England and Wales Care Standards Tribunal

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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> K v OFSTED [2003] EWCST 191(EYSUS) (22 July 2003)
URL: http://www.bailii.org/ew/cases/EWCST/2003/191(EYSUS).html
Cite as: [2003] EWCST 191(EYSUS)

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K v OFSTED [2003] EWCST 191(EYSUS) (22 July 2003)

K v OFSTED
[2003] 191.EYSUS

His Honour Judge David Pearl
(President)
Mr Graham Harper
Ms Denise Rabbetts

Heard on July 21st 2003.

DECISION

1. Her Majesty's Chief Inspector of Schools (OFSTED) suspended the registration of K acting as a child minder as from 26th June 2003. She appealed to the Care Standards Tribunal on 30th June 2003. This letter was addressed to Mr P Gould, CIE Area Manager, Care Standards Tribunal, 18 Pocock St, London. In those circumstances we have treated the letter both as an appeal from the decision taken on 26th June 2003 and as an application to lift the suspension under Regulation 7 of the Child Minding and Day Care (Suspension of Registration)(England) Regulations 2003.

2. The Response (D4) of the Respondent states that the grounds for suspension as set out in the notice sent to K still remain. OFSTED are therefore of the opinion that the suspension of K's registration is appropriate and they oppose any application for the suspension to be removed.

3. The Suspension of Registration states as follows: "The reason that your registration is suspended is because OFSTED has reasonable cause to believe that the continued provision of care exposes or may expose one or more children to the risk of harm. Suspension will allow time for the circumstances giving rise to that belief to be investigated. The circumstances under investigation that have given OFSTED reasonable cause to believe there is a risk of harm are that:

• A person living on the premises is being investigated by the Police and Social Services following an allegation that a child has suffered harm whilst being cared for on the premises;
• At the time that the child is alleged to have been harmed you were absent from the premises and left the child in the care of a minor.

4. At the hearing before us, Miss S Freeborn of Counsel appeared on behalf of the Respondent. K appeared in person, although she had the assistance of a friend. We are satisfied that the presentation of her case was not disadvantaged by the fact that she was not represented, and the Tribunal ensured that she was able to put her case to us clearly and succinctly.

5. The Tribunal has had the opportunity of considering the applicable law in this area in the case of Mrs L.M. v OFSTED [2003] 181.EYSUS. In that case, the Tribunal considered the appropriate standard of proof that was required for Regulation 3 of the Suspension Regulations. In paragraph 31 of that decision the Tribunal said:

"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 Children Act 1989. We agree [with Counsel] 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."

6. Miss Freeborn submitted that this was the correct approach to adopt. The Tribunal in this case, its lay membership differently constituted, agrees with this view. It wishes to emphasise also that the Suspension power is provided specifically to allow time for the circumstances giving rise to the Chief Inspector's belief to be investigated, and to allow time for steps to be taken to reduce or eliminate the risk of harm. Furthermore, Regulation 7 imposes on the Chief Inspector a duty to keep the situation under constant review, and he "shall lift the suspension at any time when he is satisfied that the grounds for suspension no longer apply."

7. We heard evidence from the mother of "C", and the following OFSTED officers: Ms Davies, Ms Shelley, Ms De-Lastie and Ms Cass. K gave evidence to us, and we have had the opportunity of reading a large number of letters written in support of K, and we note that one of the letters of support is from the mother of "S".

8. The facts that gave rise to the suspension are not in dispute. K was child minding for two children on 18th June 2003; "C" and "S". At about 3.50pm that afternoon, the mother of "C" received a phone call at her place of work from K. According to the evidence given by the mother of "C", K told her in this phone call that she (K) had to take her daughter to the hairdressers' and that she was going to leave "C" and "S" in the care of "A" her 13 year old son. The mother of "C" went by taxi to K's house and arrived there at 4.05 pm. She let herself into the house, and found "C" and "S" in the front room with "A". She left with her son. According to K's evidence, she returned to the house at 4.20pm, and both "C" and "S" had been collected.

9. "C" made a number of disclosures to his mother relating to inappropriate sexual behaviour by "A" that had taken place whilst "C" and "S" were alone with "A". "C"'s mother obtained advice on what to do, and she confronted K with the allegations. K made contact with OFSTED to inform them of what had happened, and the inspectors then visited the house. Voluntary suspension was suggested but was not accepted by K.

10. We were told by Miss Freeborn that the inquiries by the Police and by the Social Services have now been concluded, and that OFSTED has now been informed, informally, that no further action is contemplated by either of these agencies. Accordingly, OFSTED is now able to commence its own investigation.

11. In her evidence, K admitted that she left "C" and "S" alone with "A" for a period of time on 18th June 2003. In her evidence to us she said that she left "C" and "S" playing with lego and "A" watching TV. She said that she told "A" to let them play until the parents turned up. She admitted to us that leaving them alone was wrong, that it was an error of judgement on her part, and she now realises that even if the parents had agreed, she should never have left them alone with a minor. There may be exceptional emergency situations, but taking her daughter to the hairdresser for an appointment clearly does not fall into that category.

12. K accepted in her evidence to us that anything could have happened whilst she was out of the house, and that the concerns of OFSTED need looking into.

CONCLUSION

13. We are satisfied that at the time that the decision was taken a reasonable cause to believe that children might be at risk of harm existed. This continued during the Police and Social Services investigations.

14. We must also look at the situation as it is at the date of the hearing. The investigations of the Police and Social Services have now concluded and no further steps are being taken. We do not know what has led these agencies not to take matters any further, but the position now is that OFSTED can start their enquiries. There is no doubt that OFSTED will wish to obtain information from both the Police and Social Services, and these matters will be relevant to OFSTED's investigations.

15. In these circumstances, we are satisfied that there is still a reasonable cause to believe that the continued provision of child minding exposes or may expose children to the risk of harm, and that suspension is a proportionate response to allow time for OFSTED to investigate and allow time for steps to be taken to reduce or eliminate the risk.

16. Accordingly, we dismiss the appeal in this case. We confirm the decision to suspend registration and the refusal to lift the suspension.

17. Our decision is unanimous.

His Honour Judge David Pearl
(President)
Mr Graham Harper
Ms Denise Rabbetts.

July 22nd 2003.