The Ombudsman's final decision:
Summary: Mr E complains about the actions of a Council and a Trust in relation to child protection concerns and a child protection examination carried out on his son. While there were faults, I do not consider these led to the injustice that Mr E has claimed. In addition, both organisations carried out appropriate work to try and remedy the situation and prevent similar occurrences.
- Mr E complains about a child protection examination report relating to his son, F and carried out by a Consultant Paediatrician (the Consultant) at East Cheshire Healthcare NHS Trust (the Trust). He has said the report was inaccurate and the Consultant did not ask him for his views on the incident before making his report. He also said the Consultant did not follow the proper process by not having a strategy meeting with the Council.
- Mr E said this report had a detrimental effect on custody proceedings involving his son who he was seeking to have live with him. He has not seen his son in three years.
- Mr E would like the report amended to remedy inaccuracies, an apology and service improvements. He also wants compensation for distress and legal fees incurred as a result of the detrimental report.
- He feels the Council have provided an inadequate remedy to his complaint about how it handled the case.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
- The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way that the Council made its decisions.
How I considered this complaint
- While investigating this complaint I have considered evidence from Mr E, the Council and the Trust, including social care and medical records. I have also considered the relevant law and national and local guidance. I asked for comments from all parties on my draft decision. I considered these comments before making this final decision.
What I found
Guidance and legal background
- Anyone who is concerned that a child is suffering or at risk of harm should inform their council. In addition, health bodies should be alert to the possibility that children may be at risk of harm and refer their concerns to the local authority for assessment.
- Under section 47 of the Children Act 1989, councils have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. This may involve an initial assessment and a ‘core’ assessment (a more in-depth assessment).
- Assessments are intended, for example, to analyse a child’s needs and the risk of harm to the child. Councils may also convene a child protection conference. The conference will decide whether any action is necessary to protect the child from harm.
- Section 17 of the Children’s Act defines what a ‘child in need’ is:
“he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;”
“his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services’’
- The Children and Family Court Advisory and Support Service (Cafcass) Child Impact Assessment Framework (CIAF) sets out how children may experience parental separation and how this can be understood and acted on in Cafcass. It is used to look at different case factors such as child refusal or resistance to spending time with one parent. This may be due to a range of justified reasons or could be an indicator of the harm caused when a child has been alienated by one parent against the other for no good reason.
- The Council relied on a research article ‘ Parental alienation or justifiable estrangement? Assessing a child's resistance to a parent in the UK’ (Whitcombe, 2017) which stated parental alienation was on the rise and seen as a form of abuse. It also states rejection of the parent responsible for abuse is justifiable estrangement and a coping strategy of children.
- The Council also used the Cafcass Safe Contact Indicator (2000) which should be used in private law proceedings to indicate whether further contact with a parent is safe.
- The Children Act 1989 Representations Procedure (England) Regulations 2006 (‘Children Act complaints’) set out how relevant complaints should be handled by Councils. The regulations:
- set out the three-stage process: local resolution, investigation and review panel;
- specify the involvement of an independent investigator at the investigation stage with oversight by an independent person;
- establish the principle of the welfare of the child being paramount in any consideration of a complaint;
- In January 2017, F was eight years old and made an allegation to his GP that his father had physically assaulted him when they were on holiday. The Council initiated a s.47 investigation and the Police were informed. As part of its investigation the Council asked a Consultant Paediatrician (the Consultant) to carry out an examination of F. The Consultant concluded F’s injuries were not accidental and were consistent with abuse. The Police concluded it would not take the case further as the alleged offence took place abroad and there was not sufficient evidence to gain a prosecution.
- The Council concluded its s.47 investigation in March 2017 and stated that F was suffering emotional harm due to his parents’ acrimonious relationship. The Council carried out work to re-establish contact between Mr E and his son but F was adamant that he did not want to see his father. It also ordered a psychologist report which stated that there should not be further involvement of professionals as it could cause further emotional harm to F. The Council investigated Mr E’s complaint and completed a Stage 2 investigation in 2018 and admitted there was some fault in its actions. Following a meeting in October 2018 the Council provided a final response in November 2018 outlining the work it had done to remedy its faults. It also reopened F’s social care case to complete a new assessment. Mr E approached the Ombudsmen with his complaint in August 2019.
- Mr E’s criticism was that the Council should have taken account of possible parental alienation sooner. The social worker had concerns with Ms G’s behaviour during the medical examination as she spoke negatively about her ex-husband in front of F. These concerns were not taken further. Mr E also said that the matter should have been raised to a child protection rather than child in need case. Mr E felt if his concerns about parental alienation had been taken seriously at the time then the situation of F not wanting to have contact with him could have been prevented. He was also unhappy with the Council’s work to resolve his complaint as he did not feel it provided him with an adequate remedy following their investigation.
- Regarding the medical examination, Mr E criticised the medical report completed by the Consultant. His main criticisms were that a strategy meeting did not take place and the Consultant did not contact him to get his point of view on the cause of his son’s injuries before completing his report.
- The Ombudsmen’s approach to how child protection complaints are investigated is that as the Council commissions someone to carry out the Stage 2 investigation independently, if we see that the process was robust, their findings should be relied upon. In addition, in this case we are investigating whether the Council provided Mr E with an adequate remedy to his complaint.
- The Council said it was a fault that the social worker’s concerns about Ms G were not taken further and that an initial child protection conference should have taken place earlier. It explained its reasons for not keeping the matter as a child protection case. It said that action taken sooner may have made a difference to the result but that the psychologist report did not recommend further contact and F was adamant he did not want contact with his father. The Council outlined the work it had done to further train staff in line with new Cafcass guidance. However, it did not feel that any faults caused Mr E the injustice he had outlined.
- Mr E is left with uncertainty about whether the Council could have considered parental alienation more during its handling of his case. As the Council has stated, this assessment cannot be done in retrospect. However, the Council apologised and have provided workshops to all staff on the Cafcass guidance which includes parental alienation. In addition, when it reconsidered the case it took into account parental alienation in line with the Cafcass guidance which had come into force in the intervening period. This is appropriate work to address any shortfalls in the Council’s methods of addressing parental alienation. Therefore, I would not recommend any further action in relation to this.
- The Council reopened the case in 2018 to see if more could be done to re-establish some contact between Mr E and his son. Unfortunately, the conclusion then was that no further work could be done due to the risk of causing further emotional harm to F. The Council has improved its service and tried to resolve matters through further work, which is an adequate remedy to Mr E’s complaint.
- However, a fault has emerged in this investigation in that despite Mr E’s request, the Council did not progress the case to Stage 3 of the Children Act complaint procedure. The regulations state that this stage can only be skipped if both parties agree and this was not the case as Mr E was still unhappy. However I do not recommend the Council now carry out a Stage 3 review as the Ombudsmen have investigated the case. We would usually make a recommendation for the Council to remedy this apparent systemic fault in its process when dealing with Children Act complaints. However, due to another complaint we investigated with this Council, it has already given an explanation for the reasons for its systemic failure and has now remedied this fault.
- The Consultant assessed the health and wellbeing of F. He also advised on what interventions were required and arranged medical follow up. Finally, he advised in his opinion whether any medical evidence of abuse was present. This was in line with the Procedures (3.1). A report was provided, and when new information came to light (Mr E’s evidence) the Consultant completed an addendum report. This was also in line with the Procedures (3.4).
- The Consultant report did recommend that the Police get Mr E’s views on the incident before a strategy meeting took place. These views were never relayed back to the Consultant. It was fault in not chasing these views or holding another strategy meeting to obtain this information. However, arranging a strategy meeting was the responsibility of the Council, and it has already accepted there were faults in how it dealt with concerns about F. The Council remedied the matter by seeking the Consultant’s views on Mr E’s explanation of the injuries.
- When Mr E raised concerns about his lack of consultation before the completion of the medical report, the Consultant revisited the report and considered Mr E’s explanation for the bruising. The lack of this information at the time did not affect the outcome of the Consultant’s conclusions as when he had this information he still felt the injuries were non-accidental and abusive in nature.
- Taking this into account the Consultant carried out the examination and report in line with the guidance and he also sought to remedy any misunderstanding by taking on board information provided by Mr E. Therefore, although there was a fault in not obtaining Mr E’s views earlier, it would not have affected the overall outcome. In addition, the report was peer checked and there is insufficient evidence to suspect that the Consultant’s opinion was faulty.
- I do not recommend any further action in this case. While there were faults, I do not consider these led to the injustice that Mr E has claimed. In addition, both organisations carried out appropriate work to try and remedy the situation and prevent similar occurrences.
Investigator's decision on behalf of the Ombudsman