Summary: Mr and Mrs H complain about the Council breaching their confidentiality during a child protection investigation. And in wrongly telling them Mr H was not allowed home for a lengthy period. The Ombudsman finds fault in how the Council dealt with the issue of Mr H going home. It did not assess the risks. Instead it told Mr H he could not go home, without explaining this was voluntary. We also uphold a complaint that the Council did not consider whether it needed to complete a separate assessment for each of the children. We have found the fault with the instruction to not return home created uncertainty.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs H, complain about how the Council’s Children’s Services conducted its child protection investigation and child in need plan. They complain that:
• the Council did not conduct two separate assessments, which should have happened because of the children’s different fathers;
• the Council shared unnecessary information with the other father (whom I shall refer to as Mr M);
• the Council told Mr H not to return home for a lengthy period after the police said he could;
• the Council did not help Mr H to find temporary accommodation, after it told him not to go back to the family home;
• the Council said Mr H was a danger to children; but then invited him to a meeting held in a school;
• between June and October 2018 an officer did not respond to their emails;
• the Council’s record of the stage three complaint meeting was inaccurate.
2. Mr and Mrs H say the injustice to them cannot be fixed. Their family has been split up, they have had attacks on their property and their mental health has suffered. But as a remedy, they wanted the Council to:

• apologise;
• give staff training on dealing with vulnerable people and not making judgments that are wrong;
• repay them the £12000 they paid as rent on a second home;
• make a payment to recognise the distress the Council has caused them.

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The Ombudsman’s role and powers

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. 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. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr and Mrs H;
• made enquiries of the Council and considered its response;
• spoken to Mr and Mrs H;
• sent my draft decision to Mr and Mrs H and the Council and considered their responses.

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What I found

Legal and administrative background

7. The events this complaint relates to happened over 12 months ago. But as Mr and Mrs H only completed a statutory complaint process in December 2021, we have used our discretion to investigate.
8. The complaint covers a period when the council with responsibility for children’s services changed. The Council this complaint is registered to is the new authority. But it inherited responsibility for the actions of its predecessor. For simplicity, I have referred to ‘the Council’ throughout this statement.

Child protection

9. The Children Act 1989 says, where a council has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, it has a duty to make such enquiries as it considers necessary to decide whether to take any action to safeguard or promote the child’s welfare. Such enquiries should be initiated where there are concerns about abuse or neglect.
10. To start an investigation, a council only has to have ‘reasonable cause to suspect’. This is a lower burden of proof than that used by the police or the courts who require evidence ‘beyond reasonable doubt’.
11. Where an investigation finds a child has significant needs, the council may offer a service under section 17 (child in need) or section 47 (child protection) of the Children Act.

Data protection and information sharing

12. The Council’s Safeguarding Children Partnership Procedures Manual has a section on information sharing. It notes “safeguarding of children and individuals at risk” is one of the situations where the law allows practitioners to share information without consent. (UK General Data Protection Regulations and the Data Protection Act 2018)

The Council’s Family Agreements Good Practice Guidance

13. The Council’s Guidance said:
• it used Family Agreements (also known as Written Agreements or Working Agreements) to outline with a family steps they need to take to ensure that a child is kept safe from a specific risk;
• “The social worker must have a full and open discussion of the issues that are of concern with the family members/parents/carers responsible for the child. The parents or carers should be genuine partners in the process of drafting the Agreement and should be enabled to suggest and develop solutions of their own with guidance from the professionals involved”;
• the Family Agreement must be signed by all parties to the agreement;
• “Family Agreements should state that they are not legally binding…Family Agreements should clearly state the possible outcomes if the plan for the child is not adhered to”;
• it should integrate any Family Agreement within a child in need/child protection plan at the next available meeting or review.

Complaints procedure

14. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services.

What happened

Background

15. Mr and Mrs H live with their junior-school age son (whom I shall refer to a J). Mrs H has a teenage son (whom I shall refer to as K), who at times has lived with Mr and Mrs H. At other times, he has lived with Mr M (his father). Before the issue this complaint is about, the Council’s Children’s Services had not had any involvement with either child.

The referral and initial action

16. In the summer of 2017 the police made a referral to the Council, as it had received ‘electronic intelligence’ that somebody in Mr and Mrs H’s household had been electronically accessing indecent images of children. It advised it had arrested Mr H and then bailed him to stay away from his home for 28 days – until around the end of August.
17. The Council started a child protection investigation for J and K. Its social worker:
• spoke to Mrs H about the measures she would put in place to safeguard the children;
• spoke to Mr M to alert him to its investigations. It asked him to report any concerns he noted about K’s behaviour;
• spoke to J and K.
18. The social worker’s assessment noted:
• safety concerns about Mr H and the risk he posed to the children;

• “letter of expectation is in place to prohibit any unsupervised contact”;
• Mr H was not to return to the family home until it had completed a full risk assessment and the police had completed its investigation;
• the risks were minimised as Mr H was not in the family home;
• concerns Mrs H was ‘continually’ telephoning Children’s Services ‘demanding' Mr H was allowed to return home;
• the police’s bail conditions were only likely to apply for 28 days;
• it needed to conduct protective work with the children and awareness raising work with Mrs H to minimise the risks.

The end of the bail period and the child in need plan

19. After his bail period ended, Mr H telephoned the Council to advise it the police had said he could return home. Mr H says the social worker threatened to remove the children if he went home. The social worker emailed Mrs H:

“I don’t agree for him to return home the matter is still under police investigation. Therefore being released from custody without charge does not mean he is innocent. The police clearly state ‘the matter to which he was originally arrested will continue’”.

20. The Council completed its single assessment in the second week in September. In response to my enquiries, it said it had put a safety agreement in place during the assessment. That agreement said Mr H would not return to the family home until the Council had completed a risk assessment and the end of the police investigation.
21. The Council called a multi-professional meeting. All at the meeting agreed the case should be managed under a child in need plan. The plan that followed this meeting noted:
• it would draft a new ‘letter of expectation’. This would make clear that Mr H should not go back to the family home. And his contact with the children should be supervised;
• Mr H was going to make a housing application;
• it would conduct a risk assessment about Mr H’s contact with the children;
• protective work for J, K and Mrs H;
22. The Council carried out its risk assessment at the end of October. The record of the assessment says:

• Mr H denied the allegations against him;
• it was clear Mrs H was protective. Supervised contact should continue until the police had completed their investigations;
• at the visit:
• the social worker told Mr H “…it is advisable he stay away from the family home until the police complete their investigation”;
• Mr H was frustrated by the investigation and the stress this was causing him. The social worker apologised “…and stated that it was procedure”.

23. Around a month later, the social worker telephoned Mr H to advise him of a child in need review meeting, at J’s school, a couple of days later. The social worker’s record of this conversation notes:

• Mr H complained he had not received any paperwork for the meeting;
• Mr H also complained he had not received a “legal document suggesting he is not supposed to be living at home";
• The social worker advised he would have a discussion with his manager. “[B]ut so far as I am aware, if the investigation is still on going, then the [Council] has no choice. Mr [H] insist for paper work.”

24. The social worker spoke to their manager. The manager’s note says:

“because the investigation by the police was still pending, Mr [H] was not allowed back home as we still cannot ascertain the risk. Although the S W completed a risk assessment of him, however contact between him and the children can only be supervised and [K] has no contact with him until the investigation has been completed.

Telephone call to Mr and Mrs [H] separately telling them of decision that Mr [H] could not return home.”

The new written agreement

25. In January 2018, following a child in need review meeting, the Council prepared a document that is titled ‘Written agreement’. At its beginning, the agreement names J and K. It goes on to say:
• “The parents agree the following and understand that failure to adhere to the terms of this agreement may result in the Local Authority seeking Legal Advice to ensure the safety of their children”;
• “Both parents agree that contact between [J] and Mr [H] needs to be supervised at all times by Mrs [H] until the police have completed their investigation and a Risk Assessment completed by the Social Worker”
• “Mr [H] must not return to the family home until the police had completed their investigation”;
• the Council would check this by conducting monthly unannounced visits.

The copy the Council has sent me is signed by a social worker and Mrs H, but not by Mr H.

The new social worker and the end of the child in need plan

26. The next record on the Council’s file is from around two months later. The old social worker had left the Council’s employment. A month later the Council received an update from the police that its investigation was continuing, but the devices it had seized from Mr and Mrs H’s home were still waiting to be checked.
27. A new social worker made her first note on the file in June 2018. She tried to visit Mrs H, without success. She later spoke to Mrs H, who was complaining how long the process was taking. She felt Mr H should be allowed to come home.
28. The new social worker met Mr and Mrs H in July 2018. Her record notes:

• “[Mr and Mrs H] were advised that the [Council] could not prevent [Mr H] from being in the family home, however would expect [Mrs H] to supervise the contact he has with [J] until the Police have ended their investigation and nothing further is found.”
• both parents were happy for the child in need plan to end. The Council agreed and closed its case.

The new child in need plan

29. The next substantive record in the Council’s file is from June 2019. The police contacted the Council, as its investigation had found indecent images of children on one of the devices it had seized from Mr and Mrs H’s home. The Council decided to complete a child in need assessment.
30. As part of its assessment, it visited the family home. It found that Mr H had moved back in. It opened a new child in need plan. This included a safety plan.
31. After several visits, and a child in need review meeting at J’s school, the Council closed its case in October 2019.

The complaint

32. Mr and Mrs H began to complain to the Council in the summer of 2019. The Council’s July response included an apology if a social worker had spoken to Mr M assuming it was Mr H.
33. A later letter to Mrs H advised:

“[Mr H leaving his home] was your decision and to my knowledge the Social Worker never asked for this to happen. Children’s Social Care have been very clear that given our worries we would not want either of your children to be unsupervised with your husband. I do not uphold this complaint.’’

34. As part of an independent officer’s investigation at stage two of the statutory complaints process, a manager told the investigator:
• “We did not ask [Mr H] to move out.”
• “…this is what we do when there is a Police investigation. This family was not treated any differently from any other family.”
35. The stage three independent panel met in January 2022. The minutes of the meeting record that at times emotions were running high. One of Mr and Mrs H’s complaints was about the independence of the stage two investigator and inaccuracies in what she had told them about her investigation.
36. The Council’s response that followed that meeting noted:
• “It is acknowledged that completing two separate assessment documents would have been good practice… I am sorry that this did not happen and we will take the learning from this”;
• the panel had not made any finding on Mr and Mrs H’s comments about the independent investigator;
• a social worker Mr and Mrs H said had not responded to their emails over several months, had only been involved in June and July 2018. As it did not have evidence of any emails sent to the social worker, it had not made any finding on that part of the complaint.
• the panel did not uphold the other parts of Mr and Mrs H’s complaint.
37. Mr and Mrs H complained to the Ombudsman. I asked the Council what policy or procedure its instruction to Mr H about staying away from home was based on. Its response said:

“…there is no policy within the Local Authority procedures that underpins this approach, however the Local Authority has a duty to Safeguard and Promote the Welfare of children under Section 17 of the Children Act 1989. … The parent on bail is usually not expected to return to the family home until bail has been lifted by the police. In some cases, to safeguard children, the Local Authority can advise the parent not to return to the family home until a risk assessment has been completed or until the police investigation has been completed. This is however voluntary and relies on the consent of the parents as the Local Authority cannot insist that the concerned party leaves the house.”

Was there fault by the Council?

The Council did not conduct two separate assessments

38. The Council did not consider whether to complete one or two assessments. There may have been valid reasons for completing a single assessment. But because the Council never considered the issue, there is no evidence to support that. So I uphold this part of the complaint.

The Council shared unnecessary information with Mr M

39. Mr M has parental responsibility for K, so the Council had to keep him informed about information of concern to K.
40. And the need to safeguard children can override data protection concerns. So the Council had a reason to share information with Mr M. It gave him information so he could feed back any concerns he had about K. That was a valid response, and not one the Ombudsman can criticise.
41. I know Mr and Mrs H have concerns about what Mr M did with the information the Council gave it. But that does not change the fact that the Council needed to share information with him. I do not uphold this part of the complaint.

The Council told Mr H he could not return home

42. For the period when Mr H was subject to bail conditions, the police were the organisation saying Mr H could not return to the family home. So I do not find any fault by the Council in this period.
43. The police investigation gave the Council reasons for starting an assessment of whether J and K were at risk of significant harm. But the alleged crime was not necessarily the same thing as concluding J and K were at risk of significant harm – that was what the Council needed to assess. The outcome of that assessment was that it should complete a child in need – not child protection – plan.
44. The child in need plan said the Council’s ‘expectation’ was Mr H should not go home. But it does not make clear that this was not something it could enforce.
45. One of the child in need plan’s actions was for the Council to carry out a risk assessment about Mr H’s contact with the children. The risk assessment noted Mrs H was a protective factor. And that Mr H’s contact with his children should continue to be supervised. But this assessment does not consider the risks of Mr H going home. Instead it takes, as given, that he could not go home. A social worker’s stated reason was it was ‘procedure’.
46. The Council should have a record of its assessment of the risks of Mr H going home. And what it would do if Mr and Mrs H did not agree with the outcomes of that assessment. So I find fault with the Council’s lack of clarity in its assessment.

The written agreement/family agreement

47. The Council was managing its instruction for Mr H to not go home through letters of expectation and then as an addition to the child in need plan.
48. In January 2018 (when there was already a child in need plan, saying the Council’s expectation was Mr H would not go home), the Council prepared a written agreement for Mr and Mrs H to sign. I take this document to be analogous with what its guidance calls a Family Agreement (see paragraph 13).
49. There are several issues with this approach, compared to what its guidance says should happen:
• the agreement has no information about its status. This is despite the fact the Council’s good practice guidance advises agreements should state they are not legally binding. It is especially surprising the agreement did not include this information, as it seems to be based on a template – the information about the voluntary nature should have been part of the template;
• the start of the agreement says it is about Mr H’s contact with J and K. But its body only mentions contact with J, creating confusion;
• the Council’s record does not explain why it needed a separate family agreement. Instructions that Mr H could not go home are in the child in need plan, as its own guidance said should have happened;
• the agreement notes Mr H could not go home until it completed a risk assessment. But it had already done this assessment and I can see no record of a later assessment;
• Mr H has not signed the copy the Council has sent me;
• the Council’s records do not record monthly visits as the agreement stipulated.
50. The Council had no power to enforce a written agreement of this nature. The agreement should have clearly stated this. And the Council should have a record its social worker explained this with Mr and Mrs H. I find that to not make that clear was fault.
51. The Council should have told Mr and Mrs M about the written agreement’s voluntary nature, without them having to ask for it. But the fault is exacerbated by the fact Mr H did ask, repeatedly, for the legal basis of the Council’s instruction to not return home. These requests should have prompted the social workers and their managers to reflectively consider the basis for their requests.

The Council support for Mr H in finding temporary accommodation

52. I have found fault with the Council’s decision making and information about Mr H returning home. But I do not find extra fault that the Council told Mr H to go to its housing department, as if it had acted correctly, that would have been suitable advice.

The Council said Mr H was a danger to children, but invited him to a meeting in a school

53. The Council’s concerns were about Mr H’s unsupervised contact with children. As it is unlikely he would have been unsupervised while at the school, I do not uphold this part of the complaint.

Between June and October 2018 an officer did not respond to emails

54. The social worker in question took over the case in June and closed the case in July. There are records of her contact with Mr and Mrs H in this time. I am unsure of what contact Mr and Mrs H had with her after that. But I do not uphold this part of the complaint.

The panel meeting record

55. I will not investigate this further. The Ombudsman is conducting an independent investigation. That means, whatever happened earlier in the process, there is not enough injustice to warrant the public expense of further investigation of this part of the complaint.

The complaint response

56. The Council’s complaint response told Mr and Mrs H the social worker never asked Mr H to move out. The Council also told the independent officer that it did not ask him to move out. This is technically true – it was the police’s bail conditions that said Mr H could not go home. But the advice is incomplete and does not disclose that, several times, social workers told Mr H he should not move back home. I find that lack of clarity to be fault.

Did the fault cause an injustice?

Not considering whether to complete two assessments

57. How the Council conducted its assessments did not change that Mr M had (joint) parental responsibility for K. So the Council needed to share information with him. As the Council’s task was to protect the children, I cannot say the information Mr and Mrs H are concerned about would not have been shared, but for the fault. So I do not see that this fault caused a significant injustice.

The assessment and advice about Mr H returning home

58. Mr and Mrs H’s view is, as a result of the Council wrongly telling them Mr H could not go home, they lost £12000 in rent. But we cannot now know what would have happened if Mr H had decided to return home earlier. This is because:
• there was a continuing police investigation about a matter relevant to child protection. This did give the Council grounds for its concerns about Mr H being in the home;
• if Mr H had returned home earlier, the Council would still have had a duty to consider how to ensure that the children did not suffer significant harm. That would, more likely than not, have included considering whether Mr H’s returning home created a significant enough risk for it to escalate its actions, perhaps to child protection.
59. In those circumstances, we cannot now reliably say what would have happened, but for the fault. But that uncertainty is itself an injustice. This will have also likely caused both Mr and Mrs H stress, frustration and a concern that they lost opportunities for family contact.
60. The injustice starts at the end of Mr H’s bail period. It ends around nine and a half months later: when a social worker correctly advised Mrs H the Council could not stop Mr H returning home.
61. The injustice is exacerbated by:
• the Council not responding to Mr H’s earlier requests for the Council to explain the legal basis for its instruction;
• the complaint responses giving incomplete advice about instructions for Mr H not to go home.

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Recommended action

62. I recommended that, within a month of my final decision, the Council:
• write to Mr and Mrs H apologising for the faults I have identified:
• as a symbolic recognition of the distress caused by the uncertainty and sense of lost opportunities, pay Mr and Mrs H £950 each.
63. I also made recommendations for the Council to review its family agreement template. In response to my draft decision, it advised, since 2020, it has been using safety plans instead of written agreements. It says the family ‘owns’ the safety plan – they tell the Council what they will do to keep their children safe. So that effectively made the plans voluntary.
64. I accept the Council has changed its practice; so making the need for the review unnecessary.

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Final decision

65. I uphold this complaint. The Council has accepted my recommendations of how it can make a personal remedy to the complainants. So I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman