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England and Wales Care Standards Tribunal

You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> LM v OFSTED [2003] EWCST 181(EY) (27 June 2003)
URL: http://www.bailii.org/ew/cases/EWCST/2003/181(EY).html
Cite as: [2003] EWCST 181(EY)
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LM v OFSTED [2003] EWCST 181(EY) (27 June 2003)

Mrs L. M. v OFSTED
[2003] 181.EY SUS


His Honour Judge David Pearl
(President)
Mrs Carol Caporn
Mr David Griffiths

Heard on June 25th, 27th 2003.

DECISION

INTRODUCTION

1. Her Majesty's Chief Inspector of Schools (OFSTED) suspended the registration of Mrs LM acting as a child minder as from 29th May 2003. She appealed to the Care Standards Tribunal on the 30th May 2003 and at the same time asked OFSTED that her suspension be lifted. OFSTED refused to lift her suspension and this was communicated to her by letter on 3rd June 2003.

2. This appeal concerns the initial decision to suspend Mrs LM's registration and OFSTED's refusal to lift the suspension.

3. At the hearing before us, Miss L Sinclair of Counsel appeared on behalf of the applicant, and Miss S Freeborn of Counsel appeared on behalf of the Respondent.

4. Orders were made at the commencement of the proceedings under Regulations 18 and 19 restricting the reporting of the proceedings and excluding members of the public and the press. We are satisfied that these Orders are necessary in this case to safeguard the welfare of children and to safeguard the private life of the people involved in this matter. We believe that the Orders should continue, and thus individuals, other than professional witnesses, are referred to by initials only, and the written decision will be published in accordance with Regulation 27 in this form.

5. We heard live evidence from the following officers employed by OFSTED: Sharon Knight, Valerie Wilson-Hooper, Anita Bray, Stephanie Ward, and Jette Helbo. We heard from three parents Mrs K (the mother of NK), Mrs N (the mother of AN), and Mrs C (the mother of JC). Finally, we also heard evidence from Mr DM and Mrs LM.

6. At the end of the hearing on the second day, we retired to consider our decision. We returned to give our decision, together with brief reasons, in accordance with Regulation 23(2). Our decision, which is unanimous, is to dismiss the appeal and to confirm the decision of OFSTED both to suspend Mrs LM's registration and to refuse to lift that suspension. We now provide a detailed document in accordance with Regulation 23(3).

THE FACTS

7. We set out the facts of this case in brief. OFSTED received notification from the London Borough of Bromley on 23rd May 2003 that an investigation had commenced as a result of an allegation that had been made against Mrs LM's son X aged 25 of a recent alleged indecent assault on a 11 year old girl. This allegation was referred to in the hearing as "Allegation A". In fact, X had been summoned to the police station on 21st May 2003, and Mrs LM knew about this fact as from 2.15pm on the 21st May 2003.

8. Coincidentally, one of the Inspectors, Anita Bray, telephoned Mrs LM on the 22nd May 2003 to arrange for her to have a routine inspection the following week. Mrs LM did not mention to Anita Bray during the course of this telephone conversation anything about the difficulties that X was facing. She told us in evidence that she was in a state of shock.. She agreed that she should have notified, but she said in evidence that she wished to discuss the problem with Miss Bray when she had done her inspection.

9. On 23rd May 2003, OFSTED were informed of a second allegation against X. ["Allegation B"]. This allegation concerned a child who had been minded by Mrs LM. The event is said to have occurred some time ago, and the investigation is pending. OFSTED were told by the police that they could not disclose anything about "Allegation B" to Mrs LM.

10. Mrs Wilson-Hooper and Mrs Silvia Richardson visited the applicant's house on 23rd May 2003 at 4.00pm that afternoon. They discussed with her the "Allegation A". They were informed that X had moved out of the property. It would appear that X moved out of the property on his own initiative on the afternoon of 21st May. Mrs LM told us in evidence that if X had not left of his own initiative, she would have phoned the police to make sure he did leave. As a result of the visit, the inspectors left with a signed form which says "I will suspend my childminding until OFSTED tells me that all the Child Protection Investigations are over". It is signed by Mrs LM and witnessed by Mrs Wilson-Hooper.

11. There is a clear divergence of view as to how Mrs LM came to sign this document. Mrs LM said that she was simply given the choice of either a voluntary suspension or a legal suspension. She told us in evidence that she was in such a state that she would have signed anything. She said that she was not thinking straight. To use her own words: "If they had told me that the sky was black I would have signed it."

12. In contrast, Mrs Wilson-Hooper said that when she raised with Mrs LM the possibility of a voluntary suspension, she agreed to it straight away. Mrs Wilson-Hooper told her that she would have to inform the parents immediately, and that Mrs LM commenced ringing the parents. Mrs Wilson-Hooper said that Mrs LM was under no pressure from the inspectors and that if she had declined voluntary suspension, then that fact would have been communicated to the OFSTED office and discussions would have taken place as to the appropriate action.

13. The notes of the visit were written by Mrs Richardson and they conclude: "Mrs LM has agreed to the suspension of her child minding registration on a voluntary basis. Mrs LM agreed not to return to childminding until instructed by OFSTED. Mrs LM agreed to inform the parents of AN of her suspension from minding when they returned from holiday on Tuesday."

14. There was a telephone conversation between Mr DM and Mrs Jette Helbo, a Child Care Inspector, on 28th May 2003. There is a difference of view as to what was said during this telephone conversation. Mrs Jette Helbo makes clear in her evidence that during this conversation Mr DM told her that his wife wished to resume child minding. The note of the telephone conversation, compiled straight after the call, reads as follows: "His wife wants to get back to work as she has financial commitments and the parents of the children need care." Mrs LM's witness statement says much the same thing: "My husband telephoned OFSTED in my presence and confirmed that I was going to start work again."

15. In evidence before us, however, both Mrs LM and Mr DM said that Mrs Jette Helbo was told that Mrs LM had already changed her mind about the voluntary suspension and that she had already recommenced childminding MK and AN the previous day.

16. There was a strategy meeting on 29th May 2003. Subsequent to that meeting, Mrs Wilson-Hooper and Mrs Jette Helbo visited the applicant's home at 1.00pm to monitor whether childminding was taking place. There were minded children present. Mrs LM gave the inspectors a letter that states: "…I have to give formal notice that I withdraw my voluntary agreement for the following reasons.1. Having thought about the manner in which this voluntary agreement was obtained, I feel it was not voluntary but was obtained under duress. 2. Having discussed this matter fully with my clients, the children's mothers, all three communicated their desire for me to continue to look after their children."

17. Mrs Wilson-Hooper, this time accompanied by Mrs Silvia Richardson, visited the premises again at 6.15pm that same day, 29th May 2003. She was handed the notice of legal suspension. The reason for the decision is set out as follows:

  • On Friday 23rd May 2003 OFSTED was notified by the London Borough of Bromley Social Services Department of a child protection investigation under s 47 of the Children Act 1989 concerning X, the adult son of Mrs LM. Allegations had been made against him which were being investigated by the police. X gave his home address as Mrs LM's address.


  • Later on 23rd May 2003 representatives of OFSTED met Mrs LM. She confirmed that allegations of indecent assault against a child had been made against her son X, who had been arrested on 21st May 2003. Mrs LM had not reported this serious event to OFSTED as required. She had not mentioned it notwithstanding she had discussed a forthcoming inspection with an inspector on the telephone on 22nd May 2003.


  • Mrs LM informed OFSTED's representatives that X had moved to live elsewhere, but would be visiting her home later that day.


  • Mrs LM signed a declaration on 23rd May 2003 that she would voluntarily suspend her childminding service until the conclusion of the child protection investigation.


  • On 28th May 2003, Mrs LM's husband contacted OFSTED by phone to confirm that Mrs LM was not going to abide by her declaration not to look after children. He said that X was not living at home.


  • On 29th May 2003, representatives of OFSTED visited Mrs LM's home. She had two minded children with her and said that their parents agreed to her continuing to look after them and a third child notwithstanding the investigation had not been concluded. She confirmed that she had resumed childminding on 27th May 2003. She had not notified OFSTED in advance of this serious event.


  • Mrs LM provided written confirmation that she has withdrawn her voluntary agreement on the basis that that agreement was given under duress, and the parents of the minded children, after full discussion, have asked her to continue to look after their children.


  • In view of the lack of clarity over X's domestic situation, Mrs LM's failures to notify OFSTED of serious events, and the ongoing investigations, it is considered reasonable to affect a suspension until the police, Bromley's Social Services Department and OFSTED can complete their investigations.

18. The decision to suspend was taken by Mrs Stephanie Ward, the Area Manager. Mr DM spoke to Mrs Stephanie Ward by telephone on 30th May 2003 and asked that the suspension be lifted. This was followed up by a letter from Mrs LM on 30th May 2003.

19. Anita Bray and Carol Tyler visited the house on June 2nd 2003 in connection with the application to lift the suspension. She was asked a list of questions and notes were taken. Anita Bray and Mrs Tyler returned the following day, June 3rd 2003, to deliver OFSTED's response. Earlier that day, the police had informed OFSTED that OFSTED were now able to reveal the fact of "Allegation B" to Mrs LM. The inspectors left a letter from Mrs Stephanie Ward with Mrs LM. The letter says: "You have discussed with OFSTED the issues relating to X's arrest on 21st May 2003. I now need to notify you of a further aspect however. The Police confirmed, at approximately 1pm today, 3rd June 2003, that OFSTED can inform you that a second child has made an allegation, which occurred in the hours the child was minded, and which is currently being investigated. OFSTED was aware of this second issue on 23rd May but, without the permission of the Police, was unable to discuss it with you. In view of the reasons set out in the Notice of Suspension, and the second child protection complaint, OFSTED does not agree your request for the suspension to be lifted."

20. We know that on 18th June 2003, X was charged with indecent assault in connection with both Allegation A and Allegation B. There is a letter dated 24th June 2003 from a Detective Constable French that states in relation to Allegation B: "The allegation concerns a series of indecent assaults that occurred at the LM home between the years 1993 and 1994 against a child then aged 4 years of age. This child, now aged 14, was being childminded by Mrs LM at the time the alleged assaults took place. The perpetrator of the Assaults is alleged to be X who was 15/16 at the relevant time. On 18th June 2003 X was arrested for these assaults and subsequently charged with two specimen counts of indecent assault. X was bailed to appear at Dartford Magistrates Court on 25th June 2003."

21. Mrs Wilson-Hooper and Miss Bray visited the home on 23rd June 2003 on a monitoring visit to check that she was complying with the legal suspension. It was confirmed that she was not minding children.

DISPUTES OVER THE FACTS

22. The most important dispute on the evidence we have set out above concerns what was said in the telephone conversation on the 28th May 2003. Did Mr DM tell OFSTED that Mrs LM had resumed working with children? There is a clear difference in recollection of what was said. In so far as there is a difference, we prefer the view of OFSTED which of course is the same as Mrs LM's witness statement. We do not accept that Mr DM told OFSTED that she had returned to work on 27th May 2003.

23. There is also a difference as to exactly when Mrs LM was told about the second allegation. There is a hint in the evidence of Mr DM and Mrs LM that there was a suggestion of a second allegation prior to the visit on 3rd June 2003. This is denied by the OFSTED witnesses. We do not believe that much turns on this difference, except in so far as it impacts on credibility of what we have been told. In so far as there is a difference of emphasis, we prefer the evidence of OFSTED's witnesses.

24. The third difference relates to whether any pressure was placed on Mrs LM to sign the voluntary suspension form. We accept that Mrs LM was in a state of shock and that the meeting on the 23rd May must have been a very difficult one for her. With the benefit of hindsight, the visit could well have been handled with more sensitivity. Nonetheless, we are satisfied that Mrs LM knew what she was doing, and was fully aware when she signed the document that she must not childmind whilst the investigations were pending.

THE LAW

25. We deal now with two matters of law that were argued before us, namely the appropriate standard of proof that we should adopt, and secondly, whether we should take account of post decision facts or whether we are restricted to the facts that were known to the inspectors when they reached their decisions.

26. We consider first the standard of proof. The key provision is Regulation 3 of the Child Minding and Day Care (Suspension of Registration)(England) Regulations 2003 made under s 79H of the Care Standards Act 2000. The regulations came into force on 1st April 2003, and this is the first opportunity that the Tribunal has had to consider them.

27. Regulation 3 provides:

(1) The Chief Inspector may, in accordance with regulations 4,5,6 and 7, suspend the registration of any person acting as a child minder or providing day care if he has reasonable cause to believe that the continued provision of child minding or day care by that person exposes or may expose one or more children to whom it is or may be provided to the risk of harm and the purpose of the suspension is for one or both of the purposes set out in paragraph (2)

(2) The purposes of the suspension are -
(a) to allow time for the circumstances giving rise to the Chief Inspector's belief to be investigated;
(b) to allow time for steps to be taken to reduce or eliminate the risk of harm.

28. It is clear to us that the question that the Tribunal must ask itself on an appeal is whether there is reasonable cause to believe that the continued provision of child minding may expose a child being minded by her to the risk of harm.

29. The standard is not the same standard as that which is applied in care proceedings (Re H 1996 1 All ER 1) and which has been adopted by the Tribunal when dealing with appeals of persons placed on the Protection of Children Act list (C vSSH [2002] Fam Law 516 (Tribunal); [2002] EWHC 1381(Scott Baker J); [2003] EWCA Civ 10(CA)). In that area the test which is applied is the balance of probability, and the approach of Lord Nicholls in Re H of "the more serious the allegation, the stronger should be the evidence" has been applied by the Tribunal with the approval of both the Administrative Court and the Court of Appeal.

30. On the other hand, the standard is not the same as that applied in s 47 Children Act investigations. That section refers to the duties on a local authority to investigate "when they have reasonable cause to suspect" that a child is suffering or is likely to suffer significant harm. ( See S v Swindon Borough Council [2001] EWHC Admin 334). The trigger to commence an investigation is a low one.

31. We are of the view that "reasonable cause to believe" falls somewhere between the balance of probability test and "reasonable cause to suspect" in s 47. We agree with Miss Freeborn that the belief is to be judged by whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child might be at risk (Balchin v Chief Constable of Hampshire [2001] EWCA Civ 538).

32. The second issue of law relates to whether we are entitled to take account of information known to us at the date of the hearing, but not available to the Chief Inspector when the decisions were taken. We believe that the correct approach is the approach the Tribunal adopted in the case of C v OFSTED [2002] 87EY dealing with s 79G(1) of the Children Act 1989.

33. The Tribunal adopted the practice from the Registered Homes Tribunal (See Lyons v East Sussex County Council (1988) 86 LGR 369). The Tribunal said: "We are dealing with the care and welfare of children and it is only right that post-decision facts should be made available to the Tribunal." It is our view that this fundamental principle should be extended into the suspension area.

34. In any event, the Regulations would appear to acknowledge that this is the correct approach. Regulation 8 in particular recognises that the Tribunal has the power to consider the situation as at the date of the hearing. Such information may of course be either to the advantage or to the disadvantage of the appellant, and this will depend on the particular facts of the case.

CONCLUSION

35. At the conclusion of Mrs LM's evidence, the Tribunal asked Mrs LM if she would step back from her position as X's mother and ask herself whether a responsible child minder would think that the Chief Inspector had been correct to suspend a child minder knowing all that he did know at that time. Her reply was "probably".

36. Mrs LM's reply to our question was made at the end of a long day, and we should not place too much weight on it. Nonetheless, it does confirm our view of the evidence that was available to the Chief Inspector, first on 29th May 2003 when imposing the suspension, then on 3rd June, 2003 when refusing to lift the suspension and available to us on 27th June 2003 when considering the appeal. There is a "reasonable cause to believe" that continuing as a child minder may expose a child to the risk of harm, and the suspension was the appropriate and proportionate step to take to allow time for the circumstances to be investigated.

37. Before we leave this case, we need to draw attention to some of the disturbing features of this case that became apparent during the presentation of the evidence. The mothers who gave evidence in support of Mrs LM and who witnessed some of the visits were concerned about the manner in which some of these visits had been conducted. Some aspects give us cause for concern. It may be that the various options open to OFSTED were not sufficiently explained to Mrs LM prior to their asking for voluntary suspension. An undertaking regarding X's departure may not have been sufficient in this case, but we do think that the inspectors should have explained as best they could to Mrs LM why that was not sufficient. We appreciate that Allegation B could not be disclosed to Mrs LM initially because of the ongoing police investigation. It may be thought appropriate, in the light of the problems that this case has illustrated, that OFSTED need to discuss with the police and the social services how best these matters can be handled in the future.

38. But our decision, communicated to the parties after the conclusion of the hearing is to confirm the Chief Inspector's decision to suspend registration and his refusal to lift the registration. Our decision is unanimous.


His Honour Judge David Pearl
(President)
Mrs Carol Caporn
Mr David Griffiths

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