15. We have set out the reasons for our decision under headings below, for clarity.
Direct information
16. Mr J complains the FCDO’s consulate in South Africa did not provide enough direct information to him and instead asked him to speak with the consulate in Bangkok, which is where he was. He says having to correspond with FCDO staff in Bangkok was ineffective and delayed progress on his case.
17. The FCDO told Mr J in its letter dated 21 June 2021:
‘it is FCDO policy that your main point of contact is a consular officer based in the country where you are located’
18. It told Mr J this was explained to him in emails on 9 March 2020 and 8 May 2020. The FCDO told us in response to our enquiries the benefits of providing a point of contact in the same country the British national is located is because it is more practical to do so.
19. The FCDO’s ‘Support for British Nationals Abroad – A guide’ says it will make sure people have a single point of contact with a member of its staff. However, it does not stipulate that this will be a person based in the country where the British national is located. The FCDO has not provided any other written policy or guidance that says the point of contact should be in the country where the British national is located. Therefore, it appears appointing a point of contact in the same country is an approach the FCDO uses, rather than an explicit part of its written policy or guidance.
20. While it is not specifically set out in the guidance we have seen, we recognise allocating a point of contact in this way provides obvious benefits such as overcoming practical barriers due to differences in time zones between the countries involved and allowing for in-person visits where necessary.
21. For example, Thailand is five hours ahead of South Africa which means the working hours of FCDO staff based in South Africa will not easily align with the hours Mr J may be available to correspond with them. Our ‘Principles of Good Administration’ say organisations should be customer focused. They say they should provide services that are easily accessible to their customers and should behave helpfully and sensitively.
22. We recognise how distressing this experience is for Mr J. His children were taken by their mother to another country and, understandably, he says he felt, and still feels, helpless. He turned to the FCDO to assist him, with the hope it would mean he could see his children again.
23. To Mr J, it made sense that he should correspond directly with a consular office in South Africa, which is where his children are, rather than Thailand. Instead, he was advised his point of contact would be a member of staff based in Thailand. While this is was frustrating for him, we cannot see indications of failings by the FCDO.
24. The FCDO has acted in line with its own guidance and our Principles. As such, we will take no further action.
Letter of interest
25. Mr J says the FCDO refused to submit a ‘letter of interest’ to the South African court considering the legal case in South Africa. Mr J asked it to do so to expedite the legal process. He says the FCDO’s refusal was against the advice of Reunite and recognised best practice.
26. The FCDO told Mr J in its letter dated 21 June 2021 that registering interest with local authorities can take several forms and that in its experience, working with South African authorities and building a relationship is the most effective way to register an interest. It said one of its officers in South Africa had introduced themselves to the family advocate in writing and had followed up with SACA several times. It said this was in line with its consular assistance policy and that taking a different approach would not have led to a different outcome.
27. We have seen evidence that FCDO staff in South Africa were in regular contact with SACA regarding updates on the progress of the case. Where necessary, these updates are passed to Mr J’s point of contact in Thailand, who informed him of the updates. SACA are responsible for advocating and representing a child’s best interests in court cases. SACA officials are trained legal professionals who are used to handling Hague Convention cases and have access to specific case details.
28. In response to our enquiries the FCDO reiterated there would be no instance where it would write a letter to a court in any country to ‘register interest’ and, ultimately, try and expedite a case. It told us doing so could risk interference with the legal processes of that country, and it is not appropriate for it to do so.
29. The FCDO’s ‘Support for British Nationals Abroad – A guide’ says:
‘Where appropriate, we can ask consular staff overseas to contact the local courts to express an interest in a case and ask about progress. We cannot, however, interfere in foreign court proceedings’.
30. The FCDO considers writing directly to a court to try expediting a case would be interfering in the court proceedings. It told us previous experience has shown contacting and requesting information from SACA is the most effective way to register interest and gain updates and progress on Hague Convention cases. This is because SACA is best placed in its own role within the South African legal system to provide these updates, and influence cases in the best way it can.
31. With this in mind, it appears the FCDO has acted in line with its own guidance. We have not seen any evidence to indicate the FCDO is obliged to provide such a letter. While we recognise Mr J thinks it should do this, the fact is that there is no policy or guidance that says the FCDO should take this action.
32. With regard to Mr J’s assertion Reunite told him the FCDO’s failure to write to the court was against recognised best practice, we also spoke with Reunite.
33. Reunite told us it would not expect the FCDO to write to a court to request the expedition of a case, or to register an interest in it. Reunite told us it is not recognised best practice, nor something it would advise the FCDO to do.
34. Reunite also told us that in instances where it does think the FCDO could do more to progress cases, they may contact the FCDO and encourage it to liaise with different channels or departments in the relevant country. However, it is ultimately for the FCDO to determine the most appropriate course of action.
35. Our ‘Principles of Good Administration’ say organisations should act according to their statutory powers and duties, and should follow their own policy and procedural guidance. They also say should respond flexibly to the circumstances of the case and should take account of all relevant considerations when making decisions, and ensure people are clear about their entitlements.
36. We recognise the difficult situation Mr J was in and how, in his view, the FCDO should have been doing more to ensure the safe return of his children. This is a situation no parent would want to be in. As set out, we consider the FCDO has acted in line with its own guidance, and our principles.
37. With this in mind, we will take no further action.
Court order
38. Mr J complains the FCDO did not intervene when SACA tried to manipulate him into breaking Thai immigration law with an ineffective court order. He says the court order had been drawn up by his ex-wife’s lawyer and agreed by a South African court. He says the court order had, in effect, asked him to obtain a Thai visa illegally for his ex-wife so she could return with the children. Mr J said it was not possible to do this, even if he wanted to.
39. However, he says that when he made the FCDO aware he had been given a court order that was asking him to break Thai law, the FCDO should have intervened and contacted the South African authorities.
40. Firstly, there is no legal right to consular assistance, and it is provided at the discretion of the FCDO.
41. Initially, when the Hague Convention case began, the judge indicated they were inclined to order the return of Mr J’s children to Thailand. They requested Mr J and his ex-wife, along with their respective legal representatives, discuss the return and try to come to an agreement. After some time, no agreement could be reached. As such, the case was put before the judge to determine.
42. We can see a court hearing was held in July 2020. A court order and judgement were eventually passed down by the South African judge, and the details of the court order were shared with Mr J’s, and his ex-wife’s, legal representatives. Details of the court order were provided to the FCDO in October 2020, and we understand Mr J’s ex-wife appealed the South African court’s decision. This then extended the timeline associated with this case because the appeal needed to be heard.
43. The FCDO continued to ask SACA for updates on the progress of matters throughout December 2020 and the first quarter of 2021.
44. The FCDO’s ‘Support for British Nationals Abroad – A Guide’ says it cannot:
• interfere in criminal or civil court proceedings or another country’s processes, including international parental child abduction cases (but it can ask for updates) • give legal advice • get involved in private disputes.
45. Mr J was in a position where he was engaged in the relevant legal process set up to try and have his children returned to him in Thailand. Sadly, this can be a lengthy process, which we recognise added to Mr J’s distress during a very difficult time. He feels strongly that SACA, and South Africa’s legal system, were not acting effectively enough and this culminated in the court order that he says was impossible for him to comply with. He thinks the FCDO should be able to intervene and assist in matters such as this.
46. In this case, the evidence shows the FCDO simply could not do what Mr J expected it to. In acting in line with the ‘Support for British Nationals Abroad – A Guide’, we consider the FCDO has acted in line with our ‘Principles of Good Administration’ because it has followed its own published guidance, made enquiries with SACA, and updated Mr J where necessary.
47. Unfortunately, in this situation, the court order that was created required Mr J to do something he could not. Based on the evidence we have seen, this was not a matter for the FCDO, and it could not become involved with the details of the court order which is a legal matter. We recognise Mr J’s frustration and his point of view. As set out, we have seen no evidence the FCDO could help him further with this issue.
48. As such, we will take no further action on this aspect of Mr J’s complaint.
Welfare concerns and social services
49. Mr J complains the FCDO failed to respond to his requests for urgent assistance in October 2020 when he became aware his children were encouraged to make threats of suicide if they were returned to Thailand.
50. We understand Mr J wrote an email to SACA on 29 October 2020, referencing a media article concerning threats to self-harm by his children. He copied the email to the FCDO. Mr J says the FCDO should have acted on this email, by making enquiries with authorities to reiterate his concerns and bring about action.
51. He also says the FCDO eventually agreed to contact the South African social services (in September 2021), if he provided consent for it to do so but, in August 2022, the Minister responded to an email from Mr J’s MP and said:
‘Regarding Mr J’s welfare concerns for his children, we take welfare concerns very seriously and stand ready to assist. In Mr J’s conversation…it was agreed we would raise concerns with social services, following concerns the children were missing, if Mr J gave written consent and if South African Central Authority (SACA) could not provide a location of the children. However, after engaging with SACA, they provided the address, which was shared with Mr J. If he would like to revisit his welfare concerns, we stand ready to provide further assistance.’
52. In its letter to on 21 June 2021, the FCDO said, amongst other things:
• it had previously raised welfare concerns with SACA on Mr J’s behalf and asked about reporting to social services, but had been advised this was not the correct course of action for SACA to take • it could not report these concerns to social services itself, and SACA was the correct authority to report his concerns to (which he had done) • he should continue to speak with the family advocate at SACA, and it would continue to monitor legal proceedings.
53. In its letter on 4 August 2021, the FCDO said, amongst other things:
• the email about the media article and his concerns his children would self-harm was addressed to SACA, and the FCDO was simply copied in • because SACA replied on the same day and said it would discuss the matter internally and it did not have first-hand knowledge of the allegations in the media article, it thought it was best to allow SACA to handle the matter • it could also see Mr J had been provided with contact details for social services in South Africa, and he could report these concerns himself if he wanted to or, could contact the South African police • it recognised the consular regional operations manager who wrote the FCDO response dated 21 June 2021 had misunderstood SACA’s role within the context of Mr J’s concerns about his children’s welfare • SACA’s advice was not to involve social services because it could have implications on the legal case (that is, delaying any potential court order to return the children), and as such SACA would not raise concerns with social services, but there is nothing stopping a third-party reporting welfare concerns to social services if they felt it was necessary, and the appropriate consent was obtained • it was sorry for the error made in its letter on 21 June 2021 • it would report his concerns to social services if he provided the necessary consent, but it would advise him to seek legal advice about the implications of this.
54. Firstly, we considered whether the FCDO should have done more when it was copied into the email Mr J sent to SACA on 29 October 2020. As outlined above, the FCDO said it did not take action because it felt SACA was best placed to listen to, and consider acting on, his concerns at the time. It also said because the email was not addressed to the FCDO, and SACA responded on the same day and said it would discuss the matter internally, it took no action.
55. We consider this to be reasonable in the circumstances. Our ‘Principles of Good Administration’ say organisations should act according to their statutory powers and, in their decision making, they should take account of all relevant considerations, ignore irrelevant ones, and balance the evidence appropriately. Mr J’s email did not specifically ask the FCDO to take any action at that time. The email was directed to SACA and it responded the same time and appeared to be taking action. Therefore, we do not consider there to be indications of failings by the FCDO with regards to its decision to take no action at that time.
56. That said, we consider the FCDO got things wrong after it received Mr J’s consent in September 2021 to raise his welfare concerns with social services. As set out above, the FCDO told Mr J in August 2021 it would write to social services if he provided his consent.
57. The FCDO’s ‘Our Customer Charter’ says it will deal with enquiries accurately and efficiently and provides a commitment to providing a high level of service. Our ‘Principles of Good Administration’ say organisations should do what they say they are going to do. They should stick to their commitments, or explain why they cannot. They also say they should ensure customers are clear about their entitlements, and what they can and cannot expect.
58. In September 2021, Mr J had a call with the FCDO’s consular staff based in Thailand and South Africa. There is no recording of this call, and there are no contemporaneous notes that set out what was discussed and agreed. Mr J has told us his understanding was that having given his consent for the FCDO to contact social services, this is what it would do. However, the FCDO says the agreement was that it would contact social services if an address for the children could not be provided by SACA. It says because an address was found and provided to Mr J in November 2021, it did not contact social services.
59. We recognise Mr J’s and the FCDO’s recollection of the agreement is different. Therefore, we have considered whether there is other evidence available to support either account. We can see Mr J sent an email to the FCDO on 23 September 2021 in which he said:
‘Per our conversation I provide my consent for the Consulate in Cape Town to engage with the appropriate social service authorities in South Africa with a view to provide protection and support for my three children’.
60. The FCDO responded on the same day and said:
‘That is understood and I will now forward to our colleagues in South Africa’
61. This exchange took place shortly after the conversation between Mr J and the FCDO, and it is clear his understanding was that his written consent meant action would be taken and was not dependant on his children’s address being provided. The FCDO does not have any contemporaneous notes that support its account from around the time the call took place, and it has confirmed it can only rely on staff recollections.
62. With this in mind, the evidence indicates that, on the balance of probabilities, Mr J was given information during the call, which was either inaccurate or unclear, leading to his understanding that the FCDO would contact social services. Further, we consider the FCDO had an opportunity to ensure Mr J was clear of the conditions, if its own view was that the agreement was conditional, when it responded to his email on 23 September 2021. However, it did not do so.
63. As such, we consider this to be an indication of a failing by the FCDO.
64. We consider this caused frustration and distress for Mr J in August 2022 when he learnt via the Minister’s response to his MP that the FCDO did not contact social services in 2021 because the children’s address had been provided to him. Mr J also says a referral to social services would have meant his children’s safety was prioritised, and it may have expedited the process of returning the children.
65. However, we have not seen any evidence there is a larger or wider impact as a result, such as an increased chance of Mr J’s children being returned to Thailand. This is because, as outlined earlier, a social service investigation may have had negative implications on the legal proceedings (including a delay in the implementation of a court order ordering the return of the children), so we cannot say a referral would have brought about a return.
66. Our ‘UK Central Government Complaint Standards’ say organisations should identify suitable and appropriate ways to put things right for service users who raise a complaint. They also say they should explain why things when wrong and should give meaningful and sincere apologies and explanations that openly reflect the impact of their mistakes.
67. Where poor service has led to injustice or hardship, we consider organisations should offer a remedy that returns the affected person to the position they would otherwise have been. Where this is not possible, organisations should take action in recognition of the impact of its mistakes. This action can take many forms, such as an apology, financial remedy, systemic improvements, or a combination of these.
68. Our ‘Severity of Injustice Scale’ says we consider an apology to be enough to put things right where a one-off instance of service failure has caused an emotional impact such as annoyance, frustration, worry, or inconvenience that is of a short duration with no other adverse effects or ongoing wider impact. In these instances, we consider the impact of an organisation’s mistakes to be something you would expect a health adult to be able to deal with on a regular basis, without external support.
69. In the course of our enquiries, the FCDO recognised its handling in for this issue fell below the standard expected. We asked the FCDO to take action to put things right, and it has agreed to do so.
70. The FCDO has agreed to write to Mr J by 15 November 2024 to acknowledge it was not as clear as it should have been regarding what conditions needed to be met for it to contact social services, and apologise for the frustration and distress this caused when Mr J learnt in August 2022 no contact had been made. We consider this is enough to put things right for Mr J because this is in line with our ‘UK Central Government Complaint Standards’ and ‘Severity of Injustice Scale’.
71. As such, we have decided to take no further action with regards to this aspect of the complaint.
SACA
72. Mr J complains the FCDO failed to report SACA’s misconduct and poor handling to the South African government and relevant Hague Convention authorities.
73. We explained earlier SACA are responsible for advocating and representing a child’s best interests in court cases and is made up of trained legal professionals who are used to handling Hague Convention cases. As such, by their very nature, they are a legal organisation operating in South Africa.
74. We have seen evidence the FCDO is not able to make a judgement on SACA’s conduct or report it to any authority. The FCDO’s ‘Support for British Nationals Abroad – A guide’ is clear that it cannot interfere in another country’s investigation or judicial processes. It cannot force or influence foreign governments, police, courts, or other similar entities to provide information or take action. As such, we consider the FCDO acted in line with its own guidance and therefore, our Principles, in not reporting SACA to any authority.
75. As such, we will take no further action on this aspect of Mr J’s complaint.
Victim of abuse
76. Mr J complains the FCDO failed to provide him with assistance, as a victim of abuse, which was not in line with its own guidance. He says the FCDO’s ‘Support for British Nationals Abroad – A Guide’ says it will help those who are subject to abuse and torture. In his case, he says this is what he is being subject to and therefore, the FCDO should have done more to assist him.
77. In its letter dated 4 August 2021, the FCDO told Mr J the torture and mistreatment section of its guidance was in relation to those British nationals who were subject to torture and mistreatment by the authorities of another country, for example, those who have been arrested, detained, or hospitalised. It said in Mr J’s case, because his sense of torture and mistreatment had arisen from what is essentially a dispute in a personal matter, which was being addressed by the relevant legal process, it would be for the local authorities in South Africa to investigate and advise on.
78. However, the FCDO said it would try to make this clearer in its guidance moving forwards.
79. During our enquiries, the FCDO has told us torture and mistreatment would rarely, if ever, take place outside of a situation in which a person has been arrested or detained in another country. It also told us it is commonly committed by State agents (such as police officers, prison officers, military personnel etc). They told us non-State agents may also commit such acts when they are carried out on the instructions of, or with the approval or acceptance of, a public official or a person acting in an official capacity. It told us its guidance is aligned to the internationally recognised definition of torture.
80. The UN’s ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ defines torture as:
‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions’
81. We recognise Mr J’s view is that the South African authorities, and the process itself, is torturous and he believes the delays in proceedings, and the fact his children have not returned, constitutes abuse. He has not seen his children for years and this understandably causes him pain and suffering and will continue to do so.
82. In our understanding of the evidence available, the FCDO’s guidance on how it can help victims of torture mistreatment is within the contexts of arrest or detention and therefore when it is being committed by a State, rather than a situation in which a person (in this case Mr J) is going through a very difficult and emotional situation.
83. Our ‘Principles of Good Administration’ say organisations should take account of relevant considerations, ignore irrelevant ones, and balance evidence appropriately. With regard to this aspect of Mr J’s complaint, we consider the FCDO has acted in line with our principles.
84. As such, we will take no further action.
Lack of involvement of the relevant authorities
85. Mr J complains the FCDO refused to involve the relevant authorities and instead asked him to contact South African police if he thought there were threats to his children’s safety. He says the South African police are unlikely to take an individual phoning from another country seriously and thinks the FCDO should do this because it will be more likely to be taken seriously.
86. In its letter to Mr J on 4 August 2021, the FCDO said he should contact South African police if he has concerns there was a serious threat to the life of one of his children. We recognise why Mr J feels this is not helpful. However, the children’s location was known and there is no evidence there was an immediate risk to life. The FCDO has told us it is only in instances where there is an immediate risk to life that it would contact police on somebody else’s behalf. This was not the case here.
87. The FCDO’s ‘Support for British Nationals Abroad – A Guide’ contains several references to the involvement of police, across many different contexts and situations. While there is nothing specific relating to the involvement of police within the context of parental child abduction, it is clear the FCDO does not contact overseas police (unless a British National is detained by them) or interfere with any legal or criminal proceedings. It will also not lobby governments, or contact other ‘relevant authorities’ and interfere with legal proceedings.
88. This is because, as set out earlier, it is simply not within the FCDO’s remit to do so. There is also no obligation for any overseas authority or organisation to engage with the FCDO, provide information, or act on its instruction.
89. We understand why Mr J believes a report from the FCDO would hold more weight and would be taken more seriously. Having thought about what we have seen, we consider the evidence we have seen tells us this is not the case. There is nothing to suggest a report from the FCDO to the South African police would be taken any more seriously than a report by Mr J, and it is simply not in line with the FCDO’s guidance to make such reports (aside from the specific situation in which there is an immediate risk to life).
90. As we have set out in earlier sections of this statement, the FCDO assisted Mr J where it could by progress chasing with SACA and passing information to him.
91. Our ‘Principles of Good Administration’ say organisations should follow their own guidance, and they should take account of relevant considerations in their decision making. Based on the evidence we have seen, the FCDO has acted in line with its own guidance and our Principles.
92. With this in mind, we have decided to take no further action.
93. We recognise our decision will likely be disappointing for Mr J and is unlikely to provide him comfort as this very difficult situation continues. That said, we hope the reasons for our decision are clear, and we thank him for bringing his concerns to us.