Mrs Christine Oakes (Appellant)
Office for Standards and Education (Respondent)
Application No:  0226.EY
Mr S A Hunter (Chairman)
Mr J Black
Mr J Churchill
On 16th and 17th March 2004.
The Appellant appeals under Part XA of the Children Act 1989 as inserted by Section 79M of the Care Standard Act 2000 against the decision by the Office for Standards in Education ("OFSTED") to cancel her registration as a childminder.
(a) The Tribunal made an Order pursuant to Regulation 18 (1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting the publication (including by electronic means) in a written publication available to the public, or inclusion in any programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child in these proceedings.
The Appellant was represented by Mr Y Rahman of Counsel, instructed by Davis Wallis Foyst, and the Respondent was represented by Mr J Jackson of Walker Morris, solicitors.
After the visit was concluded, Ms West and Ms Pope then reported back to their team manager, Julie Elliott. Ms Pope's notes of the first meeting were recorded on the Respondent's computer system. The two inspectors were asked to make another visit to discuss matters further. Ms Elliott prepared a series of questions for the inspectors to put to the Appellant. Ms West contacted the Appellant on 30th May 2003 to arrange an appointment for a second visit on 2nd June 2003. In her witness statement Ms West said that during that telephone conversation the Appellant was informed that she would have to make alternative arrangements for one of the babies.
On the second visit Ms West stated that she asked the Appellant whether or not she had a copy of the National Standards, that the Appellant had replied that she did, but was then unable to locate them. A discussion then followed regarding the Appellant leaving children in her car at the mother and toddler group on Mondays and Tuesdays. The Appellant was said to have accepted that she had left the children in the car whilst they were sleeping, but that she was in and out of the hall to check on them, and that other parents at the hall also checked on them, and informed her if they were awake. Ms West confirmed that by the time of her second visit the Appellant had accepted the seriousness of leaving children in the car and that this had now stopped.
Ms West said that after the conclusion of the second visit the official interview notes were completed and the matter reported back to Ms Elliott. It was not the role of Ms West or Ms Pope to make recommendations as to what action the Respondent should take, it was their job simply to carry out the investigation.
"I will endorse the child care inspectors recommendation that Mrs Oaks is sent a notice to cancel her registration. Mr Currie did not have any direct contact with either Ms West or Ms Pope. After some discussion with his divisional manager, Mr Currie then reached the decision that the Appellant's registration should be cancelled. He told the Tribunal that this was not a step that he had taken lightly, this was a case, in his view where children had been placed a risk, particularly by leaving the babies unattended in an unlocked car. Although perhaps not of the same magnitude, Mr Currie said that he would not disregard the breach of hygiene admitted by the Appellant, but saw it as being one of the factors that needed to be taken into consideration. In terms of breaching the terms of her registration, Mr Currie accepted that it was likely that in the case of the twins under 12 months of age, that permission would have been given by the Respondents but no application for a variation had been made by the applicant. Mr Currie was not satisfied that the applicant had a full understanding of the need to follow the National Standards or a full understanding of the potential risk to children, particularly leaving them in an unattended car. He indicated in his witness statement, that not only had the Appellant in his view, breached specific conditions of her registration on two occasions, but she had attempted to mislead the Respondent's inspectors. He expressed surprise at the hearing, to be told that in evidence, neither Ms West or Ms Pope were asserting that they had been deliberately mislead by the Appellant.
In or about April 2003 the Appellant began caring for two unrelated children under 12 months of age namely child "A", born In December 2002 and CHILD "B", also born in December 2002. The Tribunal heard from the mother's of both children, Ms G C and Ms S L, they are both teachers at the same secondary school. The Appellant was known to Mrs C, as the Appellant had looked after her older daughter, child "C". Ms L gave evidence to the effect that the Appellant, having become aware of Ms L's pregnancy through Ms C had suggested that she could look after child "B" as well as looking after child "A". A meeting had then taken place between herself, Mrs C and the Appellant. During the course of that meeting, Ms L alleged that the Appellant had said words to the effect "technically I should not be looking after two babies", the Appellant had then produced her registration certificate, her home and car insurance. During the same interview, Ms L told the Tribunal that the Appellant had said that if inspectors from the Respondents visited then Ms L would have to remove child "B" for the day. Ms L said that she knew that this was a bit "dodgy" but felt that she had no choice but to go along with this, because otherwise she would be left without any childcare cover. Ms L had the feeling that if there was a problem then child "B" would be the baby which would have to move rather than child "A", although she did not recall this being said specifically.
Ms C told the Tribunal that it was her suggestion that the Appellant should look after both child "B" and child "A". The Appellant had not been enthusiastic, but was aware that Ms L had difficulties in finding support for her baby from within her own family. The Appellant had said at the meeting with Mrs C and Ms L, that she would give it a try, but if it did not work priority would be given to child "A". Mrs C also confirmed that the Appellant had said that if the Respondent carried out an inspection visit, one baby would have to be taken away.
Ms L in her witness statement and in her oral evidence indicated that there had been other breaches of good hygiene practices by the Appellant. She gave as an example bottles of milk not being placed in the fridge, but left on the floor in the dining room. Ms L said that she had not raised these issues with the Appellant at the time, as she felt that that Appellant would challenge what she said. Ms L accepted that the children being looked after by the Appellant seemed healthy, Ms L had at one time requested that child "B" be given an extra bottle during the day and this had been carried out by the Appellant. Mrs C in her evidence said that she had no concerns regarding the Appellant's hygiene. The inspectors (apart from the incident regarding the spoon) also confirmed that they had no additional concerns. The inspectors notes made at the time of the transitional visit regarding the physical environment had stated "a high standard of hygiene is evident throughout the home". The Appellant herself denied Ms L's assertion about bottles being left out of the fridge.
The Appellant admitted that she had taken babies in her car to the mother and toddler group at the church hall on Monday and Tuesday mornings. If the children were asleep when she arrived she liked to keep them happy and did not wish to disturb their sleep pattern. She accepted, when asked at the Tribunal hearing, that there was no reason why the children could not have been taken out of the car into the church hall. The Appellant said that the children could be left for up to 1 hour, although it might only be for a few minutes. During this time the Appellant was opening the church hall and putting out the play equipment, as well as engaging with others in the group. However, she continued to check the car on a regular basis, if she could not go out for any reason then there were other parents who were coming in and out who would check. The Appellant told the Tribunal that there were two doors to the church hall, an external door and an interior clear glass door. In the summer the outside doors was always left open, but there might be occasions in the winter when the door was closed and the babies would then not be in sight and sound of the Appellant. It was also accepted by the Appellant, that it had not only been child "B" and child "A" who had been left in the car outside the church hall asleep, but also at an earlier stage the twins. The Appellant again confirmed that she was always going out to check on the twins.
Both Mrs C an Ms L said that they were aware of the Appellant's practice of leaving their children outside the church hall in her car whilst they were asleep. Mrs C in her witness statement said that this was not a practice that she adopted herself, nor one that she would confess to being 100% comfortable with, but she had not objected to the Appellant. At no time had Mrs C felt that her daughter was in any danger. She was aware that the Appellant had now stopped the practice of leaving the children asleep in the car outside the church hall. She was unable to say how many times her daughter might have been left in the car in those circumstances.
The Appellant told the Tribunal that once every 6 weeks she cleaned the church again if the babies were asleep, they would be left in the car. Ms L accepted that she had been told her son had been left in the car outside the church, and that she had not expressed any concern to the Appellant about this at the time. The Appellant accepted that on these occasions she could not herself necessarily see the children, but her mother who was cleaning with her, would have been able to see them.
Child "B's" father, Mr W did not give oral evidence to the Tribunal hearing, but a witness statement was submitted from him, in which he stated that on 23rd May 2003, he had arrived early in the afternoon at the Appellant's house to collect child "B" and found both his son and child "A" asleep in the Appellant's car outside in the street. He did not believe that the car was being closely surveyed by the Appellant. The Appellant gave evidence that she had only just arrived back home from the shops, and had gone into the house with some of the shopping. The Tribunal were told that the Appellant had stopped the practice of leaving the babies asleep in the car when the car was unattended, after the Respondents' inspectors had raised this issue with her. Moreover she had enrolled on a course in health and safety.
Firstly an unattended car could be stolen with the children inside, or could be broken into and the children removed. Secondly the vehicle could be involved in an accident, and thirdly the interior of a stationery car could become excessively hot.
It was important in Dr Ward's view for a carer to return to a car within a few minutes.
It was important for babies in terms of the attachment to their carers for those carers to reach to them quickly otherwise there was a danger of the child becoming stressed. This was a particular concern for babies and infants. There were different risks for older children.
The breach of health and hygiene is also admitted, in that the Appellant agreed that she possibly had licked a spoon before feeding a baby. As regards Ms L's assertion regarding bottles being left out of the fridge, this was not mentioned by Ms L to the Appellant at the time, the allegation was not supported by Mrs C and we are therefore not convinced that this was the case. In relation to the babies being left unattended in the car, again the breaches were accepted by the Appellant namely that the babies were left in the car outside the church hall for up to an hour, outside the church and outside the Appellant's home. We consider this to have been a regular practice which had been carried on for some time. On the Appellant's own admission there were occasions when the children would have been out of her sight and sound.
Firstly it appears to us that the inspectors, Ms West and Ms Pope, lacked sufficient experience and/or training in the obtaining and assessment of evidence. They also appeared unclear as to their role, for example in whether they were able to advice the Appellant that certain practices were in breach of the National Standards and that they should cease immediately. There was also confusion about their role in making recommendations as to future action that the Respondents might take in relation to the Appellant's breaches. In evidence to the Tribunal the inspectors indicated that they had no part to play in making such recommendations and that these were taken at a higher level. This seemed to be in conflict with a subsequent email produced to the Tribunal during the course of the hearing, dated 5th June 2003 from Julie Elliott to Fergus Currie. In that email Ms Elliott indicated that she endorsed the child care inspectors recommendations that the Appellant should be sent a notice cancelling her registration.
We do of course accept that appeal to this Tribunal is by way of re-hearing and not a review of the Respondent's decision.
The Tribunal heard evidence that the babies could be left sleeping on occasions for up to an hour outside the church hall. This included times during the winter period when the babies would not be in the Applicant's sight or sound as the church hall doors would be closed. Although the Appellant and other parents may have been checking periodically on the babies, this in our view Is not sufficient. This was a serious and repeated breach of the National Standards with a real risk to the babies concerned.
Whilst the Appellant may have stopped that practice, we are not satisfied that she has a real understanding of the risks involved. The Applicant appeared to put great store on the fact that the parents of the children concerned did not raise any objections to these practices and appeared happy. Secondly the Appellant had not felt it necessary to refer to the National Standards on a regular basis. In her view the National Standards were not something which she was not required religiously to follow, they were something in the background. She did say that she would follow the National Standards in the future but we are not confident that this would be the case.
Firstly because the Appellant did not, even at the Tribunal, appear to see any potential conflict between her role as a childminder and running a play group. She must accept that as a childminder her responsibilities are to the children in her care are paramount.
Secondly in admitting at the hearing that she had colluded with Mrs C and Ms L to try and deceive OFSTED by requiring the parent of one of the children to remove their child, should there be an inspection, in our view brings into question our ability and that of the Respondents to have confident in the Appellant's future actions. Whilst the register itself may have been accurate, the Appellant's action in this regard do indicate to the Tribunal that, at the very least, the Appellant was prepared to carry out the wishes of parents, even if they were in conflict with the Appellant's registration certificate. The certificate of registration is intended to ensure the welfare of the children in the Appellant's care as are the National Standards.
In those circumstances and for those reasons we think it appropriate that the Appellant's registration certificate should be cancelled.
The appeal is dismissed.
The decision was unanimous.
Dated this 7th day of April 2004
Mr James Black
Mr James Churchill.