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England and Wales Care Standards Tribunal
You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> CDB v OFSTED [2003] EWCST 0132(EY) (12 September 2003)
URL: http://www.bailii.org/ew/cases/EWCST/2003/0132(EY).html
Cite as: [2003] EWCST 0132(EY), [2003] EWCST 132(EY)
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CDB v OFSTED [2003] EWCST 0132(EY) (12 September 2003)
CDB v OFSTED
0132.EY
Melanie Lewis
Richard Beeden
Janice Funnell
Heard 8th September 2003
DECISION
INTRODUCTION
1. Her Majesty’s Chief Inspector of Schools (OFSTED) cancelled the registration of CDB acting as a child minder as from 23rd January 2003, pursuant to section 79 (1) (G) Children Act 1989 on the basis that she was no longer a suitable person. The Applicant appealed to the Care Standards Tribunal against that cancellation on 24th February 2003. The applicant refused to agree to voluntarily suspend her child minding until this appeal could be heard and OFSTED had no power to impose any suspension as the regulation that gave them power to do so did not come into force until April 2003.
2. At the hearing before us, Miss S. Freeborn of Counsel appeared on behalf of the Respondent. The Applicant did not attend nor was she represented. We are satisfied that she had notice of the hearing. We were informed by Miss Griffiths of Bevan Ashford the solicitors acting for the Respondent, that when she telephoned the Applicant on 2nd September 2003 in order to clarify her position, she said that she did not intend to appear and that her position was unchanged. Messages were left on the Applicant’s answer phone by the clerk to the tribunal on 5th September in order to clarify the position but no response was received. We are therefore satisfied that the applicant did not wish to formally withdraw the appeal nor did she wish to attend and we proceeded to hear it in her absence.
3. Orders were made at the Directions hearing on 6th June 2003 restricting the reporting of the proceedings and excluding members of the public and the press pursuant to Regulation 18 and 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. We believe that the Orders should continue and accordingly, individuals other than professional witnesses are referred to by initial only and the written decision will be published in accordance with Regulation 27. The tribunal reminded all those present of these restrictions and arrangements.
THE FACTS
4. In February 2000 CDB commenced providing child minding for K who was then 2 years of age. Also sharing her household were her 3 sons. The relationship between CDB and K’s parents was amicable and, subject to one or two areas of disagreement not relevant to this appeal, both sides to the arrangement were content. On 21st February 2002 K who was then just 4 years old went home and said that D, CDB’s middle son, who was then just 13, had inserted his hand into her underwear and touched her genitals. K’s parents took her to CDB’s home that night and told her of the allegation which was put to D who denied it. K never returned to CDB's home again. The Applicant continued to mind another child T until probably Easter 2003. That child’s mother wrote to OFSTED in support of CDB on 12 March 2002 having been informed about the allegations by CDB as recommended by Hilary Turner, OFSTED Inspector (page 20 bundle). Hounslow Social Services Department wrote to that mother about the allegation on 14 March. There is however no known direct contact between that mother and either Social Services or OFSTED after 12 March.
5. K’s Parents had a holiday pre-booked and the allegation was not reported to the police by them until 28th February 2003. A strategy meeting was held on 6th March and K was interviewed by the police on 12th March. She repeated the allegation but was not clear as to how often this had happened. Dr. Holt, Consultant Child and Adolescent Psychiatrist nominated by the Tribunal concluded in his report dated 14th July 2003 that the interview was" too late and too flawed to be unequivocally reliable but nevertheless there was the firm impression that at least on one occasion the boy D had had inappropriate contact with K". He commented that " inappropriate even abusive conduct by otherwise well adjusted and safe adolescent makes toward fostered or cared –for children is a perennial , if too often overlooked hazard".
6. D was cautioned and interviewed on 20th March 2003 with his mother present. He has always denied the allegation. On 5th April 2003 D and CDB were notified by the Crown Prosecution Service that no further action was to be taken. On 19th April 2003 CDB met with representatives from her Local Authority and Hilary Turner OFSTED Inspector. On 21st May 2003 the Local Authority confirmed to CDB formally that they would be taking no further action due to the inconclusive nature of the police investigation.
7. A meeting was set up with CDB on 4th July at a venue near to CDB’s home with Sharon Knight Child Protection Liaison Officer OFSTED and her team manager Jennifer Benwell as OFSTED still had to consider the suitability of the Applicant to continue as a child minder in the light of the allegations. The professionals were concerned that CDB appeared to think that the fact that no action was to be taken against her son by the police and Social Services’ decision to disengage from the family that that was the end of the matter.
8. It was agreed that the transitional OFSTED inspection would go ahead as planned. This was carried out by Hilary Turner on 16th July 2002 . Some matters, again not relevant to his appeal were identified as requiring action and it is agreed that they were acted on. Of relevance under Standard 13 CDB’s knowledge of Child protection issues was assessed as being weak and she duly attended a course organised by the Child Minders Association in October 2002 which in her summary of events sent to Sharon Knight of OFSTED on 20 November she described as "most informative".(page 101).
9. On 29th August 2002 OFSTED issued the first Notice of Intention to refuse registration which was re-sent in revised form on 3rd October. CDB declined to travel into Central London to attend the meeting of the panel to consider her objections to that Notice. However CDB did send in written representations which were duly considered, although the decision to cancel registration was upheld. A notice of the Decision was sent out on 23 January 2003 and it is against that notice that this appeal lies.
10. CDB has always maintained that she finds it very difficult to make the practical arrangements that would allow her to travel into Central London. She did not attend the Directions hearing for this appeal on 6th June 2003 but did send in written representations.
THE HEARING
11. At the start of the hearing Miss Freeborn clarified that she was not seeking a finding from us as to whether sexual abuse had taken place. She submitted that it had never been the Respondent’s case that the decision to cancel registration rested on a finding that D had abused K and the Respondent’s Response (Page 8 ) made that clear. What was of concern was the Applicant’s response to the allegation.
12. Instead she invited us to consider the papers in the bundle and make findings as to the Applicant’s suitability to continue as a childminder. The Respondent’s clear view was that she was not suitable for the following reasons:-
i. The Applicant’s protracted failure (11 days) to notify OFSTED that a serous allegation concerning a child in her household had been made. She should have telephoned OFSTED immediately.
ii The Applicant’s absolute refusal to entertain the possibility of guilt on D’s part.
iii. Her immediate and sustained criticism of K, suggesting that she had a propensity for lying, had been privy to inappropriate information concerning abuse within her own home and was attention seeking. This was a worrying reaction from a child minder to something said by a child who was then only 4 years old.
iv. Her lack of insight into the reasons for withdrawing the registration.
v Her failure to introduce any measures to address the risks in the future both to children in her care and her own children. .
13. We clarified that through Counsel that the Respondent accepted that:-
a. The truth of the allegation made by K would never be known. There was a wide range of possibilities which could have caused her to say what she did.
b. We were not being invited to draw an adverse inference from the Applicant’s failure to attend the hearing, although this would be relevant to the costs application which the Respondent intended to make.
c. The Respondent accepted that there could be some foundation in some of the concerns expressed by the Applicant as to the way the various statutory bodies involved had dealt with her case but this did not detract from the core of their concerns. Reliance was placed on the notes of the meeting held on 4th July 2002 with Sharon Knight and Jennifer Benwell which were not disputed even if the advice given was rejected by the Applicant as unworkable (Page 85).
14. All the witnesses having attended we ruled that we would find it helpful to hear brief oral evidence from DC Casson. Hilary Turner and Sharon Knight to clarify points but more particularly to gain more understanding of the range of support and advice that might have been available to the Appellant. We firmly had in mind her written submissions where she expressed her frustrations at dealing with an unfamiliar system which she had not found to be clear and /or efficient.
15. DC Casson confirmed that a copy of the decision not to proceed against D would have been sent to OFSTED and notified by telephone to Social Services. The Applicant was concerned that when she met with them on 19th April 2002 they were not aware of this.
16. Hilary Turner confirmed that when OFSTED became responsible for the registration function of child minders in 2001 all registered Child Minders were sent a copy of the Guide to Registration which we were given a copy of. The Applicant would previously have had a guidance booklet form her Local Authority. This included a section on Child Protection Procedures and registration. However that advice said that the child minder should contact Social Services, not OFSTED. When asked about the booklet at a meeting between CDB, Sharon Knight and Jennifer Benwell, both of OFSTED on 4 July 2002, CDB did not recall the booklet at all (page 88). CDB did confirm at that meeting that she did recall the OFSTED Standards and Guidance although she did not recall the detail in relation to child protection (page 88).
17. Sharon Knight had accepted in her statement that there was a delay in her taking up the case in mid-June 2002 due to her predecessor being on extended sick leave. (page 45). She further explained the administrative systems which forwarded mail to Inspectors who work form home and again accepted that information sent in by the Applicant had not reached Hilary Tuner before she visited on 11th March 2002. Of her work she estimated that about 10% involved child protection issues. This included about 2% (of the total or one fifth of the child protection work) involved allegations by children against family members. She clarified that under the new arrangement the Local Authority retain responsibility for training child minders and offering advice. However this was not a proactive service. It relied on child minders seeking help. OFSTED in these circumstances does not normally ask the advisory arm of the relevant Social Services Department to become involved and did not do so in this case. She was aware that the National Child Minders Association had an office in the Applicant’s local area but could not be clear what assistance they might have been able to give, although she believed they offered an advice line. As a result of her meeting with the Applicant on 4th July 2002 her overall concern was that the Applicant could not over-ride her protective instincts towards her own children as a mother to fulfil her duties with respect to child protection to all children in her care as a professional child minder.
CONCLUSIONS
18. In reaching our conclusions we have considered all the evidence. The burden of proof is upon the Respondent to make out their case and the standard of proof is a balance of probabilities.
19. We have paid close attention to the written evidence sent in by the Applicant in response to the cancellation at pages 11d-g and for the meeting she was not able to attend with OFSTED in December 2002 at pages 95-97. We note that a number of friends have supplied testimonials on her behalf and that the mother of T was content to allow the Applicant to remain as her child minder until Easter 2003, even thought she apparently knew of the allegation.
20. In reaching our decision we acknowledge that the Applicant has not since the allegation was made, had the benefit at any point, as far as we are aware of professional or other independent advice. We also think that it is unfortunate that neither the Social Services Department of Hounslow Council nor OFSTED thought to seek to use the LEA’s remaining advisory and training functions in respect of child minders proactively, given the obvious difficulties CDB was having understanding and coming to terms with the situation she was in. It is further regrettable that the grounds for intention to cancel registration sent to CDB in October 2002 still relied heavily on the assumption that D did in fact carry out an indecent assault (page 37) despite the meeting and inspection in July had sought to shift the focus of concern. That does not become clear in OFSTED’s communications with CBD until the objection panel’s letter to CDB of 23 January 2003. We neither saw nor heard any evidence that suggested that CDB ever understood OFSTED’s real concern, namely CDB’s response to those allegations and in particular her blaming the four year old K as made clear to the tribunal by Counsel. OFSTED stated that this is not the reaction they would expect from some-one who is suitable to be a child-minder. We were therefore surprised that neither the outcome of CDB’s OFSTED transitional inspection in July 2002 nor follow-up inspections (pages 25 & 30/31) found that CDB failed to meet standard 13 (child protection). It is perhaps understandable; therefore, that CDB remained fixated by the allegation itself as a mother rather than addressing her responses and their potential consequences for her as a child minder.
21. Further we accept that after the initial allegation was made the Applicant did her best to co-operate with enquires being made but at times she was confused about the procedures the different statutory bodies were following. As Sharon Knight’s evidence both written and oral made clear she accepted that there was some substance to the complaints raised by the Applicant in her letter to OFSTED dated 20th November 2002 (page 95). We do not make any findings in relation to these points but fully acknowledge the difficulties an ordinary person may have when suddenly confronted with an investigation of this sort.
22. The Respondent has placed emphasis on the Applicant’s failure to notify OFSTED that an allegation had been made or keep appropriate records. We accept that the regulations required this although we note that no time limit is laid down. There is no stated requirement that this should be "immediate". There was a delay of 11 days. The Applicant’s failure to notify OFSTED may well be a reflection of her lack of detailed understanding of the regulations and the traumatic situation she was in. We neither saw nor heard any evidence that suggested that there was an intention to deceive on her part.
23. Many Child Protection investigations are not conclusive. The reality is that it will never be known why K said what she did and repeated in a police interview. There is no clear evidence that begins to make out any of these possibilities on a balance of probabilities, yet the Applicant appears to be able only to consider one explanation, namely that K lied. That is of course possible but so are a number of other explanations. We were therefore persuaded that despite some considerable sympathy for the difficult position the Applicant found herself in, her refusal to accept that there are a range of possibilities as to why the allegation was made, was not an appropriate response from some-one suitable to be a childminder and that despite time for a more mature reflection on the matter CDB remains intransigent (witness her letter to OFSTED of 16 June 2003, page 106, her grounds for this appeal and character witness statements at pages 13a to 13f).
24. Given that the Applicant is not prepared to consider that there is a range of explanations, she clearly found it difficult to go on to consider what steps might be taken to protect both her own children and those minded by her in the future.
25. For these reasons we have considered, but rejected, attaching conditions to the Applicant’s registration under our powers under section 68 (3) (C) Children Act 1989.
26. The Respondent intends to seek an Order for Costs against the Applicant. In accordance with regulation 24 we invite
(a) The Respondent to provide the Tribunal with a schedule of Costs incurred by him in respect of the proceedings by 18th September 2003.
(b) the Applicant to send any written representations to the Tribunal she may wish to make as to whether she should pay some or all of the costs within 14 days of receipt of that schedule and in any event by 2nd October 2003. She should include evidence of her ability to pay, the Tribunal having been informed by the Respondent that she is now working.
27. Therefore, on balance we find that the Respondent has made out their case. Accordingly we dismiss the appeal and uphold the Respondent’s decision to cancel the registration of CBD as a registered child minder.
Melanie Lewis (Chair)
Richard Beeden
Janice Funnell
12th September 2003