Summary: Mrs B complained the Council failed to properly advise or support her when she took on the care of her two grandchildren after the sudden death of their mother. We have not found fault with the actions of the Council.

The complaint

1. Mrs B complained that Durham County Council (the Council) failed to properly advise or support her when she took on the care of her two grandchildren following the sudden death of their mother (Mrs B’s daughter). Specifically, it:
• failed to properly assess the suitability of the children’s father to look after the children, ignoring or not finding out about serious criminal activity he had been involved in;
• failed to explain the options open to her in terms of caring for the children;
• wrongly advised her that she should apply for a Child Arrangement Order without discussing the implications and failed to mention the possibility of Special Guardianship; and
• insisted the arrangement was a private family arrangement so it did not have to pay for the court fees or provide other support.
2. Mrs B says she was caused severe distress at an already difficult time and has had to borrow money to properly support the children, one of who has significant extra needs.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the organisation 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

Friends and family carers

6. Section 20 of the Children Act 1989 says councils shall provide accommodation to any child in need within their area who needs it, because:

• there is nobody with parental responsibility to care for them;
• they have been lost or abandoned; or
• the person who has been caring for them being prevented from providing suitable accommodation or care.

7. Councils cannot accommodate a child under section 20 if a person holding parental responsibility objects and is willing and able to care for the child or arrange care for the child.
8. Councils need to distinguish between private arrangements made between parents and carers, and arrangements in which the child is accommodated under the Children Act 1989 and so is a looked after child.
9. When a child needs to be accommodated, the law says councils should consider placing them with family or friends first. Friends and family foster carers can receive a fostering allowance and other practical support from the council.
10. The courts have considered whether arrangements for a child to live with a relative or friend are truly a private arrangement. In a key case (London Borough of Southwark v D [2007] EWCA Civ 182), the Court said where a council has taken a major role in arranging for the friend or relative to care for the child, it is likely to have been acting under its duties to provide the child with accommodation.

Special guardianship

11. Special Guardianship is an order made by the Family Court that places a child or young person to live with someone other than their parent(s) on a long-term basis. The person with whom a child is placed will become the child’s Special Guardian.
12. Government guidance on the Special Guardianship Regulations sets out the circumstances in which councils should provide financial support to a Special Guardian. These include situations where there is a financial obstacle to a guardianship arrangement being made, and where the child requires special care. There is no overall obligation on councils to provide support in every where a Special Guardianship Order (SGO) is made.

Child arrangement order

13. A Child Arrangement Order (CAO) is made by a court to regulate the arrangements regarding where a child should live or spend time with. It gives parental responsibility to the holder which can be shared with others. The Council has a discretionary power to provide financial support to people who have a CAO.

What happened

14. Mrs B has two grandchildren. They lived with their mother, (Mrs B’s daughter) and her partner. Their father lives with his parents at a different address.
15. When Mrs B’s daughter died suddenly, the children had been staying with Mrs B and her husband Mr B. They remained living there after their mother died and saw their father at weekends. The police referred the case to the Council and a social worker contacted Mr B by telephone shortly afterwards. The case notes record that Mr B said he and Mrs B would like help and support caring for the children and becoming their guardians.
16. Initial discussions by professionals involved in the case show that the Council believed the maternal grandparents wanted to seek an SGO and be the long term carers of the children. The Council said the children were safe with Mr and Mrs B, but, noted that they did not have parental responsibility for the children. The Council had concerns about their father (who did have parental responsibility) wanting to care for them as he had some criminal convictions. The Council arranged a strategy meeting to discuss the case further.
17. Around this time Mr B asked for support to bring up the children and be their parents. He specifically asked for help in claiming benefits for them and whether there would be financial support as ‘guardianship parents’. The Council said that the case would be discussed at a strategy meeting.
18. The Council visited Mr and Mrs B at home prior to the strategy meeting taking place. Mr and Mrs B said during this meeting that they wanted support in becoming the children’s legal parents as they did not consider the children’s father was a suitable full-time carer. They asked again about benefits and the Council advised them to contact the relevant agencies directly to organise payments as the Council had no control over these issues.
19. At the strategy meeting (where the police and the children’s schools were present) the Council decided the case did not meet the threshold for the child protection process (it did not consider the children were currently at risk of significant harm). But it was concerned that if their father decided to care for the children full-time then the Council would need to understand the risk to the children and whether the Council would need to take action to prevent him doing so. The meeting agreed to complete an assessment of the whole family and then make a decision as to whether legal action was needed.
20. The Council also discussed the case from a legal perspective at a Legal Review Clinic and came to a similar conclusion.
21. The Council spoke to Mr B after the meeting and explained that the children would remain on a section 17 plan as children in need rather than starting the child protection process. The Council said concerns had been raised about the children’s father and step-father that needed exploring, but at present the father had parental rights to pick the children up from school or request information about them. The Council advised Mr and Mrs B to seek their own legal advice if they wanted to become the children’s legal guardians. A solicitor would be able to advise them about their options and contact the Council solicitors who would support the process.
22. Mr and Mrs B asked again about transferring benefits and the Council agreed to speak to its benefits adviser for advice. Mr and Mrs B also said they had spent most of their money on their daughter’s funeral and would struggle to involve solicitors. A couple of weeks later Mrs B told the Council they had contacted a solicitor who was going to apply for Special Guardianship and contact the Council solicitors for help with funding this.
23. The Council visited the children’s father as part of the assessment process and also spoke to his parents who helped look after the children during the weekend. At this stage their father said he wanted to look after them in the longer term. His parents felt the current arrangements were in everyone’s best interests.
24. Over the next few weeks, the father changed his mind over long-term care and said the current arrangements worked best. Although on other occasions he still expressed an interest in caring for the children in the future.
25. At a child in need meeting where Mr and Mrs B and the children’s father were present, Mrs B expressed concerns about the uncertainty of the current situation as they did not have parental responsibility but were caring for the children most of the time. The social worker said they would ask the legal team to look into either an SGO or CAO.
26. The Council discussed the case a few days later at a legal review clinic. It concluded that the children were settled living with Mr and Mrs B and seeing their father regularly. He was in agreement with the arrangement, which was a family arrangement, not put in place or dictated by the Council. Mr and Mrs B could apply for a court order privately if they wished to do so. The Council had no safeguarding concerns at present and if the father wanted the children back in his care the Council would not oppose it. The Council did not consider it had a duty to provide financial support to Mr and Mrs B.
27. The Council informed Mrs B of its decision the next day. She was unhappy and said the Council had not properly considered the father’s history. The Council advised Mrs B to seek legal advice about her options. It repeated this advice at a home visit a couple of weeks later.
28. The notes of the final child in need meeting held the following month, indicated that the family had decided a CAO would be the best way forward and Mrs B had instructed a solicitor. The notes said the family members were happy with the outcome and wanted some closure for the children.
29. Mr and Mrs B obtained a CAO through the courts. They asked the Council to refund the costs of the application and for help with building an extension at home to accommodate the children. The Council declined to help, and Mrs B made a formal complaint.
30. The Council did not uphold the complaint. It explained its view that the family had made and agreed the caring arrangements of the children without the Council’s involvement. The Council had no safeguarding concerns and would not oppose the father if he applied for the care of the children. In reaching this decision it had fully considered the history of all family members and spoken to everyone involved. It had obtained information from the relevant agencies including the police and the children’s schools. It did not agree that it had advised Mrs B to obtain a CAO and noted the case records which supported its view that this was a family arrangement. The Council had only advised Mr and Mrs B to obtain their own legal advice so they could decide on the best option for them.
31. Mrs B then complained to us. In response to my enquiries the Council further explained that it was not a situation where the children were at risk of becoming looked after and there were no safeguarding issues which required the Council to intervene directly or impose any conditions to keep the children safe.

Analysis

32. Looking at each part of the complaint in turn:

failed to properly assess the suitability of the children’s father to look after the children, ignoring or not finding out about serious criminal activity he had been involved in

33. The Council was aware from the beginning of the children’s father’s criminal history. The police were involved in the initial strategy meeting and the history was referred to at each stage the case was discussed. I am satisfied that the Council took account of these issues when it carried out an assessment, made its decision that the children were not at risk and that it had no safeguarding concerns about the care arrangements. During this process it did consider the possibility that it may need to intervene if Mr B took care of the children himself. This did not happen and so no intervention was necessary. I have not identified fault here.

failed to explain the options open to Mrs B in terms of caring for the children

34. Mr and Mrs B were clear from the beginning that they wished to care for the children and become their legal guardians. The Council’s focus was on the welfare of the children and the stability and safety of the care arrangements. It did not raise any concerns about Mr and Mrs B’s care of the children and explored the father’s situation in case the caring arrangements changed. It advised Mr and Mrs B that they should seek legal advice about their options including securing parental responsibility for the long term. As the Council was not considering taking the children into its care, it was not its role to advise Mr and Mrs B on their legal options. I have not found fault with the Council’s actions here.

wrongly advised Mrs B that she should apply for a Child Arrangement Order without discussing the implications and failed to mention the possibility of Special Guardianship

35. I have not seen evidence that the Council specifically advised Mrs B to apply for a CAO. The social worker at different points mentioned that both an SGO and a CAO were a possibility, but advised Mr and Mrs B to seek legal advice which they did. Initially they said they were going to apply for an SGO but later applied for a CAO which was granted. This decision appears to have come from family discussions and was not directed by the Council. Its main concern was that Mr and Mrs B should obtain parental responsibility somehow, to ensure the wellbeing of the children but the decision on which route was theirs to make.

insisted the arrangement was a private family arrangement so it did not have to pay for the court fees or provide other support.

36. The Council consistently believed the care arrangements were agreed by the family and the Council was not involved in those decisions. It considered the possibility it might have to become involved, but those circumstances did not arise. It had no concerns about the care arrangements and there was never a question that Council would have to accommodate the children. I understand Mrs B disagrees with the decision and is disappointed that the Council has not provided financial support. But I consider the Council has taken into account all the relevant information and reached its decision. It has also fully explained its reasons for concluding the care is a family arrangement. I have not identified fault in the way the decision was made.

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Final decision

37. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mrs B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman