanency to the children. They explained that they had not refused the presents the birth mother had given the children. It was the children’s social worker, who had come to collect them, and returned them to the birth mother. At this meeting, Mr X explained that he was dyslexic.
65. In September 2019, there was a statutory review held at Child B’s school. The IRO told the Ombudsman that the review was held at school so that Child B could attend. However, she was told by the Head that Child B had had a bad day and the IRO considered it best to proceed with the review, without Child B, so that a contact review meeting could be arranged. At this review, the IRO said that the care plan was for the children to remain with Mr and Mrs X.
66. The IRO told the Ombudsman that Mr X put pressure on the children’s social worker to return the presents, which the birth mother had put in a rucksack, saying that they were not appropriate for the children. Mr X says that this is not the case; the children’s social worker emailed them about returning the presents and not to give them to the children.
67. The Council drew up a working agreement about contact, and other matters, which Mr and Mrs X signed. The Council says that Mr and Mrs X disputed that they were not promoting contact, but they engaged well at the meeting. The working agreement also stated that Mr and Mrs X would work in partnership with the Council and encourage positive contact with the birth family.
68. Later in October, it was recorded that Mrs X refused a visit from the children’s social worker because not enough notice had been given although she later agreed to a visit the next day. The Council was concerned because it considered that it was not for the foster carers to tell the Council when social workers could visit. Mr and Mrs X say that it was half term and they had made arrangements for the children.
69. The children’s social worker visited the next day as agreed. She reported that the children were settled and happy but that the IRO was concerned about the placement. She recorded that Child B gave the placement 10 out of 10. At a subsequent visit, the children’s social worker reported that Child B was more able to make his wishes and feelings known.
70. In November, Mr and Mrs X told the Council that Child B did not want to see his birth mother and said that Child B had told a teacher at his primary school this. Mr and Mrs X say that Child B’s behaviours were becoming more challenging at home, and at school, resulting in Child B being on a reduced timetable.
71. In mid-November, the school told the Council that Child B’s behaviour was a concern. The children’s social worker decided that the planned December contact would not take place while the Council assessed Child B’s wishes. The Council says that the children’s social worker should not have made this decision.
72. Mr and Mrs X say that Child B’s behaviours became more aggressive after his primary school excluded him temporarily. They asked for meetings with the social workers but say that these were cancelled at the last moment.
73. The IRO told the Ombudsman that Child B was having difficulty in settling in his new school. She says that Mr and Mrs X arranged for the children to change schools and they had not discussed this with the children’s social worker. The children’s previous school was a forty minutes’ drive away. The IRO told the Ombudsman that she did not challenge Mr and Mrs X’s decision to change Child B’s school, at this time, because it would have caused too much disruption and confusion to Child B, having started at a new school.
74. When asked about this, Mr X provided evidence that the Council’s court team had agreed and arranged the change of school before the children were placed with them. This is because the placement was seen by the Council as long-term. Mr and Mrs X could not apply for a school place as they did not have parental responsibility.
75. Later in November, the children’s services team manager emailed Mr and Mrs X explaining that the December contact with the birth mother should not have been cancelled. She explained that the December contact would go ahead, and the children would see their birth mother and grandmother and they may bring Christmas presents. The team manager wanted to visit in early December to speak to Child B directly.
76. Mr and Mrs X indicated to the Council that they would be making a complaint about the lack of support in caring for Child B.
77. In view of the concerns about Child B’s behaviours, the children’s social worker said she would refer him to CAMHS. The social worker was then off sick, and the referral was not progressed until the team manager referred it again in early December 2019.
78. In December, Mr and Mrs X contacted the Council’s Emergency Duty Service (EDS), saying that Child B was becoming aggressive and smashing up his room and banging his head against a wall. On one occasion, the Police were called to the family home because of his behaviours.
79. Mr and Mrs X say that Child B was confused by the Council’s change of mind concerning his contact with his birth mother. They explained to the duty team that Child B wanted to see his birth mother but after Christmas.
80. The team manager recorded that there needed to be a professionals meeting and that no decision had been reached about the December contact.
81. Child B was seen at hospital in early December, (this was the third visit that week), Mr X having said that Child B had pushed him down the stairs. The hospital contacted the Council’s EDS. The Council says that Mr and Mrs X involved an advocate for Child B, without the Council’s permission and breaching Child B’s confidentiality. Mr and Mrs X say that a child is entitled to an advocate and the IRO had had no contact with him or ensured that Child B was aware of his right to advocacy.
82. In mid-December, there was a professionals meeting involving the children’s service team head, the team manager, the senior social worker, the fostering social worker and her manager. It was noted that the children’s social worker had not visited recently as she was off sick.
83. It was noted at this meeting that the placement of Child B and Child C with Mr and Mrs X had not been approved by the Fostering Panel and there had been no matching report, as there should have been. It was also noted that a social worker had visited Mr and Mrs X the day before to discuss their complaint and they had arranged for the Head and special educational needs officer of Child B’s school to be present.
84. A series of actions were agreed, including seeking the written views of the IRO, seeing how the carers would feel if they were more supported, exploring also the possibility of respite, arranging a multi-agency meeting and pursuing the referral to CAMHS or an assessment of Child B. It seems that these actions were designed to support the placement.
85. The IRO told the Ombudsman that she was unaware of this meeting or informed of the outcome or that Mr and Mrs X were to be assessed as long-term carers for the children. She says that Mr and Mrs X’s approval merely indicated that consideration would be given to progressing short-term and long-term matching with them.
86. In mid-December, the fostering social worker and her manager visited the complainants to tell them of the decisions made at the professionals’ meeting the day before. The Council says that it was agreed that there would be more visits to them, announced and unannounced. The Council says that Mr X retracted the statement that Child B had pushed him down the stairs. Mr X says that he was not sure whether Child B had meant to push him or had done so accidentally when in a temper. Mr X says that he did not want this on Child B’s record.
87. The IRO raised a concern that the opportunity to reopen the CAMHS referral had been missed because there had been no statutory health assessment that year (required annually).
88. A new children’s social worker was allocated, and he visited Child B’s school. He was told by the special educational needs officer that Child B had exhibited challenging behaviours in the past six weeks, by throwing and damaging items and being aggressive to staff and his peers. The new social worker spoke to Child B, and he said he was looking forward to Christmas. He did not want to talk about his contact with his birth mother and he asked that the social worker did not visit him at school.
89. Just before Christmas, the children’s social worker visited Mr and Mrs X with the fostering team manager. The children’s social worker noted that there was little contact between the children which he thought unusual. The foster carer’s supervision form noted that Child B and Child C had an attachment to the complainants.

Events of 2020

90. In early January 2020, the children’s social worker visited Mr and Mrs X twice, once with the senior social worker. Mr and Mrs X told the children’s social worker that they found the increased visits supportive. They asked that the children’s contact with the birth mother was separate as they said that there was less fall out afterwards between the children. The children’s social worker agreed to explore this possibility.
91. Later that month, there was a meeting with Mr and Mrs X about the revised contact arrangements when they were told the children would have joint contact with the birth mother and see other family members. It is recorded that Mr and Mrs X were not happy with this arrangement and the children’s social worker noted Mrs X’s frustration. He recorded that the complainants were challenging of the decision.
92. The complainants say the Council had originally agreed to the children having separate contact and it was stressful to them and to the children to change this plan.
93. In mid-January, there was a professionals’ meeting. The Council does not have a copy of the minutes of this meeting on the case file and it has been unable to provide the Ombudsman with a retrospective note. It is unclear who attended and what was discussed. It seems that the children’s social worker was required to complete and upload the minutes onto the children’s case files. The IRO was not aware of this meeting at the time.
94. Subsequently, the children’s team manager recorded:

“There have been a catalogue of concerns in relation to the conduct of carers, including a hospital attendances for [Child B] and reports from [Child B] which carer have more recently admitted were fabricated. Carers have requested reports from school and nursery to include inaccurate information which both have refused to do. Full details in recent foster carers review report. Nursery have noted concerns in regard to [Child C’s] conduct.

It is felt that an alternative placement is needed for the children in light of the concerns”.

95. It is recorded that the desired outcome was for the Council to find a suitable long‑term placement for the children to achieve permanence and for Child B to have support from CAMHS. It seems that the decision to move the children to a different placement was made at this point (mid-January). The Council asked its family finder team to look for a suitable alternative foster placement. It was agreed that the children and the fostering team managers should tell Mr and Mrs X the decision.
96. In late January, the school emailed the children’s social worker about a discussion a school member had had with Mr X in which he explained that he dropped Child B at the school gates to encourage Child B to play with other children in the playground. It had been noticed that Child B was coming into the playground without a carer.
97. In February 2020, a parent reported seeing Child B go to school unaccompanied. The parent said that this was the second time she had witnessed this. The witness stated that the journey involved crossing a road.
98. The children’s social worker and the IRO discussed the situation. The IRO recorded:

“[Child B] is now walking himself to school and home again daily and another child’s parent has made a formal complaint to School. The IRO raised further concerns that the boys are treated differently to each other and is concerned that this is further evidence of an attempt by the foster carers to separate the boys.

The SW (children’s social worker) raised that he is not happy to remove the children only to have to move them on again so they may have potential two placement moves”.

99. The IRO recorded that Child B could manage respite care if the reasons for this were properly explained. The IRO considered that Child C would struggle due to age, understanding and attachment to carer. It is recorded that the children’s social worker disagreed with the IRO, and he felt Child B would be traumatised by too many placement moves. He also highlighted that the reports from school and other professionals were that Mr and Mrs X offered good quality basic care.
100. The IRO recorded that ‘anyone could provide good enough or quality basic care’. But the issue was that “Mr and Mrs X continue to escalate the risks afforded to Child B”.
101. The IRO told the Ombudsman that the Council would not normally hold a statutory review before a child was moved to a different foster placement. It depended on the individual circumstances. She said that her role is to make recommendations to the Council; it is the Council who make the placement decisions. The IRO accepted that the children’s social worker had raised concern about the children having too many placements, and that Mr and Mrs X provided good enough care. But she had concerns about the complainants’ approach and their lack of support of the care plan for the children, in particular in relation to contact with the birth family.
102. The IRO says that she would have been unaware of what other foster placements would be available for Child B and Child C. When asked whether the wishes and feelings of the children should have been ascertained, the IRO told the Ombudsman that the children’s social worker would have sought these. The IRO said that she made attempts to see the children prior to the September 2019 review, and at this review, but these were unsuccessful. The IRO says that, obtaining the wishes and feelings of a child is part of her role. The IRO continued to speak to the social worker, and to the children (although there is no record of this in the case files) and had visited the children in August 2019 before the September review.
103. The IRO told the Ombudsman:

“it is not always prudent to hold a LAC (looked after child) Review when everyone is at odds with the care, plans and arrangements which is why we encourage Social Workers to hold care planning meetings between the LAC Reviews”. She says that it was not necessary to hold an additional review. All reviews were held within the statutory timescales.

104. The IRO said that the Head of Fostering had also visited the complainants with the fostering social worker to discuss the many concerns and they were dissatisfied with their response.

The children’s move

105. The allegation about Child B walking to school unaccompanied was referred to the LADO of the council where Mr and Mrs X live. The LADO asked the Council to seek Mr and Mrs X’s views.
106. In mid-February 2020, the Council held a placement stability meeting. In attendance was the children services team manager, the children’s social worker and Mr and Mrs X. The concerns raised at this meeting were about contact visits to the birth family. The Council said that Mr and Mrs X had refused gifts from the birth mother. Mr and Mrs X explained that they were not at the meeting when the birth mother gave these gifts to the previous children’s social worker. There was also an allegation that they had not been prepared to accept Christmas gifts from the birth mother. Mr and Mrs X told the Council that they had not been invited to a meeting to discuss this.
107. Mr and Mrs X say that they were not told, at this meeting, about the allegation concerning Child B walking to school unaccompanied. The Council says that this is because Mrs X walked out of the meeting, before it ended, stating that they would be resigning.
108. Mr and Mrs X say that they asked whether the Council had decided to end the placement. They say that they were told it had. At this point, Mr and Mrs X questioned the point in them remaining. They were hurt by the negative comments being made about them, based on what they considered was inaccurate evidence and that the Council was not interested in what they had to say. They say that they had no support at this meeting. The Council says that this was not the case; they were being supported by the fostering network.
109. When driving home, the children’s social worker telephoned them to say he would pick up Child C from home and collect Child B from school.
110. The Council says that the meeting was part of the placement stability process and that the decision to remove the children was made after this meeting. In the Council’s stage two complaint report, it is recorded that the decision to remove the children was made by the social workers after this meeting due to accumulating safeguard concerns. The Council however has recently confirmed that the decision to move the children was made prior to this at the mid‑January 2020 meeting, of which there are no notes.
111. Mr and Mrs X were not able to say goodbye to Child B because he was picked up directly from his school. They say it was very distressing for them and for the children to be removed in this way. The children had no idea that this was to happen or where they would be living.
112. Mr and Mrs X say that, throughout the placement, the fostering and children’s social workers raised no safeguarding concerns. There were also no concerns raised at the two looked after children’s reviews. Mr and Mrs X say that neither social worker had spoken to them one month prior to the removal of the children.
113. The Council says that the safeguarding allegation was sufficiently serious to merit immediate removal of the children without notice.
114. Mr and Mrs X wrote to the Council, after the children had been removed:

“Please take this as our formal notice that we no longer wish to be foster carers for Manchester City Council. We will be looking to transfer as foster carers to another agency”.

115. The Council says that the letter was clear: Mr and Mrs X were formally resigning from the Council as foster carers. The Council says that, because Mr and Mrs X resigned, the case was presented to the Fostering Panel for oversight and for the Fostering Panel to indicate what sort of recommendation it may have made.
116. The IRO was told of the children’s move after the event. She raised no concern about this because she agreed with it. The IRO says that the children were moved without notice because of the assessed risk. This meant that the Council had to override any wishes and feelings the children may have had about remaining with Mr and Mrs X as this was not an option due to safeguarding concerns. The IRO arranged a statutory review four weeks later, as required.

The Council’s investigation of the safeguarding allegations

117. In early March, after the children had been removed, the Council telephoned Mr and Mrs X to tell them of the allegation about Child B walking to school unaccompanied. The team manager (investigating team manager) appointed to investigate this, as requested by the LADO, arranged to meet the complainants the next day. At this meeting, Mr and Mrs X denied this allegation, questioning how a parent was able to tell that one of them was not with Child B. They explained that Child B liked to take his scooter and was sometimes ahead of them.
118. They explained that they had never allowed Child B to cross the road on his own. But sometimes Child B liked to be dropped off at the playground gates so he could play with his friends.
119. The next day, the investigating team manager told Mr and Mrs X that the matter would be considered by the Fostering Panel and that there would be a recommendation that they be deregistered.
120. Subsequently, the investigating team manager interviewed staff at Child B’s school. On one occasion, she was told that Child B had said that he had walked from the crossing. School staff asked Mr X about this. Mr X said he had crossed the road with Child B but had allowed him into the school playground on his own, as part of helping him to make friends and be more independent.
121. The investigating team manager visited the park. She concluded that it was 350 yards from Child B’s home to school and would take ten minutes through the park. She noted that, as it was winter, it might be dark and there were a lot of dog walkers.

The Fostering Panel hearing of mid-April 2020

122. This was held virtually because of Covid-19.
123. There was a report to the Fostering Panel which recommended deregistration because of;

• the recent safeguarding referral to the LADO;
• failure to support positively and promote family contact with the birth family;
• failure to support the care plan and work in partnership with the professionals; and
• behaviour management concerns.

124. Mr and Mrs X provided a detailed report, denying all allegations and providing evidence in support. Of particular relevance was the information they provided about the walk to Child B’s school from their home.
125. Mr and Mrs X explained that Child B was always in their sight even if he was ahead on his scooter. They remained concerned about how the parent could have known that one of them was not with Child B. They said that sometimes Mrs X or her father walked Child B to school, and they took Child C to the nursery after this.
126. The Fostering Panel considered the evidence. It decided that, because Mr and Mrs X had resigned, it had no remit. But it noted that the LADO’s referral had been substantiated and, had the complainants not resigned, it may have led to the Fostering Panel recommending deregistration. But it considered the investigation into the allegations would have benefitted from a clear timeline of the concerns about Mr and Mrs X. The Council says that that Mr and Mrs X had copies of the reports before the meeting and provided their response.
127. The Council’s stage two investigation report stated: “the Panel made the recommendation that you be deregistered while acknowledging that you had resigned at that point”

The Council’s complaint investigation

128. The Council accepted that the initial care plan had been that Mr and Mrs X would go through the process to be matched with Child B and Child C as long-term carers. But the Council says that the plan had to change in the light of the concerns about Mr and Mrs X.
129. The Council accepted that not all social work statutory visits took place, that there was a delay in making the referral to CAMHS and some meetings were cancelled. The Council also accepted that reversing the social worker’s decision to split the family contact and, at one point, to suspend it would have been confusing for Child B. The Council apologised for these failings.
130. But it considered that, despite this, Mr and Mrs X were supported by the children’s and fostering social workers in an appropriate way.
131. The Council did not uphold the complaint that the placement ‘broke down’ because of a lack of support for the children and for the complainants. The Council concluded that it reached an informed decision that the safeguarding concerns merited the removal of the children. It also did not uphold the complaint that the Council failed to prevent the breakdown of the placement as it was required to do so.
132. The Council considered that Mr and Mrs X had the opportunity to challenge the safeguarding concerns raised in the fostering team’s report at the Fostering Panel meeting of April 2020.

Mr and Mrs X’s comments

133. They consider that their relationship with services became strained when they raised concern about the lack of help for Child B. He was having serious ‘melt downs’ at home and school and, in their view, he seemed to be adversely affected by contact with the birth mother. Mr and Mrs X say that the birth mother had mental health issues which had brought the children into care. The children’s social worker had told Child B that he did not have to see his mother but later this was overturned by management.
134. Mr and Mrs X say that, prior to the placement, they were told it was a permanent placement and they were asked about applying for a special guardianship order (SGO). Mr and Mrs X say that the children were told that they were their ‘forever’ family.
135. Mr and Mrs X say that the IRO did not speak to the children directly or ask to speak to them.
136. Mr and Mrs X say that they had become very attached to the children and had been willing to care for them long-term. They remain concerned about what has happened to them, since they were removed, and distressed at the way they and the children were treated.
137. The complainants say that the fostering network continued to offer advice which it would not have done if they had resigned (the Council says this support is available even when foster carers have resigned).
138. As part of their complaint, the complainants asked the Council for:

• written apologies for the avoidable distress caused by saying the placement was long-term and then changing its mind, apologies for the delays in referring Child B to CAMHS and cancelled meetings and apologies for no attempt being made at the placement stability meeting to secure the placement;
• an explanation for why the children were removed without notice and why they were not allowed to say goodbye to Child B; and
• financial compensation for the time taken to deal with their concerns.

Analysis-has there been fault?

Complaint (a): the Council failed to deal properly with their concerns about the Council’s care of Child B

139. The Council has already recognised that there were earlier delays in referring Child B to CAMHS and confusion created by the Council telling Child B and Mr and Mrs X different things about the contact with the birth family. This amounts to fault.
140. However, the Council dealt with the concerns about contact and the complainants’ attitude by drawing up a working agreement and also, in December 2019, increasing the Council’s contact with them. It seems that, after this, the placement became more settled. This is evidence of good practice, and it seems that, in December 2019, the Council was looking to provide additional support to the placement and to Child B. So, I consider that the Council dealt appropriately with Mr and Mrs X’s concerns in December 2019.

Complaint (b): the Council failed to deal properly with the allegations about their care of Child B and Child C

141. The IRO wanted to promote a healthy relationship between the children and their birth mother and father, in accordance with the care plan agreed at Court and in the children’s best interests long-term.
142. It seems that concerns about Mr and Mrs X’s approach to contact with the birth family were first raised by the IRO after her visit in August 2019. The IRO appears to have formed a rather negative view of Mr and Mrs X, being concerned about their wish to obtain a SGO, believing this was an attempt to eliminate the Council. However, from the complainants’ perspective, it was a wish to offer the children permanency and they say a SGO had been suggested to them by the children’s social worker.
143. The IRO raised her concern with the social workers, and this led to discussions with Mr and Mrs X and a working agreement about partnership working and contact issues. In December 2019, the Council increased its contact with the complainants and agreed a series of actions, in what appears designed to maintain the placement. As said, this was appropriate.
144. However, my view is that the Council was not fully transparent about its concerns with Mr and Mrs X, prior to the children’s removal; for example, that there was a ‘catalogue’ of concerns, including them taking Child B to hospital and the complainants seeking reports from the children’s school and nursery asking them to give inaccurate facts. The complainants were also not told of the nursery’s reported concerns about Child C. This meant that they had no opportunity to provide their evidence or challenge what the Council was alleging.
145. In addition, the allegation about Child B walking to school unaccompanied was not disclosed to the complainants prior to the removal of the children. I do not accept the Council did not have the opportunity to do this. The Council should have emailed them with the allegation prior to the meeting of mid-February 2020. Indeed, the fostering standards expect councils to put allegations in writing with a timescale for dealing with them.
146. This lack of transparency is a key failing by the Council. Councils should deal openly and honestly with foster carers unless to do so would put the child at risk. The Council had dealt with some of its concerns openly and therefore I cannot see why other concerns were not dealt with in the same way. Making assumptions about the complainants’ motivations and intentions, without a direct discussion with them, led to concerns being raised without the complainants having an opportunity to put their perspective, until after the children were removed. This lack of transparency amounts to fault.
147. I am also satisfied that there is evidence to support the view that the decision to remove the children was made in mid-January 2020, before the allegation about Child B walking to school unaccompanied came to light three weeks later. Mr and Mrs X were wrongly told, in the Council’s complaint investigation, that a decision to remove the children was made after the mid-February meeting, when it was not. That too is fault.

Complaint (c): wrongly regarded their letter asking to be transferred to another fostering agency as a resignation letter

148. I can see why the Council considered Mr and Mrs X’s letter meant that they did not wish to remain as foster carers for the Council. The Council took this to mean that they were resigning although this word was not used in the complainants’ letter. The Council acknowledged the letter only. It was not until the May 2020 letter that the Council referred to the complainants resigning. The Council says that it was acknowledged at the Fostering Panel in April that Mr and Mrs X had resigned.
149. On balance, I do not consider that there is sufficient evidence of fault here.

Complaint (d): deregistered them as foster carers without following due process

150. The Council has not officially deregistered Mr and Mrs X by writing formally to them to say this. Instead, the Fostering Panel has accepted their wish to be transferred to another fostering agency as resignation from the Council’s approved list of foster carers. The fostering team recommended deregistration. It was for the Fostering Panel to consider this and make its own recommendations. I consider the Fostering Panel could have done this even if the carers had resigned. So, I do not find fault here.
151. The Fostering Panel had a detailed report from the Council, and from the complainants providing evidence to support their rebuttal of the allegations. Mr and Mrs X expected there to be proper consideration of the evidence, and findings reached on the specific allegations. The Fostering Panel acknowledged the evidence and was satisfied that Mr and Mrs X had had the opportunity to present their case. It did not reach specific findings on the allegations and said that the investigation would have benefitted from a clear timeline of the concerns about Mr and Mrs X. The Fostering Panel indicated that it might have recommended deregistration, but it fell short of making this a formal recommendation. This has meant that Mr and Mrs X have not been able to appeal to the IRM because the IRM has declined to accept a referral on the grounds they resigned rather than being formally deregistered by the Council.
152. Had the Fostering Panel had this timeline, it would have learnt that the Council made the decision to terminate the placement in mid-January 2020, before the allegation of Child B walking to school unaccompanied. It would also have learnt that Mr and Mrs X had not been asked about this allegation before the children were removed. But I cannot say what difference this would have made to the Fostering Panel’s thinking.
153. Accordingly, I cannot conclude there has been fault causing an injustice to Mr and Mrs X. If Mr and Mrs X wish to return to fostering, this would mean that there would have to be a new assessment of their suitability.

Complaint (e): removed Child B and Child C without giving them an opportunity to say goodbye or without investigating properly the allegation that they allowed Child B to walk to school unaccompanied

154. I am satisfied that the Council failed to investigate the allegation that Child B walked to school unaccompanied prior to his removal. I accept it was a concerning allegation. But it should have been put in writing to Mr and Mrs X and they should have been given a chance to comment. In addition, the Council has accepted that, as it was an allegation of significant harm, it should have held a strategy meeting to decide whether to investigate under section 47. These failings amount to fault.
155. However, I have already found that this specific allegation was not the reason for the decision to remove the children but has been used subsequently as the main reason for the removal. The decision to remove the children was formally made in mid-January 2020 at a meeting of which there is no record. The Council has now confirmed that it cannot provide a retrospective note of this meeting because the social worker responsible no longer works for the Council.
156. Dealing now with the removal of Child B and Child C, a decision was made to remove the children without a clear written record of how this decision was reached, by whom and the evidence relied upon. Moreover, often children in care, when older, seek to access their files. It is important that the decision making is in writing so that they can try to understand better the decisions made on their behalf. So, my view is that a lack of a written record of this decision is fault. It also means that I cannot be satisfied that such a decision was made based on all available information, in particular about Mr and Mrs X’s care and the children’s attachment to them.
157. I am satisfied that the legislation and guidance only envisages the immediate removal of a looked after child from a placement in the narrowest of circumstances where there is the immediate risk of significant harm. The threshold for immediate removal was not met in mid-January 2020, a view supported by the fact that the children were not moved for another three weeks. Therefore, the Council has been at fault. I also consider that it was fault not to tell the complainants and the IRO of the decision to remove the children when it was made in mid-January 2020.
158. In addition, a key question is whether the Council was at fault for not holding a statutory review before deciding to remove the children.
159. My view is that, in accordance with the Care Planning, Placements and Case Review Regulations, and guidance, there should have been a statutory review to ensure that all professionals could contribute their views before such an important decision to terminate the children’s placement was made. I recognise that there were care planning meetings, but these are primarily internal meetings. A statutory review is a more formal process with all professionals being invited at the same time, as well as carers and, if appropriate, the child. Moreover, if professionals were ‘at odds’ as indicated by the IRO, my view is that was an added reason to hold a statutory review to carefully analyse the information available and why professionals were ‘at odds’.
160. Further, achieving permanency for the children was a key aim of the care planning, alongside promoting their contact with the birth family, and the complainants were offering permanency. This is an offer the Council should have given serious consideration to, especially in view of the ages of the children, that they were a sibling group (sometimes harder to place), their previous history and the Council did not have an alternative long-term placement available, in the event of the children being removed from Mr and Mrs X.
161. Moreover, while there were discussions about the viability of the placement long‑term, there were equally positive reports about Mr and Mrs X’s care which seemed to get lost as well as the children’s attachment to them. Had there been a statutory review, all this information would have been considered and weighed in the balance.
162. In addition, the children’s social worker expressed concern about removing the children without having a permanent alternative. The children’s social worker raised important questions about the children’s attachment to Mr and Mrs X and how they would cope with unnecessary placement moves. He had seen and spoken to the children in the placement. His views were important and should have been weighed in the balance, along with others, at a statutory review.
163. Further, in December 2019, it seems that the plan was to support the placement and assess Mr and Mrs X as possible long-term carers. It is not clear why this plan was not pursued and there is no evidence to suggest that this initial plan was given time to take full effect. So, my view is that it was fault for the Council not to give more consideration to supporting the placement while decisions were being made about the children’s long-term future placement.
164. Accordingly, I find that the decision to remove the children without notice was made without the normal checks and balances afforded by a statutory review. This amounts to fault.
165. Concerning the IRO’s role, I recognise that she considers she was unable to see the children because the complainants prevented this, which they deny. But it is an important aspect of the IRO’s role and, if the complainants were preventing opportunities for the IRO to see the children, this should have been raised directly at the time with the complainants. I also note that the children’s social workers were able to see the children on their visits.
166. In addition, it seems the IRO last saw the children in August 2019, and she was prevented from speaking to the children in the way she had wanted. After this, she relied on the social worker to speak to the children. I consider the IRO failed to ascertain the children’s wishes and feelings, as required, and record them, and this amounts to fault. While it is necessary to sometimes override children’s wishes in their best interests, that should not mean that their views are not sought and taken into account in the decision making. The children had expressed satisfaction with the placement, and they were observed at various times to be settled and attached to the carers.
167. Therefore, overall, I find fault in the way the Council managed the children’s placement.

What injustice has been caused?

168. The Council’s faults have caused avoidable distress, frustration and time and trouble for the complainants in pursuing their complaints. They feel aggrieved that their care of the children was not assessed properly, and the decision made to remove the children was made without looking at all the evidence. Not being able to say goodbye to Child B remains distressing to them. They also continue to worry about what has happened to them.
169. In terms of Child B and Child C’s injustice, it appears that, whatever the tensions were about contact, they were settled with Mr and Mrs X, and they had been told this was their ‘forever’ home. It is highly likely that being removed without notice and without any preparation for next steps would have been very distressing and confusing for them. It may well have also dented their trust in adults at the time and in the long-term.
170. But, given the range of other aggravating factors, it would be difficult to conclude that these events would be causal in any long-term difficulties the children may now face or face when older, albeit they might well be contributory.
171. Had the proposal to remove the children been considered at a statutory review, I cannot second guess what decision would have been made or that the outcome would have been different, but for the Council’s faults. But nonetheless there was a lost opportunity for the children for such an important decision to be properly discussed and for alternative approaches to be explored.

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Agreed actions

How the Ombudsman remedies injustice caused by fault

172. The Ombudsman’s Guidance on Remedies makes the following points:
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.
173. In respect of Mr and Mrs X, the Council will within two months of the final statement:
1. apologise to Mr and Mrs X for failing to deal with the concerns about them in a transparent and open way so that they had opportunities to challenge what was said and correct negative assumptions being made, for failing to tell them of the mid-January 2020 decision to remove the children and the failure to hold a statutory review;
2. apologise for misleading the complainants in telling them the decision to remove the children was made after the meeting of mid-February 2020, when it was not: and
3. make a symbolic payment of £1,000 to recognize the avoidable distress caused to the complainants and for their uncertainty about how the outcome might have been different but for the Council’s faults.
174. In respect of the children, to remedy their injustice, the Council will within two months of the final statement:

• place a note of the Ombudsman’s decision on the children’s social care files explaining that we have found fault in the decision-making process leading to their removal from Mr and Mrs X;
• the children need to know that Mr and Mrs X did not reject them. The Council should ensure that the children are told this and reassured of the complainants’ past commitment to look after them long-term; and
• put £2,000 in the children’s savings account which the Council should have for each child. It will be for the Council to decide when they tell the children why this amount has been added to their accounts.

175. In respect of the Council’s approach to decision making for looked after children, this case has highlighted that the Regulations and statutory guidance about how decisions to terminate placements should be made have not been adhered to. The Regulations are there to ensure proper checks and balances when making significant decisions on behalf of looked after children.
176. The Council and IRO service will within four months of the date of the final statement:

• remind children’s IROs of their responsibility to ascertain children’s wishes and feelings and make a formal record of these and how IROs have given them due consideration before making recommendations about their placement and care plans;
• review the information it provides to children in care to ensure they are made aware of their right to advocacy;
• remind IROs and social workers of the need to hold a statutory review before a decision is made to terminate a placement, unless there is an immediate risk to the child, and to include this requirement in the Council’s practice guidance to social workers and IROs;
• remind social workers and their managers to ensure that there is a written record of important meetings when key decisions are made, always bearing in mind that children in care, when older, may wish to see their records; and
• tell us what steps it has taken to ensure that the Fostering Panel formally approves a child’s placement and match with a foster carer, before placement, wherever possible, particularly when the care plan is long-term fostering.

177. The Council will need to provide the evidence it has completed these recommendations within the required timescales.

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Final decision

178. I find fault causing injustice to Mr and Mrs X and to Child B and to Child C. The Council has agreed to remedy those injustices in the way recommended. Therefore, I have completed our investigation and am closing the complaint.

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Parts of the complaint that I did not investigate

179. I have not investigated the Council’s decision to recommend deregistration to the Fostering Panel. It is not possible for Mr and Mrs X to appeal to the IRM. If they would like to resume fostering, they would have to apply afresh and would be reassessed. It would be open to them to use the final statement on their complaint should they wish. While we have found fault in the Council’s management of this case, we cannot make decisions about eligibility to foster. This is a matter for the Council’s Fostering Panel, the Council and/or IRM.
180. I have not investigated the actions of the LADO as this officer works for a different council and the complainants have not made a formal complaint. I have also not investigated the Council’s actions during the care proceedings, in particular the fostering services’ actions.

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Investigator's decision on behalf of the Ombudsman