Summary: Mr X complained the courts made an unlawful restraining order based on the Council’s advice, when the Council should instead have started care proceedings. We will not investigate this complaint, as all issues Mr X complains about were considered in court or inextricably linked to the court proceedings.

The complaint

1. Mr X complained the courts issued an unlawful restraining order based on the Council’s advice, leading to his imprisonment. It later began care proceedings. However, in Mr X’s view, those proceedings should have started earlier instead of a restraining order being used to achieve the same purpose.

Back to top

The Ombudsman’s role and powers

2. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
3. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
4. 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)

Back to top

How I considered this complaint

5. I considered the information Mr X provided when he complained.
6. I considered information the Council provided.
7. I considered Mr X’s and his solicitor’s comments on my draft decision.

Back to top

What I found

8. The courts made a restraining order against Mr X after an incident between him and his wife. The Council is involved with Mr X’s family, due to child protection concerns. Mr X says when his wife applied to have the restraining order revoked, the Council told the court Mr X was a high risk. This led to the court disregarding his wife’s application. Mr X says the Council’s actions were malicious.
9. We cannot investigate what happened in court. We cannot investigate decisions made by the courts and we would have no power to say whether a restraining order should have been made or revoked. Mr X’s solicitor told us the Council should have started care proceedings earlier, but instead used the restraining order incorrectly to achieve the same purpose. It is likely the Council believed the risk to the children was reduced or removed for the period during which the restraining order was in effect, and it therefore did not believe care proceedings to be necessary. We cannot comment on whether it was right for the court to issue a restraining order or not.
10. The Courts have said that we also cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. So, we cannot consider the Council’s actions and decisions in relation to the restraining order, because the order itself is not within the Ombudsman’s jurisdiction. The issues Mr X raises are inextricably linked to the court proceedings.
11. Mr X complained the Council referred to the restraining order in its later decision to begin care proceedings, but the order had by that time been ruled unlawful and there had not been any further incidents. Mr X and his solicitor question the timing of the Council’s application to the courts because their application was based on historical events. We cannot consider complaints about councils’ decisions to begin court proceedings, or the representations councils make to court. It is reasonable to expect Mr X to raise his concerns during those proceedings for the court to consider in coming to a decision.

Back to top

Final decision

12. The Ombudsman cannot investigate this complaint. This is because it relates to issues that have been considered in court.

Back to top

Investigator's decision on behalf of the Ombudsman