Summary: Mrs X complains about the Council’s handling of her special guardianship of her nephew, Child Y. We find the Council at fault for failing to secure Child Y’s legal status in Spain (where he now lives with Mrs X) and for its handling of her complaints. The Council has agreed to remedy the significant injustice caused to Child Y and Mrs X, and work to resolve all issues around his legal status as soon as possible. The Council will also review its procedures to embed recent caselaw.

The complaint

1. The complainant, who I have called Mrs X complains about the Council’s handling of her special guardianship of her nephew, Child Y, and her complaints about this. She complains:
1. the Council has not provided correct documents for Child Y to be legalized in Spain, despite several attempts since October 2018.
2. this has impacted on Child Y’s ability to access education and healthcare in Spain and has become even more urgent with Brexit taking place at the end of last year.
3. the Council has also not provided the support it should have for Child Y or her as a special guardian.
4. the Council failed to offer any additional support in July 2019 when Mrs X alerted it to the placement being at risk of breaking down.
5. the Council has not responded to requests for help with legal fees for a tax investigation by the Spanish authorities into Mrs X’s Special Guardian Allowance (SGA) payments from the Council.
6. the Council has delayed making payments to third parties for services to support Child Y, instead making payments to Mrs X in UK Sterling. Mrs X says this has left to her having to make up any shortfall in the amount paid due to currency conversion charges and transfer fees, and forms part of the tax investigation she is currently subject to.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. We have spoken to Mrs X and considered the information she has provided in support of her complaints.
6. I have considered the information the Council has provided in response to our enquiries.
7. I have taken account of the statutory guidance for local authorities on the Special Guardianship Regulations 2005 (updated in 2017) (the Regulations).
8. 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.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Child protection and Looked after Children

10. The Children Act 1989 (the Act) and statutory guidance Working Together to Safeguard Children sets out the council’s responsibilities to safeguard children.
11. The Act says that, “where a local authority…have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.” (The Children Act 1989, section 47(1)).
12. Anyone who has concerns about a child’s welfare should make a referral to local authority children’s social care. Where a child is in need of immediate protection the council, the police or the NSPCC must act as soon as possible after the referral if removal is required. The council can apply for an Emergency Protection Order (EPO) or the police can remove the child immediately, who may be placed with family or foster carers while the council completes its enquiries. 
13. A Looked after Child (LAC) is any child who is subject to a care order or accommodated away from their family by a local authority. The accommodation can be voluntary or by care order. The child becomes looked after when the local authority has accommodated them for a continuous period of longer than 24 hours. (Children Act 1989, section 20)

Family and friends carers and Special Guardianships

14. Where parents cannot look after their children, some family and friends carers may decide to go to court (sometimes with the help of the council) to gain a Special Guardianship Order (SGO) or Child Arrangement Order for a child. The SGO gives the person with the order some, but not all, parental responsibility for the child. The carer would then be free of the controls placed on LACs and their carers. It allows them to decide such things as the child’s health matters and schooling. Special guardianships are intended to give a firm footing on which to build lifelong relationships between the children and their carers. Overall, a Special Guardianship Order is more secure and can lead to more support from councils than a Child Arrangement Order.
15. The Special Guardian can ask councils for support. This may include a Special Guardianship Allowance (SGA). Any support, including financial, should be reviewed at least annually, and could be removed. The starting point for calculating SGA is the council’s fostering allowance rate minus child benefit and child tax credit. These are deducted because the Guardian can claim these benefits when professional foster carers cannot. The SGA is also means tested.
16. The council where the Special Guardian lives is responsible for undertaking an assessment of need and provision of any special guardianship support services in response to that assessment. The only exception to this is where the child is a LAC before the SGO is made. (Special Guardianship Guidance and Regulations 2017, Regulation 5(31))
17. The statutory guidance is silent on the overseas placement of children with Special Guardians, therefore the guidance in regulation 5 applies as much as possible in such cases.

In 2013, we published a focus report, ‘Family Values: Council services to family and friends who care for others’ children’. The report highlighted common faults in councils’ handling of cases where children were living with family and friends. This noted most family carers are grandparents, older siblings, or aunts and uncles. They may have their own family, work commitments, health or financial problems before taking on the care of their relative’s children. Sometimes family and friends have stepped in to care for a child out of goodwill because they are worried about the possible impact on the child. In the case of young children, often the carer has had to give up work at short notice to care for the child which in turn leads to financial problems for the family. Any extra strain on such a placement could lead to it breaking down.

Children Social Care Complaints

18. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Investigating Officer (IO) and an Independent Person (IP). The IP is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, we would not normally re-investigate it unless we considered that investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
19. The timescales in working days for the procedure are:

• 10 days at stage 1 (with a further 10 days for more complex complaints or additional time if an advocate is required);
• 25 days at stage 2 (with maximum extension to 65 days);
• 20 days for the complainant to request a Review Panel;
• 30 days to meet and hold the Review Panel at stage 3;
• 5 days for the Panel to issue its findings; and,
• 15 days for the local authority to respond to the findings.

20. The Adjudicating Officer (AO) should write to the complainant at the end of stage two complaint investigation with details of the adjudication which:

• confirms the council’s response to the IO and IP’s reports;
• its decision on each point of complaint; and,
• any action to be taken (with timescales for implementation).

Background and Mrs X’s complaints

21. This chronology provides details of key events leading up to Mrs X’s complaint to us, it does not cover everything that happened.
22. The Council took Child Y into care at the end of 2016 following a police raid on his mother’s home. Child Y was five years old at the time, he was immediately placed with foster carers due to the significant risk of suffering harm if he remained in his mother’s care.
23. In March 2017, the Council instructed an Independent Social Worker (ISW) to complete a report for Mrs X and her husband to become Special Guardians of Child Y. Mrs X and her husband live in Spain and Mrs X is Child Y’s paternal aunt. The assessment was completed at the end of May 2017. The ISW recommended Mrs X and her husband be granted a SGO for Child Y, on the condition that the Council verifies the legality of making such an order in Spain where such an order does not exist. The ISW suggested other key actions the Council should complete before applying for the SGO. In early August 2017, the Council prepared an SGO Support Plan to accompany the SGO application to the Court.
24. In October 2017, a Child Arrangement Order was made in favour of Mrs X and her husband to care for Child Y. A Case Management Order then allowed Mrs X and her husband to remove Child Y from the United Kingdom to care for him in Spain. In February 2018, the Court made an SGO for Child Y in favour of Mrs X and her husband.
25. The Judge ordered the Council to provide or complete the following items/actions at its own expense:
1. A certified and translated copy of Child Y’s birth certificate
2. A certified and translated copy of the Case Management Order and any final order
3. A one-off payment of £2,600 to assist Mrs X and her husband with the costs of settling Child Y into their home in Spain
4. Amend the support plan to meet the cost of Spanish classes for Child Y for up to one year
5. Cover the cost of hiring a car seat for Child Y while in the UK for the Court hearing and one year’s membership of the Spanish Citizen’s Advice Bureau
6. Take steps to obtain Child Y’s passport to enable him to travel to Spain
7. A written explanation why Mrs X and her husband are not eligible for an SGA
26. On 7 May 2018, Mrs X made a complaint to the Council about its delay in providing her with the official documents she needed to obtain access to education and healthcare for Child Y in Spain. Mrs X told the Council the situation was urgent because the process for legalising Child Y’s status was lengthy and she was worried about him becoming an illegal immigrant when the UK leaves the European Union. Mrs X provided a list of the documents required to legalise Child Y’s status and urged the Council to check this with the Spanish Authorities. Mrs X also complained Child Y was not receiving any of the support the Council had set out in the support plan, including financial and educational support, therapy or access to training courses for Mrs X and her husband.
27. On 24 May 2018, the Council sent Mrs X and interim reply to her stage one complaint. In this the Council confirmed it would send its substantive stage one complaint response to her by 22 June 2018.
28. Mrs X contacted the Council on 29 June 2018 to chase its response to her stage one complaint. She also asked to escalate her complaints to stage two. The Council replied on 3 July 2018 and asks Mrs X to wait until she has received its stage one response before escalating to stage two to avoid further delay. Mrs X agreed and the Council sent its stage one response to her on 6 July 2018.
29. The Council’s stage one response confirmed it had obtained and sent Mrs X the following translated documents:

• February 2018 Court hearing
• SGO Order
• C60 document (form concerning judgements on parental responsibility)
• Court Judgement
• October 2017 Court Hearing
• Child Arrangement Order conferring parental responsibility
• Child Y’s birth certificate
• Medical report for Child Y

30. The Council’s response also noted Mrs X concerns about Child Y’s unmet needs. It sent a Social Worker to Spain to reassess Child Y and Mrs X (and her husband) to update the SGO Support Plan. The Social Worker’s visit took place on 29 May 2018. The Council told Mrs X it will implement the support set out in the plan subject to senior management approval and once Mrs X has provided the completed paperwork and proof of income for the SGA financial assessment.
31. Mrs X requested escalation of her complaint on 16 July 2018. On 24 July 2018, the Council appointed an IO and IP to complete the investigation of Mrs X’s stage two complaint. The IO confirmed Mrs X’s statement of complaint on 1 August 2018. The IO recorded 17 separate complaint issues broadly related to the Council’s failure to:

• provide translated documents
• provide funding for the support Child Y needs and to enable him to travel to the UK for contact with his parents, siblings and wider family
• cover the costs of a Spanish solicitor and barrister to help with legalising Child Y’s status in Spain and failing to make links with the Spanish authorities to establish what was needed to enable Child Y to remain in Spain before or after his move
• complete the SGA financial assessment, despite having all the information required from Mrs X
• reimburse the costs of private medical insurance and Spanish classes for Child Y, despite Mrs X providing bills to the Council
• provide Mrs X with a copy of the SGO Support Plan following reassessment in late May 2018
• provide Mrs X and her husband with funding and access to training courses and support available for Special Guardians
• agree to Mrs X’s request to be reassessed by the same ISW the Council used before the SGO was granted for continuity

32. The IO completed their stage two complaint report on 14 December 2018. Of the 17 complaints made, the IO upheld 13 complaints, partially upheld one complaint, did not uphold two complaints and made no finding on one complaint.
33. The IO made 16 recommendations to the Council to resolve the upheld complaints, which in summary were:

• to provide Mrs X with translated, sworn and apostilled court documents relating to Child Y’s care;
• to fund or reimburse Mrs X’s costs for Child Y’s support (classes, therapy sessions and books);
• to fund training, therapy/counselling sessions and provide backdated Special Guardian Allowance to Mrs X;
• to provide a copy of the updated SGO plan to Mrs X;
• to fund Child Y’s contact visits to the UK and arrange for him to have contact with his sibling;
• to continue to pay the costs of obtaining approval of Mrs X’s Special Guardianship and Child Y’s residency in Spain until resolved; and,
• an apology to Mrs X for the Council’s failure in addressing the upheld or partially upheld issues identified.

34. The Adjudicating Officer sent the Council’s response to the IO’s report to Mrs X on 15 January 2019. The Council agreed with all but one of the outcomes the IO reached. The Council agreed to complete all the recommendations made and apologised to Mrs X for the problems she had experienced. The Council told Mrs X that by the end of January 2019, it would arrange for Officers to visit her in Spain to ensure the required documents were correctly sworn, translated and apostilled to progress formalising Child Y’s legal status in Spain.
35. Since completing its stage two response, the Council has made payments to reimburse Mrs X for some of the costs she has incurred as recommended by the IO. In April 2019, the Council made payments to Mrs X for backdated SGA, accommodation costs, Child Y’s medical insurance and CoramBaaf membership for Mrs X (for therapeutic parenting). Mrs X had to periodically contact the Council to remind it to refund or reimburse costs incurred in caring for and supporting Child Y.
36. In July 2019, Mrs X told the Council Child Y’s placement with her was at risk of breaking down. Mrs X returned to the UK to meet with Council Officers on 17 October 2019 after receiving no further responses to her requests for help in July 2019. to discuss and attempt to resolve the issues with Child Y’s placement. Mrs X has shared a recording of this meeting with us, which includes the Council committing to completing the outstanding recommendations from the stage two complaint investigation as soon as possible. The Council also committed to:

• providing apostilled documents from the SGO court bundles (February and October) Mrs X had requested for sworn translation in Spain;
• payment for an initial assessment of Child Y by a therapist in Spain and then payment for the therapy sessions recommended;
• reimbursement of school workbooks Mrs X had purchased for Child Y;
• reimbursement of Spanish, English and Maths tuition for Child Y;
• reimbursement for therapy books Mrs X had purchased to support Child Y when therapy sessions were not arranged;
• agreeing to fund for Child Y’s contact visits to the UK in advance, provided Mrs X gave details of planned arrangements at least six weeks before travel;
• reviewing the SGO support plan and allowances to decide whether this should be extended beyond the usual three years.

37. The Council made further payments to Mrs X in July and December 2019. The Council also made payments directly to providers assisting with the translation of documents and the legal process of securing Child Y’s status in Spain – much of these were delayed and Mrs X needed to prompt the Council to make the payments. Mrs X also had to raise concerns with the Council about its payments to her being in UK Sterling as exchange rate charges and transfer fees meant she did not receive correct amounts when the payments were converted into Euros. Mrs X told the Council she was regularly having to make up the shortfall in payments it made to her. The Council originally told Mrs X there was nothing it could do about the currency conversion issues, but appears to have recently agreed to make payments in Euros to Mrs X.
38. At the end of September 2019, the Council asked us if we would accept early referral of Mrs X complaint rather than completing a stage three complaint review. The Council told us it was unlikely to achieve any more for Mrs X by taking her complaint to a Review Panel and it would be difficult to arrange Mrs X attending the review meeting because she lives abroad. We accepted early referral of Mrs X’s complaint given the circumstances of her case.
39. At the end of October 2019, the Council provided the translator with the following sealed and apostilled documents, for translation in Spain:

• Case Management Order October 2017
• Child Arrangements Order October 2017
• Typed Judgment February 2019
• Special Guardianship Order February 2018
• C60 Certificate
• Order giving Permission to Remove a Child from the United Kingdom November 2019

Mrs X says the Council did not pay the translator for translation of these documents until January 2020, which meant their release to Mrs X was significantly delayed.

40. To date, the status of the Special Guardianship for Child Y and his residency in Spain have yet to be confirmed. Since referral of Mrs X’s complaint, she has told us she is currently the subject of an investigation by the Spanish tax authorities because of the payments the Council has made to her for Child Y’s care and support.
41. Mrs X says Child Y is currently unable to leave Spain to have contact with his family in the UK. This is because his ability to remain in Spain will be limited to 90 days on his return as he is a person from a non-European Union country (following Brexit).

Analysis

42. When it granted Special Guardianship to Mrs X and her husband for Child Y, the Court gave clear instructions on what the Council was expected to do. Three years on, the family are no closer to achieving the legal status needed for Child Y to remain with Mrs X and her husband in Spain. This is fault and causes significant difficulties and injustice to Child Y and Mrs X (and her husband).
43. I recognise the circumstances of placing a Looked After Child with Special Guardians outside the UK are uncommon. Nonetheless, a large proportion of the difficulties in this case might have been avoided if the Council had established contact with the appropriate Spanish authorities and obtained specialist legal advice before the SGO granted. Failure to do this has added to the significant injustice caused to Child Y, Mrs X and her husband. The Council appears to have relied too heavily on Mrs X to resolve the issues that have occurred despite the Court being clear on the Council’s responsibilities in this case.
44. I commend the Council for funding the assistance Mrs X has been receiving from lawyers and other professionals in Spain to resolve Child Y’s residency and status issues, and subsequently the tax investigation of Mrs X by the Spanish authorities. There remains however fault in the Council’s handling of this as there have been significant delays in it making payments to those professionals. This has no doubt caused frustration and embarrassment for Mrs X who must directly interact with the professionals to progress matters.
45. The statutory complaint investigations undertaken by the Council seem to have overlooked the significant injustice caused to Child Y by the Council’s faults. His legal status in Spain remains unresolved and this impedes his ability to have contact with his family in the UK. This fault is significant as it impacts on Child Y’s right to maintain connections with his family and identity.
46. The Council has failed to complete the actions recommended by the IO in their stage two complaint report. The main action being provision of all the documents Mrs X needs to secure Child Y’s residency status in Spain. The Council has also been significantly delayed in completing other actions. There is no record that it kept to its commitment to visit Mrs X, as it committed to arrange by the end of January 2019 nor the promises made during its meeting with her in October 2019. It has also repeatedly delayed making payments to Mrs X and third-party service providers, causing hardship and inconvenience.
47. There is no doubt about the enormous pressure this situation has placed on Mrs X and how the amount of time she has spent trying to resolve these issues have have taken her focus away from helping Child Y settle in his new surroundings and family. It is unsurprising that the placement was at risk of breaking down in July 2019. The Council’s failure to act at this stage was fault and caused further injustice and inconvenience to Mrs X, particularly as she then travelled to the UK to meet and discuss her concerns with the Council in person in October.
48. There was significant delay in the Council’s complaint handling. Stage one took 43 working days to complete, when this should take a maximum of 20 working days. Stage two took 117 working days to complete from the date Mrs X’s statement of complaint was confirmed. This stage of the process should take a maximum of 65 working days to complete according to the statutory guidance for children’s social care complaints. The Council’s handling fails to address or offer any remedy to Mrs X for these delays in its process, which is fault.
49. The Council also appears to have hindered Mrs X’s access to stages of the complaints process. This is apparent in the Council’s contact with Mrs X in early July 2018, when it told her escalating her complaint to stage two before she had received its late stage one complaint response would only delay the process further. The Council acted in a similar way following the conclusion of the stage two complaint in that it considered little merit in allowing Mrs X to escalate her concerns to stage three.
50. The Council’s explanation to us that there seemed little benefit in a stage three panel review because it had agreed to the IO’s findings at stage two overlooked Mrs X’s concerns that the recommendations at stage two were incomplete after a several months. In response to our draft decision, the Council has explained its meeting with Mrs X in October 2019 was held with the aim of resolving the issues highlighted by the stage two complaint investigation. While I accept it was never the Council’s intention to gatekeep or hinder Mrs X’s access to the third stage of complaints procedure, this was the ultimate result of its approach.
51. Although Mrs X has been able to bring these concerns to us, the Council’s approach was fault as she was unable to complete the statutory complaints process. The resulting time and trouble caused to Mrs X is reflected in the remedies I am recommending below.

Agreed action

52. The financial remedies in this case are made in Euros (€) to ensure Child Y and Mrs X suffer no loss through currency conversion charges and transfer fees.
53. Within one month of the final decision, the Council agrees to:

• apologise to Mrs X and Child Y (if Mrs X considers this appropriate);
• pay €4,700 for the delay in legalizing Child Y’s status in Spain, the impact this has had on his contact with family in the UK and for the distress, time and trouble caused to Mrs X in seeking to resolve the issues for Child Y;
• set up an arrangement to ensure the Council makes all outstanding and future payments to Mrs Y in Euros only and within two weeks on production of receipts or equivalent evidence – such an arrangement should also apply to any payments due directly to third-party providers involved in supporting Child Y;
• arrange to review SGO support plan and allowances to decide whether this should be extended beyond the usual three years;
• add copies of the stage two IO report, AO response and this decision to Child Y’s file for reference; and,
• provide Mrs X with apostilled and sworn translated copies of this decision statement and its apology letter.

54. The Council should obtain its own specialist legal advice, from an appropriately qualified legal professional who has knowledge and experience of the English and Spanish legal systems for Special Guardian Orders and their Spanish equivalent, to support securing Child Y’s residency status. This Legal Adviser must be paid for by the Council but also able to seek instruction from Mrs X and her legal representative where necessary.
55. The Council should continue funding the costs for professionals required to secure Child Y’s legal status in Spain and for Mrs X’s tax lawyer until issues are fully resolved.
56. Within three months of the final decision, the Council should review procedures to ensure this embeds court guidance issued about the placement of children with kinship carers abroad in Birmingham City Council v (1) W (2) Q (3) K, T and U [2019] EWFC 59.
57. The Council should provide us with evidence to show it has completed the above recommendations.

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Final decision

58. I have completed my investigation and uphold Mrs X’s complaint. Mrs X and Child Y (and Mrs X’s husband) have been caused significant injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman