Summary: Mrs B and Mr C complained about the Council’s actions during a child protection investigation. We have found there was fault because the Council did not obtain Mr C’s permission and misled Mrs B when it took the child from her care. This caused significant distress to both Mrs B and Mr C. To remedy this injustice, the Council has agreed to apologise, make a symbolic payment to Mrs B and Mr C and review what happened to ensure a similar situation does not reoccur.

The complaint

1. I have called the complainant ‘Mrs B’. She complains on her own behalf and that of her son, who I will call ‘Mr C’. They complain the Council acted with fault when a social worker went to her home seeking to return Mr C’s son, then aged 2 (whom I have called ‘D’), to his mother. Mrs B says the social worker wrongly claimed she had legal authority to require D’s removal from the home if she did not consent to the handover.
2. Mrs B says because of the Council’s actions, they could not see D for five months. Mr C also spent £15,000 in avoidable legal costs seeking contact through the family court.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

8. Before issuing this draft decision statement I considered:

• Mrs B’s written complaint to the Ombudsman and any supporting information she provided.
• What Mrs B told me over the phone.
• Information provided by the Council in reply to our enquiries.
• Any relevant law or guidance referred to in the text below.

9. Mrs B, Mr C and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law

Child protection investigations

10. The Children Act 1989 (the Act) sets out the circumstances where a council may become involved in family life because of concerns for a child’s welfare. The law places an overarching duty on the council to act in the best interests of the child.
11. The council may receive referrals from third parties expressing concerns about a child’s welfare. These are made under ‘safeguarding’ procedures; a set of policies and procedures used by organisations to report concerns for a child’s welfare and by councils in investigating those concerns.
12. Some referrals engage Section 47 of the Act. This provides for the council to respond to concerns a child may be at risk of ‘significant harm’. In turn, this covers the risk of physical, sexual, emotional abuse or neglect. Under this section of the Act the council can make such enquiries as it considers necessary to safeguard or promote a child’s welfare. The Act says the Council should seek access to any child whose welfare it is making enquiries about.
13. Under Section 44 of the Act the Council can apply to the court for an Emergency Protection Order. This includes circumstances where it cannot gain access to a child or where it believes a child will suffer significant harm if they are not moved to alternative accommodation.

Parental responsibility

14. The Act defines parental responsibility as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property.
15. Parental responsibility means having legal rights and responsibilities in relation to the child. Those with parental responsibility are involved in making important decisions such as where the child should live.
16. Unless there is a court order in place which says otherwise, both parents have the right to provide a child with a home.

Key Facts

17. Mr C and Mrs Y are the parents of D. They are married and share parental responsibility for him. Mrs Y has two older children from a previous relationship.
18. In mid-March 2020, Mrs Y was admitted to hospital following an overdose. The hospital alerted the Council after allegations about Mr C had been made by Mrs Y’s family. The Council decided the children may be at risk of significant harm and so began making enquiries under Section 47 of the Act.
19. At an initial strategy meeting the Council recorded Mr C had taken D from the matrimonial home to stay with Mrs B following Mrs Y going into hospital.
20. The Council drew up a safety plan to safeguard Mrs Y and her children following her discharge from hospital. It envisaged all the children being reunited with their mother.
21. As part of the Section 47 enquiries the Council recorded it would carry out a visit to see D. The case notes record that initially the Council planned on making this visit accompanied by police. They wanted “to encourage” Mr C to allow D to go with them to be reunited with his mother and siblings. Emails exchanged between the Council and police made clear that both parties understood this could only be done with Mr C’s consent as he held parental responsibility for D. There is no suggestion in the case papers that there was any discussion the Council may seek a court order for D’s removal in the event Mr C did not give his consent.
22. Two days after the initial strategy meeting, the Council social worker (Officer J) recorded speaking to Mrs B by telephone. Her first note indicated that Mrs B agreed to Officer J visiting. The note then says Officer J, “later called to advise police will attend to collect [D] and asking for her to agree to hand over to [his sister] with [Officer J] present to avoid police coming. [Mrs B] amenable to this, saying [D] should be with his mother”.
23. Officer J later recorded this visit as follows: “[Officer J] attended alone. Police intending to visit in order to encourage paternal grandmother to hand [D] back to mother. This was done without police presence”.
24. Once D was taken away, Mrs B and Mr C were prevented from having contact with him by Mrs Y and her family. To reinforce this, Mrs Y obtained a non-molestation order against Mr C. Mrs B and Mrs C say this was based on lies.
25. Mr C says he was forced to obtain a court order allowing him to have contact with his son. This took many months and thousands of pounds in legal costs. Both Mr C and Mrs B were separated from D during this time.
26. They say this was completely avoidable had Officer J conducted proper enquiries about what she had been told by Mrs Y and her family. They say the court entirely exonerated Mr C, once all the evidence had been properly considered.

Mrs B’s complaint

27. Mrs B complained to the Council about the way D had been removed for her care, without obtaining either a court order or Mr C’s permission. She also said Officer J’s version of events was inaccurate:

• Mrs B denied saying that D should be with his mother.
• Mrs B says Officer J said she had a court order to remove D.

28. Mrs B and Mr C also complained the Council told Mrs Y to get a non-molestation order without knowing the full facts. They say the Council should not have accepted everything the maternal family said without getting the other side of the story.

The Council’s response to the complaint

29. In response to her complain, the Council explained to Mrs B that at the relevant time, Mr C’s whereabouts were not known. Officer J only knew that Ms Y wanted D back as he was being cared for by someone without parental responsibility.
30. Officer J denied telling Mrs B there was a court order. Mrs Y had contacted the police to request D’s return. Officer J agreed to support this, without police presence to avoid D being scared by the police presence.
31. Officer J did not speak to Mr C because at the time there was an ongoing police investigation.
32. As an allegation of domestic and sexual abuse had been made by Mrs Y about Mr C, the Council considered good practice was followed when potential legal protections were discussed with her. The Council said it was Mrs Y’s decision to make an application for a non-molestation order.

Analysis

33. When considering complaints about child protection matters, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the councils’ officers. Instead, we focus on the process by which the decision was made. A child protection investigation will inevitably be distressing for any parent or grandparent. It is therefore important to try to ensure things are done properly.
34. The main issue for me to consider is whether the Council acted with fault when it facilitated D’s return to his mother.

Failure to contact Mr C

35. It is significant that Mr C had parental responsibility and says he would not have agreed to relinquish custody of his son because Mrs Y was unstable and had just tried to take her own life. He disagreed with the serious allegations that had been made against him by both Mrs Y and her family. He says he was denied a chance to tell his side of the story because Officer J did not attempt to contact him.
36. Despite having parental responsibility, Officer J did not speak to Mr C. This is not in dispute. There is no evidence that she made any attempt to contact him or ascertain his whereabouts. The Council said it facilitated D’s return to Mrs Y due to Mr C “not being present” and because Mrs B said D “should be with his mother”.
37. Mrs B has strongly denied saying this. Officer J’s case notes state she did, and she confirmed this recollection during the Council’s complaints process. The Ombudsman makes decisions on the balance of probabilities. This issue relates to one person’s word against another. There is no independent witness, nor are there any recordings of the telephone call in question. In the absence of any corroborating evidence, I am unable to prefer one account over another, and for this reason I cannot make a finding about what was said here.

38. But I am satisfied Officer J did not make any attempt to contact Mr C. Because he had parental responsibility, she should have done. This was made clear to her in writing by the police.
39. The Council has subsequently given two different reasons why this did not happen, neither of which were recorded at the time.
40. In its first complaint response, the Council said that Officer J, “was not aware of Mr C’s whereabouts at the time”, and that “in the absence of any other parent with parental responsibility, it was right that D was returned to Mrs Y’s care”.
41. But the second strategy meeting minutes stated that, “it was clarified D was living with Mr C”. Whether Mr C was at home or not at the time of Officer J’s visit is, in my view, irrelevant.
42. The Council has said in its second complaint response, “when there is an active police investigation, they are required to allow the police to conduct their own interview first to prevent jeopardising any investigation or evidence”.
43. While this has been given as a retrospective explanation, there is no evidence within the case records to support this was the rationale at the time for not contacting Mr C. The Council was given clear written advice by the police that D could not be removed from Mr C’s care without a court order. Officer J also recorded that “there was no power to remove D from Mrs B”. I have seen no evidence the police instructed the Council it should not speak to Mr C before they had a chance to. Had this been the case, I would expect to have seen some record or it, either in the case notes or the s47 strategy meeting minutes.
44. Because of this, I do not consider the Council’s subsequent explanation justified its failure to obtain Mr C’s permission before removing D from his care while living at Mrs B’s address.
45. Failure to do so, together with the absence of any records explaining why Officer J did not attempt to contact him, was fault.

Removal of D from Mrs B’s home

46. Mrs B says she was effectively coerced into handing over D under the threat of a court order. This is a serious allegation. The Council says Mrs B handed him over willingly, a claim strenuously denied by Mrs B.
47. Officer J was questioned about what happened as part of the Council’s complaint investigation. She said she did not say there was a court order. She said the police had advised her that the police would be returning D to the care of his mother. Officer J agreed to support this return “to prevent the potential for D becoming scared by the police presence".
48. In my view, the relevant case note provides evidence that Officer J did not accurately explain to Mrs B what the Council’s powers were. It refers to Mrs B being “encouraged” and “asked to agree” to return D to Mrs Y. While I accept Mrs B did not have parental responsibility she was caring for D on behalf of Mr C.
49. I am satisfied Officer J knew this to be the case. It is understandable why Mrs B believes Officer J took advantage of Mr C not being present and referenced potential police attendance in order to persuade her to allow Officer J and his sister to take D away.
50. I recognise Officer J acted with good intentions. Serious allegations had been made against Mr C by Mrs Y, his stepson and wider family. But such good intentions should not be used to avoid due process, which is what happened here. On the evidence before me, I am satisfied Officer J misled Mrs B into handing over D and this is fault.

The non-molestation order

51. Mrs B and Mr C also claim the Council went beyond its remit by advising Mrs Y to obtain a non-molestation order against Mr C. I do not find fault with this aspect of the complaint. In the context of the allegations made by Mrs Y and other evidence considered during the s47 investigation, I accept the Council’s position that it had a responsibility to advise her of options available to her. It was ultimately her decision to take the legal action she did and about which she had independence legal advice.

Injustice

52. Both Mr C and Mrs B claim Council’s actions led to them not seeing their son/grandson for several months and having to take the matter to court to secure contact with D, costing many thousands of pounds. It is clear from the records I have seen that both were heavily involved in D’s life previously and for him to be removed in such circumstances caused significant distress to them both. This is a significant injustice that requires a remedy. What was already a difficult situation was made worse by the Council’s actions.
53. The Ombudsman’s Guidance on Remedies says that councils are expected to treat people fairly and with respect and not expose the public to unnecessary distress, harm or risk as a result of their actions. Such injustice cannot generally be remedied by a payment, so we usually seek a symbolic amount to acknowledge the impact of the fault on the complainant. A remedy payment for distress (which covers undue significant stress, inconvenience and frustration) is often a modest sum between £100 and £300. In cases where the distress is severe or prolonged, up to £1000 may be justified.
54. I have taken this Guidance into consideration when determining the remedy below.
55. In respect of Mr C’s legal costs, I cannot say with any certainty that private law proceedings would not have happened in any event. There was clearly a dispute over contact arrangements that Mr C chose to resolve through the private law proceedings. Contact arrangements are a decision for the courts and the Ombudsman cannot investigate matters that were the subject of court proceedings. For this reason, I cannot hold the Council responsible for the resulting legal costs.

Agreed action

56. Within four weeks from the date of my final decision, the Council has agreed to take the following action:
1. Apologise in writing to Mrs B and Mr C.
2. Pay Mrs B and Mr C £500 each to acknowledge the distress caused by the faults identified in this decision statement.
3. Reflect on the issues raised in this decision statement and identify any areas of service improvement, particularly about removal of children without a court order in place. The Council should prepare a short report setting out what the Council intends to do to ensure a similar situation does not reoccur. This report should be sent to the Ombudsman.

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Final decision

57. The Council acted with fault during a child protection investigation. The Council has agreed with the Ombudsman’s findings and recommendations. On this basis I have completed my investigation.

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Parts of the complaint that I did not investigate

58. I have not investigated the part of the complaint relating to the outcome of the private law proceedings and associated costs. Mrs B says the court exonerated Mr C of all serious allegations made by Mrs Y and were supported by Officer J during her involvement in the case. These matters were the subject of court proceedings and so the Ombudsman has no jurisdiction for the reason set out in paragraph 5 above.

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Investigator's decision on behalf of the Ombudsman