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England and Wales Care Standards Tribunal
You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> SR v OFSTED [2003] EWCST 240(EYSUS) (28 November 2003)
URL: http://www.bailii.org/ew/cases/EWCST/2003/240(EYSUS).html
Cite as: [2003] EWCST 240(EYSUS)
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SR v OFSTED [2003] EWCST 240(EYSUS) (28 November 2003)
Mrs S.R. v. OFSTED
[2003] 240.EY SUS
Mr Mark Rowland
Ms Marilyn Adolphe
Ms Linda Redford
Heard on November 24th 2003
DECISION
1. This is an appeal against a decision dated 3 November 2003 of
Her Majesty's Chief Inspector of Schools (OFSTED) to suspend under
regulation 3 of the Child Minding and Day Care (Suspension of Registration)
(England) Regulations 2003 the registration of the Appellant as
a child minder under Part XA of the Children Act 1989.
2. At the hearing, the Appellant appeared in person and the Respondent was represented by Miss Susan Freeborn of Counsel, instructed by Bevan Ashford, solicitors. We announced our decision at the conclusion of the hearing and we now give our reasons.
3. Orders were made at the commencement of the proceedings under regulations 18 and 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, restricting the reporting of the proceedings and excluding members of the public and press. We were satisfied that these orders were necessary in this case to safeguard the welfare of the children and the private life of the people involved in this matter. The restricted reporting order prohibits the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the Appellant or any child for whom she has cared. We believe that the restriction on reporting should continue and therefore witnesses are referred to in this decision by initials only. Under regulation 27(3), the decision will be published with the Appellant's name reduced to her initials.
4. The Appellant has been a registered childminder since 14 November 2000. On 15 September 2003, she began caring for JA, who was then aged 16 months, the son of Ms O.
5. Ms O gave evidence at the hearing. She told us that she had chosen the Appellant to look after her son because she did not do "school runs" and she did not have pets. When she had first visited the Appellant, on 13 September 2003, she had made it clear to the Appellant that she did not want JA to be taken out in the cold and that that was why it was important to her that the appellant did not pick children up on school runs. She said that she normally picked JA up between 4pm and 4.30pm but had once arrived shortly before 3.15pm and found the Appellant dressed and ready to go out, although JA was asleep. This had caused her concern as to whether the Appellant was in fact picking children up from school and as to what happened to JA, since he had apparently not been ready to go out with the Appellant. She suspected he was being left with a neighbour if he did not accompany the Appellant when she went to the school. Therefore, she told us, she decided to find out what did happen.
6. On Monday, 20 October 2003, she finished college early and killed some time window-shopping before deliberately arriving at the Appellant's first floor flat at 3.18pm. She rang the bell and, having received no response, knocked at the letter box, which still elicited no response. She therefore sat on the stairs to await the Appellant's return.
7. After a short while, Ms O told us, the Appellant arrived with her son and two other children but not JA. The Appellant said she had only been gone five minutes, although Ms O told us that it had been a bit longer. She said that the Appellant did not let her into the flat but instead Ms O took the pushchair downstairs and the Appellant brought JA out to her. She then put JA in the pushchair. She had not heard the Appellant speak to anyone as she had gone into her flat and did not notice anyone pass her as she was putting JA into the pushchair. The Appellant had not said anything to her about there being someone in the flat. She heard the Appellant call out of the kitchen window to her son. She was very upset and cried all the way home. She discussed the matter with JA's father. They concluded that JA had been left in the Appellant's flat by himself. She decided to find a new childminder and, on the following day, went to Sure Start look at lists of child minders. She was advised that she should report the matter to OFSTED. Ms O did so on Wednesday, 22 October 2003. On the same day, the Appellant visited her and told her that a mother of another child had been with JA in the flat while she had been at he school.
8. The OFSTED witnesses told us that, on 30 October 2003, there was a strategy meeting at which a joint investigation by the local social services department and the police was established. On Friday, 31 October 2003, two OFSTED inspectors visited the Appellant to deliver to her a document informing her that there had been a complaint and inviting her to telephone certain numbers for further information. The letter also raised the possibility of the Appellant voluntarily suspending her childminding and asked the Appellant to give a decision by the following Monday. It is common ground that the visit was not very fruitful as the inspectors were under instructions not to discuss the details of the complaint with the Appellant. Over the week-end, the Appellant contacted the parents of the children for whom she cared and decided not to suspend her childminding voluntarily. On 3 November 2003, the inspectors returned to deliver the decision of OFSTED to suspend the registration under regulation 3 of the 2003 Regulations. On 5 November 2003, the Appellant lodged this appeal.
9. The investigation began with Ms O being interviewed by a police officer and a social worker. She told them much what she has told us and also made it clear that she did not wish criminal charges to be brought. On 11 November 2003, the Appellant was interviewed by the police officer, in the presence of a solicitor. We have before us a copy of the transcript of the interview. Substantially, the Appellant told the police officer what she told us.
10. The Appellant's case is that, on 20 October 2003, JA was not left by himself while she went to the school but was left with Ms U. She says that she was minding Ms U's son at the same time as JA. Her own child was usually brought home from school by Ms W but Ms W was sometimes not able to do that, particularly on Mondays. In this instance, the Appellant says, she had put the boys in their cots. They had gone to sleep and she too had dosed. At about 3pm, she was awoken when Ms U came to collect her son. She had not heard from Ms W and so she had to go to the school. Both children were still asleep. Ms U said it was very windy and, suggested that the Appellant go to the school while she woke her son and got him ready to leave and kept an eye on JA. The Appellant told us that JA had been coughing and she decided to leave him asleep, under Ms U's supervision, while she went to collect her son. She told Ms U not to open the door or answer the telephone. The school is close to her flat and she expected to be out for ten to twelve minutes. While at the school, she arranged to bring home two of her son's friends. She arrived to find Ms O waiting and asked how long she had been waiting. The reply, she said, was "five minutes". The appellant then said she was really sorry and that she had left JA with another child's mother and Ms O said that that was all right. She told us that Ms O had previously expressed a preference for not going to the flat because she found the stairs difficult. The Appellant said that she had brought JA to Ms O and while Ms O was putting him in the pushchair, Ms U had left the flat with her son. Ms O, she said, would have seen Ms U. The Appellant had said good-bye to both JA and Ms U's son from the window. She said that Ms O had not brought JA during the next two days. She went to visit Ms O on the Wednesday evening in order to find out what was happening. Ms O told him of her suspicion that JA had been left alone in the flat. The Appellant asked her why she had not raised that at the time and Ms O said she did not wish to be disrespectful.
11. The Appellant said that leaving JA with Ms U was wrong but said that it had seemed a reasonable thing to do at the time. While being interviewed by the police officer, the Appellant produced a letter from Ms U, substantially supporting her account. Ms U gave evidence to us to the same effect.
12. The OFSTED witnesses told us that, on 13 November 2003, a second strategy reviewed the position. It was felt unlikely that either the police or the social services department would wish to take any action but it was resolved to speak to Ms U, to the other parents to see whether they had any concerns and, perhaps unrealistically, to JA. On the same day, the President gave directions for this hearing.
13. At the commencement of the hearing, we were told that the Appellant's son had been interviewed and no concerns had been raised, that the parents had also said that they had no concerns and that Ms U had told the police officer that she had been looking after JA at the material time. At a strategy meeting on Friday, 21 November 2003, it was decided to end the child protection investigation but that OFSTED should consider the question whether the Appellant should continue to be registered as a childminder. We were told that OFSTED themselves wished to interview Ms U and the Appellant before reaching a final decision as to whether the Appellant's registration should be cancelled.
14. Regulation 3 of the 1993 Regulations 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 of the 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."
15. Regulation 8(1) provides for a right of appeal to the tribunal and regulation 8(2) provides:
"Subject to paragraph (3), on an appeal under paragraph (1), the tribunal may -
(a) confirm the Chief Inspector's decision to suspend registration …;
(b) direct that the suspension shall cease to have effect
and, for the avoidance of doubt, in any case in which the tribunal exercises its power under (a) it may also exercise its power under (b) if at the time of making its determination it is satisfied that the conditions for suspension are no longer met."
16. Thus, for a suspension to be continued, the conditions for suspension must both have been satisfied when OFSTED made the decision and at the date of the hearing of the appeal. In the present case, it is plain that if the conditions are satisfied now, they were also satisfied on 3 November 2003. Accordingly, we will consider primarily whether they are satisfied now.
17. Regulation 3(1) requires us to be satisfied that there is or may be a risk of harm. We must also be satisfied that suspension is for one or both the purposes identified in regulation 3(2). In the present case, OFSTED rely on regulation 3(2)(a) because it is said that further time is required for investigations. If we are satisfied that further time is required, it seems to us that, at any rate in the circumstances of this particular case, we should consider only whether there may be a risk of harm and not whether there actually is a risk of harm, because otherwise the result of the very investigation requiring the suspension would be prejudged. The party against whom we determined the point could legitimately claim that further investigation would have vindicated them or that they might have been vindicated at a hearing for which they had had more time to prepare.
18. In fact, we heard evidence from all the key witnesses, the Appellant, Ms O and Ms U. We could, if necessary make findings of fact as to what happened on 20 October 2003. However, we consider first whether OFSTED's desire to make further enquiries is reasonable.
19. The first question is whether Ms O's evidence is credible, because, if it is not, there is no point in investigating the case further. Like the police and social services department, we formed the view that she was probably an honest witness but, even if that is so, it does not necessarily follow that all her evidence is entirely accurate or, more importantly, that her belief that JA had been left alone was well founded. Nonetheless, her complaint plainly, in our view, required investigation when it was first made. Furthermore, although the evidence given by the Appellant and Ms U contradicts some of Ms O's evidence and presents a credible alternative case, it is not so compelling as to exclude the possibility of Ms O being right in her belief that JA was left alone. It is unnecessary for us to attempt to resolve the differences between the witnesses or to list the discrepancies in the evidence of the Appellant and Ms U that might, on further investigation, prove significant. It is enough that we should find that both OFSTED and the Appellant have arguable cases on the issues whether there was, on 20 October 2003, any risk of harm to JA and whether there is still a risk to other children for whom the Appellant may care.
20. The second question is whether time needs to be allowed for further investigation. Miss Freeborn opened her case by saying it was necessary further to interview Ms U and the Appellant. It can of course be said that Miss Freeborn exercised the opportunity of cross-examining both Ms U and the Appellant at the hearing before us. However, the advantage of an interview is that there is then an opportunity to seek corroboration of what is said before a final decision is made. Miss Freeborn said that a number of new issues had arisen as a result of the evidence given to us. There certainly appear to be some discrepancies in the accounts that have been given, although some may well be more apparent than real. For instance, the Appellant produced on the morning of the hearing a letter from Ms W, saying that she usually collected the Appellant's son from school. On seeing this, a child protection liaison officer, who gave evidence to us, telephoned the school and spoke to a person who then spoke to the Appellant's son's teacher and relayed back evidence that the Appellant frequently collected her son herself. The teacher apparently could not say whether she arrived with other children. That evidence was third-hand by the time we heard it and could not effectively be challenged, but it merits investigation. It might turn out that the teacher had mainly had the last four weeks in mind and would say that the Appellant had very rarely been to the school between 15 September 2003 and 20 October 2003 and that, when she had, she had been seen to have JA with her except on 20 October 2003 itself. In our view, this illustrates the extent to which further investigation is required. Of course, investigation could go on forever and there comes a time when a decision must be made. As we have said, a decision could be made now, but we consider that a very much better decision would be made after some relatively brief further investigation and that OFSTED should have the opportunity to carry out such further investigations. It is relevant that OFSTED were not in control of the child protection investigation and that the issues they need to consider are slightly different from those that had to be considered by the police and the social services department.
21. We turn then to the risk of harm. The phrase "risk of harm" must be read as a whole and the seriousness of the risk, i.e., the likelihood of the harm occurring at all, must be considered as well as the seriousness of the possible harm. The more likely it is that harm might ensue from an event the more one must be satisfied that the event will not happen at all. That phrase is not qualified by such words as "serious" or "significant" but it is implicit in the legislation that the risk of harm must be significant in the sense of being sufficiently serious to justify suspension with all that implies for the child minder and the other parents who use her services.
22. The Appellant naturally referred to the financial loss she was suffering and the inconvenience caused to parents of other children for whom she had been caring. She has produced letters from parents and we also heard oral evidence from Ms N, a midwifery sister who had known the Appellant for some time and who was desperately anxious for the Appellant to be allowed once more to look after her three-year old son who was plainly very happy at the Appellant's. Ms N recognised the need to investigate Ms O's complaint but she herself trusted the Appellant, whom she had known for some time.
23. As we have indicated, because we consider that further investigations should be carried out, we do not consider that we should decide what actually happened on 20 October 2003 or whether there is in fact a risk of harm. Consequently, we do not decide whether JA was left alone in the flat or whether he was left with Ms U. However, we are satisfied that he may have been left alone. There is credible evidence from which that inference might be drawn. It is obvious that if a seventeen-month old child is left alone in a flat, asleep in a cot, there is a risk that he will wake up and come to some, quite possibly serious, harm if he tries to climb out. Accordingly, we are satisfied that a child for whom the Appellant was providing care may have been exposed to a risk of harm. The question whether there may now be a risk of harm to a child for whom the Appellant might care invites consideration of the question whether there might be a repetition involving another child. It seems to us to be material that, if the Appellant left JA alone, she has shown an astonishing degree of misjudgement, has failed to acknowledge it and has mounted a dishonest defence which has not only involved lying herself but has also involved persuading Ms U to lie on her behalf. In those circumstances, we would see no reason to trust her not to repeat her behaviour. As we are satisfied that she may have left JA alone, we are satisfied that there may be a risk of harm if she is allowed to continue child minding.
24. Furthermore, we are satisfied that the possible risk of harm is sufficiently serious to justify the continuation of the suspension while the question whether JA was actually left alone is further investigated. We have had regard to the difficulties facing the Appellant and the parents of other children while the suspension is in force but the risk of harm that arises if a young child is left alone is too serious to allow us to lift the suspension before the investigation is complete. The position was the same on 3 November 2003.
25. We might have reached a different conclusion if there had been no suggestion of JA being left alone and it was clear beyond any reasonable doubt that he had been left with Ms U. That would have been a breach of the National Standards and a serious matter warranting investigation by OFSTED but we might not have concluded there was a risk of harm sufficient to justify suspension while those investigations were carried out. Firstly, the Appellant has acknowledged that, if she left JA with Ms U as she says she did, it was wrong, and so we might have been prepared to accept for the relatively short time involved that there would not be a repetition, although there is some evidence that the National Standards have been breached on other occasions, which may suggest that the Appellant is too ready to substitute her own judgement for the standards properly required of her. Secondly, although leaving a child with a person who has not been cleared as suitable to work with children may present a risk, it may be thought that the risk involved in leaving a child for fifteen minutes or so with a woman whom one has known for a few years as a mother of four young children is relatively small. It is, after all, a risk taken by parents every time they allow their children to visit their friends' houses without accompanying them themselves. However, it is unnecessary for us to express a concluded view on this issue.
26. We confirm the Chief Inspector's decision dated 3 November 2003 to suspend the Appellant's registration until 15 December 2003.
27. Nonetheless, we are concerned about the considerable difficulties in which the Appellant and parents such as Ms N are placed while the suspension is in place, particularly as it seems to us to be far from certain that it will finally be established that there ever was a significant risk of harm to a child in the Appellant's care. We express the hope that the investigations can be concluded before 15 December 2003. The suspension will have to be lifted under regulation 7(1) of the 2003 Regulations when the investigations are complete, unless it is proposed to make an emergency application to a court. Proper consideration must be given to the question whether or not the Appellant's registration as a child minder should be varied or cancelled and it may not be in her interests for a decision to be taken in too much of a hurry. We point out that it may become open to OFSTED to conclude that there was insufficient evidence to justify a finding that the Appellant had left JA alone and to lift the suspension while continuing to investigate other matters before deciding whether there are other grounds upon which the registration might be varied or cancelled.
Mark Rowland
Marilyn Adolphe
Linda Redford
Signed by the chairman on this 28th day of November 2003