Summary: Mrs X complained about failings in the Council’s child protection investigation concerning two children she and her husband were fostering. We found the Council at fault for not including all relevant professionals in its investigation, and for not having a safety plan for both children. This caused Mrs X and her husband frustration and uncertainty about whether the Council’s findings are reliable.

The complaint

1. Mrs X complained about failings in the Council’s child protection investigation concerning two children she and her husband were fostering.
2. Mrs X said the Council’s investigation was one sided and incomplete, only focusing on the views of the older child, their school, and health worker. She said it failed to properly include the younger child, their nursery, or their health worker. Mrs X also said the Council failed to invite her social worker to a strategy meeting.
3. Mrs X said the Council concluded an allegation of physical abuse was unfounded, but it found the children were at risk of emotional harm when this was not alleged or raised before. Despite the Council’s finding, it left the children in Mrs X’s care for a further seven weeks after the investigation. She said it failed to visit the older child in school to check on their wellbeing during this time.
4. Mrs X also complained the Council prematurely told the Disclosure and Barring Service (DBS) about the investigation while her fostering agency were still carrying out their own investigation. Mrs X had to contact the police to get the information removed from her DBS record.
5. Mrs X said the Council’s actions caused her and her husband stress and anxiety, and they lost fostering income while their fostering agency investigated the Council’s findings. She said the fostering agency cleared Mrs X and her husband to continue fostering, but they decided they could not work with the Council anymore.

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The Ombudsman’s role and powers

6. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

10. As part of the investigation, I considered the complaint and the information Mrs X provided.
11. I made written enquiries of the Council and considered its response along with relevant law and guidance.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Foster care

13. Councils have statutory duties to children in care to promote and safeguard their welfare. The ‘Care, Planning and Case Review (England) Regulations 2010’ and guidance sets out how councils should manage and arrange placements.
14. When children are in foster care, the foster carers will have their own fostering social worker, who is responsible for supporting and assessing their care. The children will have their own social worker. Both social workers should work closely together.
15. The National Fostering Minimum Standards says investigations into allegations against carers should be carried out quickly and should provide protection to the child but also support to the person subject to the investigation. Foster carers should be told in writing about any allegations against them and given information about the timescale for completing the investigation. They should also be told about the payment of allowance and any fee while investigations are continuing.
16. A council shall not allow the placement of a child with a particular person to continue if it appears to them that the placement is no longer the most suitable way of performing their duty. Where it appears to an authority that to continue a placement would be harmful to the welfare of the child concerned, the council shall remove the child forthwith.
17. The Local Authority Designated Officer (LADO) is a person responsible for managing and overseeing investigations into allegations that somebody who works with children has behaved in a way that may pose a risk to children.
18. The fostering minimum standards say “Allegations against people that work with children or members of the fostering household are reported by the fostering service to the LADO. This includes allegations that on the face of it may appear relatively insignificant or that have also been reported directly to the police or Children and Family Services.”
19. It will be a matter of professional judgement for the social worker, based on their knowledge of the child and carer, that the child’s welfare is not being adequately safeguarded. Children cannot always describe unhappiness so understanding what the child’s daily life in the placement is like; routine, mealtimes and whether the foster child is treated the same way as the birth children, is key to understanding what may be having a negative impact on the child.

Child protection

20. 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. (Children Act 1989, section 47)
21. Harm means ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another. (The Children Act 1989, section 31(9))  
22. Significant harm covers the risk of physical, sexual, and emotional abuse or neglect. (Children Act 1989, section 47)
23. When a council has concerns about a child, the law requires it to take action to find out more. It 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’.
24. The council should make initial enquiries of agencies involved with the child and family, for example, health visitor, GP, schools, and nurseries. The information gathering at this stage enables the council to assess the nature and level of any harm the child may be facing.

What happened

25. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
26. Mrs X and her husband, Mr X, fostered two children before this complaint. I will refer to the older child as Y and the younger child as Z. Y and Z had an older sibling who no longer lived with them. I will refer to them as S.
27. During a weekly visit with their social worker (the social worker) on 28 February 2023, Y expressed suspicions Mrs X was hitting Z. Y also said Mr X shouted at Z. Y asked the social worker not to tell Mr and Mrs X, as they felt scared and did not want to get into trouble.
28. The social worker visited Z at nursery on 1 March. Z shared that Mrs X shouts and sends them to their room when they are naughty. The social worker noted this was part of what Y said. Z also shared that they loved Mr and Mrs X.
29. The social worker then raised Y’s allegation as a child protection concern, and the Council held a strategy discussion on 2 March. It decided to start section 47 enquiries and continue with weekly social worker visits. It also asked Y’s school to monitor them.
30. The Council told Mr and Mrs X about the allegation on 6 March. It told them not to speak to the children about it.
31. At a social worker contact visit with Y and S on 7 March, Y asked to go into respite care as they did not want to stay with Mr and Mrs X. They said this was after Mrs X questioned them about what they told the social worker to make the Council start section 47 enquiries. The social worker was concerned about the negative impact this had on Y, and they were concerned in general that the children were fearful of speaking about their experiences.
32. At the same meeting, S told the social worker they once saw Mrs X push Z on the back of the head, and she constantly shouts at him.
33. Mrs X denied questioning Y about the allegation. She said Y raised the subject and she was not aware of the allegation at that stage.
34. A supervising social worker visited the children at Mr and Mrs X’s home, unannounced, on 9 March. There were no concerns from the visit and the supervising social worker observed both children share positive interaction with Mr and Mrs X.
35. The Council ended its section 47 enquiries on 27 March 2023. It substantiated the concerns, also referring to a previous similar allegation that Z was exposed to some level of physical abuse. It decided the children were at continuing risk of significant harm. The main concern was Y’s emotional wellbeing. The Council also said, although Z presented as happy, they might be subjected to physical abuse at home and their age meant they cannot express their treatment.
36. The Council was concerned about Mr and Mrs X’s ability to meet the needs of the children long term. It also had concerns about how they interact and communicate with the children.
37. Going forward, the Council decided to continue with Y’s existing weekly social worker visits. Y also had support from the school inclusion team.
38. The social worker visited both children at Mr and Mrs X’s home on 31 March. Mrs X asked the social worker about the plan for the children, and about the outcome of the section 47 enquiries. The social worker said the plan for the children remained the same. They also said the section 47 enquiry was complete, but there were concerns about the placement based on the information shared. They said the supervising social worker would visit Mr and Mrs X to discuss things.
39. The supervising social worker visited Mr and Mrs X on 3 April. They discussed concerns such as Mrs X not communicating consistently with Y, who reported arguments at home, said they were shouted at, and did not feel safe. They also discussed a lack of emotional warmth from Mr and Mrs X.
40. Following the meeting, Mr and Mrs X said they felt unable to continue working for the Council as they were constantly criticised. They gave notice on the placement on 17 April. They said the allegation impacted them physically and emotionally, affecting the care they felt they could offer the children.
41. Y and Z moved to a new placement on 15 May 2023.
42. Mrs X complained to the Council. There were multiple points of complaint, but in summary it was about shortcomings in the section 47 investigation, and about unprofessional behaviour from officers in the fostering service. She did not believe the Council’s decision was safe or accurate.
43. The Council’s final complaint response acknowledged it did not give Mrs X’s social worker enough notice to attend the strategy meeting. It also agreed it did not capture the views of Z’s nursery or health worker. However, it said the strategy discussion was multi-agency, and all agreed the case should progress to a section 47 investigation. Input from the nursery and health worker would not have changed this and could not have dismissed or disproved the allegation.
44. The Council also acknowledged it only visited Z once in nursery during the investigation. The social worker said Y seemed more distressed and that is why they visited them more.
45. The Council said the decision to substantiate the allegation was made in a multi-agency forum. The LADO and section 47 processes are separate. The LADO has oversight and Mrs X would need to contact Birmingham City Council about this. The LADO meeting held by Birmingham City Council substantiated emotional abuse.
46. The Council said the findings of the section 47 enquiry did not recommend removing the children from Mr and Mrs X’s care. However, the Council did have concerns about their ability to meet the children's needs, which it continued to consider. The Council was discussing a new placement for the children between April and May. It did not tell Mr and Mrs X as it wanted to confirm the placement first. It considered moving the children to a temporary placement would be more harmful.
47. The Council said there was a safety plan in place for Y after the section 47 investigation of weekly visits. It said it would expect the same plan to apply to Z. However, it said it still saw Z throughout the process.
48. Mr and Mrs X’s fostering agency placed them on hold while it carried out its own investigation, which it completed in October 2023. It confirmed they remain suitable foster carers and meet the national minimum standards.

My investigation

49. Mrs X feels the Council formed a one-sided view of her and her husband, as it only focused on Y and did not get reports into Z. It also did not invite her social worker to a strategy meeting for the section 47 enquiry.
50. Mrs X said Y’s school told the Council about irrelevant things, such as a joke she made about her husband, and accused her of questioning the children intently, when she was just asking normal questions when picking the children up. She also said the Council failed to acknowledge her hearing impairment when it accused her of shouting.
51. Mrs X was unhappy that, once the Council did not substantiate the allegation of physical abuse, it investigated emotional harm instead, when this was never raised before and was not an allegation.
52. Mrs X questioned why the Council did not remove the children straight away if it thought she was causing emotional harm. She also questioned why social workers stopped visiting Y in school after it found they were at risk of emotional harm.
53. Mrs X was unhappy the Council contacted the DBS while her fostering agency were still investigating. Mrs X had to contact the police and tell her employer about the allegation. When her fostering agency concluded its investigation she sent the report to the police, and incident was revoked from her DBS record. However, the DBS said it had to monitor Mrs X for 5 years.
54. Mrs X said her fostering agency’s investigation confirmed they had a fantastic and loving relationship with Z, and no concerns about Mr and Mrs X continuing to foster. She also said the Council acknowledged Z was loved and well looked after.
55. The Council confirmed it is correct Z’s health worker was not invited to the strategy meeting and therefore did not attend. It said best practice would be to invite them, but there is no record from the strategy meeting to explain this omission. The Council said it would expect the chair of the meeting to address this, with an action plan ensuring this key professional is contacted for the follow-on assessment. However, this did not happen.
56. The Council also confirmed Z’s nursery should have been invited to the strategy meeting, but were not. Their views are also not included in the section 47 report or assessment written by social workers afterwards.
57. The Council said it considers the social worker in this case did not receive enough guidance from management about including the views of key professionals like nursery workers and health visitors. It said this is a key part of the management role, but did not happen in this instance.
58. The Council said the views of key agencies like health and education are vital in informing the recommendations of any assessment. It recognised this brings into question the quality of the assessment and investigation. It also recognised it is vulnerable to criticism because of these omissions. It said it upholds Mrs X's concerns about the robustness of the investigation and acknowledged this caused them stress and anxiety. However, it said it had a duty to investigate, and the decision to undertake a section 47 investigation was not identified as a weakness in the decision-making process. The shortcomings are with the omission of multi-agency views.
59. The Council said while issues about emotional harm were not raised previously, the children expressed concerns about their experiences within the placement during the investigation.
60. The Council said the allocated social worker saw Y four times during and after the section 47 investigation. It therefore does not accept it did not check on Y’s welfare. Mr and Mrs X gave notice on the placement in the middle of April 2023. The social worker saw both children on 2 May and again on 15 May when they moved to a new placement.
61. The Council said it has no record of advising the DBS about the investigation. It said this would be the responsibility of the investigating fostering agency.
62. The Council told me its head of service for quality assurance has reminded managers in Children’s Services about the importance of including key agencies in meetings. Key learning from this has been shared with managers at meetings. The team manager of the Child Looked After Team has ensured managers and social workers have contact information for health professionals in the Multi-Agency Safeguarding Hub (MASH) and reminded staff the quality of strategy meetings depends on the inclusion of key professionals. The Council consulted the allocated social worker as part of the complaint investigation and is reassured they are fully aware of the requirement to ensure the views of key multi-agency professionals are present in assessments.

Analysis

63. Despite Y raising concerns Mrs X was hitting Z, potentially causing physical harm, the Council did not involve Z’s nursery or health worker in its investigation. It accepts it should have done. While I appreciate the social worker visited and spoke with Z during the investigation, those professionals could have had important input, or information the social worker was not aware of. Not only was it procedural fault, but it was also very poor practice not to include Z’s nursery and health worker.
64. The Council accepts these failings question the quality of its investigation. Unfortunately, I do not have enough evidence to know exactly what information the nursery and health worker would have contributed. And, even on the balance of probabilities, I cannot say how their input may have influenced the Council’s investigation or findings. There were several other professionals involved in the investigation and decision-making. And there are too many variables for me to say what the final decision may have been if the Council had consulted all relevant professionals.
65. While I cannot say the outcome would be different, I do find the reliability of the Council’s findings has been undermined to a degree, as they were not based on all available evidence. I can therefore appreciate Mrs X’s uncertainty and doubt. However, it is not my role to say whether safeguarding allegations should be substantiated, I can only comment on the process.
66. Mrs X is unhappy the Council made a finding about emotional harm when only physical harm was alleged. I found the section 47 report does not break down the findings into physical and emotional harm. It states the allegation of physical harm, and includes emotional harm as well as this was picked up by the social worker during visits with Y. Emotional harm was not part of Y’s allegation, but we would expect social workers to consider the full background and, if they were concerned about emotional harm, we would expect them to raise this. It was logical for the social worker to consider whether emotional harm may also exist when investigating an allegation of physical harm. We would not expect the Council to limit its investigation to only include the strict details of the allegation where it had wider concerns. The Council was therefore not at fault in this regard.
67. Following its investigation, the Council recognised Z should have had the same safety plan as Y. Given the Council was concerned Z may be suffering harm but cannot express themself, I consider this is another significant oversight which amounts to fault.
68. I appreciate Mrs X’s concerns about the Council not removing the children straight away if it considered they were at risk of emotional harm. However, on the evidence seen, Y continued to have support in school and the social worker saw both children at Mr and Mrs X’s home after the Council’s investigation ended. Meanwhile, the Council was searching for a suitable settled placement rather than moving the children temporarily only to move them again.
69. Mr and Mrs X continued to foster the children until they moved to a new placement. It was then the decision of the fostering agency to place them on hold while carrying out their own investigation. The Council had no role in that decision. And the fact the fostering agency later cleared Mr and Mrs X to resume fostering does not in itself mean the Council’s decision to substantiate the allegation was wrong.
70. Mrs X has not provided me with any documentary evidence showing the Council made a referral to the DBS. The Council told me it is the fostering agency’s role to do this. In the absence of further evidence, I cannot make a finding on this. However, I understand the DBS removed the details, so I do not consider there is any significant remaining injustice.
71. The Council has demonstrated it has already taken steps to address the procedural failings this complaint has identified. I therefore do not consider it necessary to recommend any further service improvements.

Injustice

72. Mr and Mrs X suffered stress and anxiety from the investigation and findings. Safeguarding investigations are, by their nature, distressing, but there was no fault in the Council’s decision to start an investigation. I also did not find the Council at fault for considering whether the children suffered emotional harm.
73. However, the Council was at fault for not including all relevant professionals in the investigation. I found this caused avoidable frustration and uncertainty for Mr and Mrs X about whether the Council’s investigation was complete, and whether its findings are reliable. This is their injustice.

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Agreed action

74. Within four weeks of my final decision, the Council will:
• Apologise to Mr and Mrs X and pay them £200 (£100 each) for the avoidable frustration and uncertainty caused by its failure to include all relevant professionals in its child protection investigation.
• Attach a copy of the Ombudsman’s final decision statement to the case file, along with a note highlighting the deficiencies in the Council’s child protection investigation, and confirming the Ombudsman’s final decision should be read in conjunction with the Council’s investigation.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. I completed my investigation. I found the Council was at fault for not including all relevant professionals in its child protection investigation, and for not having a safety plan for both children. This caused Mr and Mrs X frustration and uncertainty about whether the Council’s findings are reliable.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman