Summary: Mr J complained he had been unable to see his children at a contact centre since 2018 because of Council fault. He felt the Council should promote and support his children’s contact with him and that its failure to do so had caused him significant distress and time and trouble going to the contact centre but not seeing them. There is no evidence of Council fault.

The complaint

1. The complainant, whom I shall call Mr J, says the Council delayed in arranging contact sessions between him and his children and failed to ensure the location offered for contact was suitable. The Council also failed to let him know in good time when contact was not taking place. Mr J last saw his children on 3 February 2018 and the lack of contact has caused him significant distress to the extent he had to engage in therapy.
2. He wanted the Council to reschedule the missed contact, pay for a counsellor and mediator to assess the children and to monitor contact, pay for an application to court as the court order setting out contact was not being adhered to and for a payment for distress and time and trouble as well as compensation for loss of earnings from taking time off to see the children.

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What I have investigated

3. I have investigated most of Mr J’s complaint except where it concerns issues that are too old, where I consider his injustice is too limited and where the matter can only be resolved by the court. I explain this further at the end of the Statement.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. 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)
7. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe the injustice is not significant enough to justify our involvement, or we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A(6), as amended)
8. 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

9. I have considered the information Mr J provided with his complaint, and information provided by the Council in response to our enquiries. I sent the Council and Mr J a copy of my draft decision so I could take any comments they made into account before issuing a decision.

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What I found

Relevant law and guidance

The Children Act 1989

10. The Children Act 1989 required courts to consider a child’s ‘wishes and feelings’ when that child’s welfare was in issue in a court. In parallel with this, the United Nations Convention on the Rights of the Child 1989 Art 12.1 – though not formally part of the Act – says: ‘States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given in due weight in accordance with the age and maturity of the child’. This means children’s views, and decisions, have to be given ‘due weight’ when arrangements are being made for them, such as when they are expected to have contact.

Contact Orders

11. If the court has made an order for contact, it expects the resident parent to encourage a child to have contact. If a child refuses to have contact with the non-resident parent, it is likely to be a matter for the court. Only courts can change contact arrangements.

Background

12. Mr J is the father of two children who live with their mother.
13. In December 2017, the court made an order that the Council should supervise contact between Mr J and his children ‘on four occasions each year for a period of up to three hours’. The contact was to take place in a contact centre where the children lived.
14. Mr J did not think the contact centre was appropriate. He has told me that he has seen people allowed to enter without signing in. I am not investigating this part of his complaint.
15. The Council did not contact Mr J about arranging contact until May 2019. The Council accepts there was delay. But it would have been reasonable for Mr J to complain about this to us much sooner given he expected the Council to begin arranging contact in December 2017 and it did not. He has provided no compelling reason for us to investigate this now. I am not investigating this part of his complaint.
16. Following legal advice (in February 2020) the Council is not offering a contact supervision service to Mr J or his family. This can only be challenged in court.

What should have happened

17. Mr J reports that there have been five failed contact sessions since September 2019, including one in 2020. The first session was abandoned because of the emotional presentation of the children at the time, not through any fault by the Council. The Council did agree Mr J could have been told of this before the children left the centre. However, I am not finding the Council at fault given that the children could not have been made to see Mr J against their wishes even if they had stayed at the centre. The lack of notice (as the children were already at the contact centre) would have made it unlikely Mr J could have been prevented from making the journey and missing work.
18. I have also received confirmation from the Council that the children were at the contact centre on the agreed dates in 2019, even though they then said they would not have contact with him. Because of the lack of notice, the Council was, again, unable to save Mr J from the expense involved in going to the contact centre and missing work. The Council is not at fault for this. Rescheduling missed contact or having a counsellor/mediator assessing the children and supervising contact is unlikely to change this, because the children chose not to see him. The court could be asked to amend the contact order. The Council has told me the children have been at the contact centre on each occasion contact has been arranged.
19. I have an email from Mr J to the Council on 28 February 2020 where he said there was no point in him attending (what he thought was also likely to be missed) contact the following day if the contact centre could not confirm the children had agreed to have contact. He asked the centre to share this email with the children’s mother ‘so she is clear about the reasons and this remaining my position’. The Council would not be able to confirm the children agreed to contact as, even when they came to the contact centre, it would not necessarily mean they would agree to see him. This is not due to Council fault. The contact centre was not fulfilling the role of an intermediary and the Council said it would not fulfil this function for Mr J after taking legal advice. This meant neither the Council nor the contact centre had a clear responsibility to share Mr J’s emails with the children’s mother or that different arrangements would have been made even had they done so.
20. Mr J says the Council needs to encourage contact. We cannot achieve this outcome for Mr J. The Council is clear it has taken legal advice and will not do this for Mr J. As the courts can change contact orders, Mr J needs to present this to the court for its view. It is a matter of private law, however, so we could not ask the Council to do this.

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Final decision

21. There is no evidence of Council fault.

Parts of the complaint I did not investigate

22. I did not investigate Mr J’s complaint that the Council had taken too long to approach him to arrange contact. This is because it happened too long ago (i.e. December 2017) for me to investigate this robustly. Mr J has not provided a compelling reason to suggest why we should exercise discretion. Mr J disagrees with this.
23. I did not investigate Mr J’s complaint that people were allowed into the contact centre without signing in. The injustice to him is not sufficient for me to investigate this. Mr J says it is evidence of bias on the part of the Council that he and his father have had to sign in when other (maternal) family members have not. He says this has ‘likely’ negatively influenced his children against him. This does not change my view that any injustice resulting from that is not significant especially as, in the case of the first contact he complains about, the children left before he arrived (and thus signed in) at the centre.
24. I did not investigate the part of his complaint about the suitability of the contact centre. As this was specified in the court order, Mr J would need to go back to court if he felt it unsuitable.

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Investigator's decision on behalf of the Ombudsman