Decision : Upheld
Decision date : 20 Sep 2018
The Ombudsman's final decision:
Summary: Mr X complains the Council failed to engage with him and his wife, ignored their wishes and failed to take actions it agreed when their adopted son wished to visit his birth family. I found there was fault in the Council’s actions and recommended an apology be provided to Mr and Mrs X.
- Mr X complains the Council failed to engage with him and his wife properly when their adopted son (referred to in this statement as Y) wished to visit his birth family. They say the Council ignored their wishes and failed to take actions it agreed to. They feel Y is at risk now he is living with members of his birth family.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I spoke to Mr X and considered information he provided about his complaint. I asked the Council for information and I considered its response to the complaint.
- I considered Y’s case notes and assessment and relevant legislation.
- I sent a draft decision to Mr X and the Council to enable them both to comment. I sent a second draft as a result of comments I received. I considered the responses from both parties before reaching a final decision.
What I found
- In 2008 Mr and Mrs X legally adopted their son Y and several of his siblings. The children had been fostered by them several years earlier.
- During 2017 Mr and Mrs X were struggling to cope with aspects of the children’s behaviour. There were incidents of aggression towards Mr and Mrs X.
- In March 2017 following an argument between Y and Mrs X, Y refused to return home. Mr X told the Council that Y’s aggressive behaviour towards Mrs X could not continue and Y had been associating with a group taking drugs and had started taking drugs himself. The Council’s records stated Mr X felt they had to make Y homeless as they could no longer care for him. Mr and Mrs X told me they did not make Y homeless. However, the Council found a temporary placement for Y. As he was 16 years old, Y signed himself into foster care.
- In May 2017 one of Y’s siblings went to stay with her birth family. In late May 2017 Y also expressed an interest to visit the family for a couple of weeks.
- In June Mr and Mrs X said they were concerned that Y’s birth family were feeding negative information to Y’s sister, who was still staying with the birth family. They were concerned about her welfare. They were also concerned about Y visiting the family. They felt such a trip would impact him negatively.
Mr and Mrs X’s complaint
- In June 2017, Y told his foster carers he did want to visit his birth family. They persuaded him not to do this. Social workers told Y that they would not agree to him going. If he did, they said they would have to report him missing to the police.
- Y was adamant that he would go in any case. The Council says social workers managed to agree with Y that he would wait and carry out a visit in a planned way.
- Mr and Mrs X complained that social workers failed to engage and consult with them about Y’s trip.
- To assess whether it would be safe for Y to visit, social workers visited the birth family and met several family members at their homes in early July 2017. On 6 July after officers returned, they asked Mrs X to let them know her availability to meet and discuss a plan for Y. I am aware that at around that time Mrs X spent some time in hospital.
- On 11 July council officers spoke with Mrs X. Mrs X stated she could not take part in a meeting about the trip until September. She explained to the Council, at that time, she was focussed on dealing with the behaviour of Y’s younger sister which was of concern to her. Mr and Mrs X sought a meeting with social workers alone, before the meeting involving Y to discuss the trip. Mrs X said this was what the Council had agreed.
- The Officers explained that Y needed to be at the meeting as it was about him. They suggested they held the meeting at Mrs X’s home. They stated the meeting was needed far sooner than September to be fair to Y. Officers responded to Mrs X’s concerns about Y’s sister. However, their records show they felt Mrs X was being inflexible and may be trying to delay Y’s trip. Mr and Mrs X considered the Council’s comments were unfair. They say the reason Mrs X could not meet the Council was made clear. She did not consider she could not leave Y’s sister at home on her own.
- The Council organised a meeting for 14 July, where Y would be supported by his foster carer. They made Mrs X aware of this and suggested that if Mrs X could not attend in person she could dial into it by telephone. I understand Mrs X did not feel able to take part in the meeting.
- On 1 August 2017, a social worker visited Mr and Mrs X. They discussed Y’s trip, which was being planned for later that month.
- The social worker acknowledged Mr and Mrs X were concerned that the situation may be overwhelming for Y. She stated she would ask that the trip included other things in addition to seeing his family and visiting his mum’s grave. The case notes for the meeting acknowledged Mr X’s concern that they had not been kept in the loop about Y’s trip, but she noted the Council was unable to ask them to make decisions on Y’s behalf. The social worker’s record of the meeting went on to record that Mr and Mrs X had normal parental worries about the trip. The notes stated “[Mr and Mrs X] feel that if [Y] does not wish to come home he will stay there I assured them that if he were to do this he will be retrieved by the police if necessary.”
- Mr and Mrs X sent me notes they emailed to the council the following day that also record what was agreed. They noted an agreement that Y’s foster carer (a policeman) would keep a respectful distance but Y would not be allowed to spend time on his own with his birth family. The notes say the social worker agreed some downtime (e.g. sight-seeing) would be planned into the visit and that Y would not be allowed to remain in Scotland permanently. The notes also say the social worker agreed the police would be called if Y did not wish to return.
- When the Council spoke with Y ahead of his trip they agreed it would be for two nights (Friday and Saturday), returning on Sunday morning. Y agreed that if he felt uncomfortable he would be able to tell his foster carer and they could come home. The Council’s case notes show that Y understood officers were concerned about his safety and wanted to prevent him being overwhelmed. But, officers agreed to Y’s request not to do sight-seeing on this trip. The Council organised hotel rooms for Y and for his foster carer to stay in.
- In response to my enquiries the Council stated the plan to call the police was to be at the discretion of the foster carer, if the visit to the family was ‘problematic’. The Council told me they were confident the foster carer would be able to make a good assessment of the benefits of calling the police or not.
- The Council did not agree that it failed to listen to Mr and Mrs X’s concerns about the trip.
- Case notes on 11 July indicated a social worker and Y’s foster carer had acknowledged it was a possibility that Y would not return if he visited, but they resolved to keep reminding Y of all his opportunities in his home city and resolved to support him.
- On 14 August when Y was due to return home with his foster carer, Y told him he wished to stay. He indicated this would be for two or three weeks. The Council’s position was that it had to take account of and be led by Y’s wishes and the police would not be able to intervene to force Y to return due to his age. It stated Y was aware that, because of his age, the police could not compel him to return to his parents. The Council noted Y’s foster carer was also aware of this.
- Mr and Mrs X were unhappy that the Council had allowed Y to stay. They stated they had parental responsibility for Y and had not given their consent for the trip. They had also expressed their concerns about the trip several times.
- Following Y’s decision to stay, the Council arranged for the police to conduct a welfare check. As Y had moved to another property the police did not see Y. The Council also contacted the social services department local to Y to ask them to visit Y and check on his wellbeing. A social worker visited Y at his uncle’s property on 26 September 2017. They found Y’s living conditions were acceptable and Y was clear that he wanted to remain there.
- On 19 October, a social worker took Y’s belongings to him and carried out an assessment. Y has not consented to this being shared. On 27 October, the Council signed Y off as no longer a child in care. The Council explained to Y that he was entitled to a leaving care service until he was 25 years old. They explained what this entailed if Y changed his mind in future and wished to get support from the Council.
- Mr and Mrs X shared a copy of an assessment carried out for Y’s younger sister, who lives with them. In it the social worker noted the upheaval forced upon the family when their childrens’ birth family made contact on social media. It noted Mrs X’s explanation of the family’s difficulties following the contact between the children and their birth family. The social worker described this as an unseen force that was difficult for Mr and Mrs X to counteract. She recognised the situation was difficult and draining for all the family.
- The social worker stated the birth family was having a huge detrimental impact to the family as a whole and the children may not recognise the increased opportunities their lives with Mr and Mrs X may offer. She recognised that the situation was very hard for Mr and Mrs X to manage.
Providing Accommodation under Section 20 of the Children’s Act
- Section 20(1) of the Children’s Act 1989 states that, generally, a council shall accommodate a child where the person looking after them (for whatever reason) is prevented from providing them with accommodation or care.
- Section 20(7) of the Act states a council may not accommodate a child if a person with parental responsibility for the child objects to it. Section 20(8) says someone with parental responsibility may also remove the child from a council’s care.
- However, Section 20(11) makes it clear that subsections (7) and (8) do not apply where a child has reached the age of sixteen and they decide they wish the Council to accommodate them under this section.
- Statutory Guidance “The Children Act 1989 guidance and regulations” sets out principles for decision making about the care of children. It promotes establishing the wishes and feelings of the child and taking them into account.
- Section 1.14 states the more mature the child, the more fully they will be able to participate in the decision-making process. When older children are involved, and particularly in a case of self-referral, there may well be a different perception of the child’s needs and interests as seen by the child and his/her parents. The guidance promotes giving information to children so that they are in a position to develop their own views and make informed choices.
- Section 3.196 of the guidance states that a child’s parents do not lose parental responsibility when a child is looked after. Section 3.197 states that the child’s care plan, including delegation of authority of the local authority to the child’s carer, should (where the child is under 16), as far as practicable, be agreed with the child’s parents and anyone else who has parental responsibility. However, it states “If the child is 16 or 17 the care plan should be agreed with them. A local authority cannot restrict a person’s exercise of their parental responsibility, including their decisions about delegation unless there is a care order or an emergency protection order in place”.
- The guidance provides questions to ask to decide whether a particular child, on a particular occasion has sufficient understanding to make a decision. These include, whether the child understands the question being asked, if they appreciate the options open to them, if they can weigh up the pros and cons of their options, if they can express their own personal view clearly and whether they can be reasonably consistent in their view.
- I did not find the Council failed to engage with Mr and Mrs X about Y’s trip to meet his birth family. There is evidence the Council invited Mrs X to take part in a meeting to plan for the trip. The Council would not agree to meet with Mr and Mrs X separately before the trip, without Y. The Council felt it was appropriate for Y to be in attendance so that his needs could be understood. I found no fault in the councils’ position on this. These are decisions that social workers are entitled to take.
- I note a social worker was able to discuss the trip with Mr and Mrs X before it went ahead, when visiting them to see Y’s sister.
- There is evidence the Council had, to an extent, taken on board what Mr and Mrs X said to the social worker when they met. To try to prevent Y being overwhelmed, the social worker attempted to introduce other elements to the trip as Mr and Mrs X had requested. Y chose not to do other activities alongside meeting his family, and the Council could not impose this upon him. In any event there seems no evidence he was overwhelmed.
- However, Mr and Mrs X say they agreed things with the social worker that the Council did not do. The most significant related to the action that would be taken if Y refused to return home. There is evidence that the social worker gave Mr and Mrs X an assurance that the Council would not allow Y to remain with his birth family if he refused to return. The social worker stated the police would be involved to bring Y home. In the event, the Council did not do this. It stated it was unable to carry through this course of action because of Y’s age.
- When Y decided to stay with his birth family, this was obviously very difficult for Mr and Mrs X. I recognise they were concerned and felt he should not be allowed to remain there. However, when a child reaches the age of 16, and has placed themselves into care, the Council must balance the concerns of parents with the child’s own wishes. Statutory guidance promotes establishing the wishes and feelings of the child and taking them into account. At age 16 the Council should primarily agree a care plan with Y, rather than with his parents.
- Although Y is relatively young, the Council considered this was a decision he could make and one it could not prevent him from making by involving the police. The records I have seen suggest Y was able to properly and reasonably articulate his decisions and his wishes in a consistent manner. Y’s age is relevant here. It is not unreasonable for the Council to have regard for Y’s decisions. This was a professional judgement for officers in what are difficult circumstances.
- While I do not have grounds to criticise the Council’s decision not to involve the police when Y did not wish to return, the Council was at fault for giving Mr and Mrs X the assurance that it could and would do this. It should also have been clearer that some actions Mr and Mrs X requested, may not be possible. The failure to do this left them with expectations about action that would be taken and frustration when this did not happen.
- Although the statutory guidance requires councils to take into account the wishes of children, the law does not remove parental responsibility, so had Mr and Mrs X felt it was imperative that the police brought Y home, due to immediate risk to Y, they could have consulted the police to request or discuss this. I cannot determine what action the police would have taken if either the Council or Mr and Mrs X contacted them.
Risks to Y from staying with his birth family
- I am unable to consider a complaint about Y’s continuing welfare without his consent to do so. However, I have considered the way in which the Council reached its decisions at the time Y visited his birth family, and decided to stay with them. This is to consider if there was any fault that caused injustice to Mr and Mrs X.
- It seems clear that Mr and Mrs X take a different view to Y about where Y should live and whether living with his birth family is best for him. Although I understand they are concerned, the older a young person gets, the more their views and wishes should be taken into account by a local authority.
- The Council’s records indicate they were confident that Y had the capacity and understanding of his situation to reach his own view about living with his birth family. The Council also took actions to follow up on Y’s welfare with the local authority where Y’s birth family live.
- Mr and Mrs X noted the Council had clearly highlighted concerns about the birth family in an assessment. So, they felt the Council’s decision to allow Y to remain with the family was wrong. There seems no dispute that the involvement of Y’s birth family has unsettled Mr and Mrs X’s children and that the draw for Y to visit and to live with the family has been extremely difficult for Mr and Mrs X to manage. I recognise that this is upsetting for them and that they consider he will have better prospects for the future by staying with them. However, despite the difficulties that the situation posed, the decision as to where to live is Y’s to make, even if it is a decision that others may consider unwise.
- I am satisfied the Council took into account the risk to Y in making its decisions. It visited the family ahead of the visit, Y was accompanied by his foster carer and it arranged for the appropriate local authority to visit Y after he decided to stay. The Council also returned to complete an assessment with Y. I have seen Y’s case notes and his assessment when considering the complaint.
- I recognise the difficulties Mr and Mrs X have faced, however, I do not consider there is fault in the way the Council has reached its decisions.
- The Council should provide a written apology to Mr and Mrs X for raising their expectations about the action that could and would be taken if Y decided against returning home. This should be done within four weeks of my final decision.
- There was fault. I have completed my investigation on the basis the Council takes the action agreed.
Investigator's decision on behalf of the Ombudsman