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Cite as: [2002] EWCST 94(EY)

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Hayward & Anor v National Assembly of Wales [2002] EWCST 94(EY) (21 February 2003)

Irene and Frank Hayward v National Assembly of Wales
[2002] 93 &94.EY

Thursday 12^th December 2002
Reviewed 11^th February 2003

Maureen Roberts (Chairman)
Geraldine Matthison
Kenneth Coleman

DECISION

APPLICATION

Irene and Frank Hayward (‘the Applicants’) appeal under the Children Act 1989 Section 79M against the decision of the Care Standards Inspectorate for Wales (‘ the Respondents’) made on the 6^th August 2002 and communicated to the Applicants by a letter dated the 6^th August 2002. The decision of the Inspectorate being to uphold a Notice of Intention to cancel registration issued on the 31^st May 2002, canceling the Applicants registration as child minders.

The Appellants requested the Tribunal, pursuant to Regulation 7 (1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, (the Regulations) to determine their application on the papers submitted to the Tribunal by the parties. Accordingly, we considered all the papers on 12^th December 2002. We allowed the appeal.

On the.21^st January 2003 the Respondents requested that the Tribunal review its decision under Regulation 25 of the Regulations 2002 on the basis that there was an obvious error in the decision. The grounds were (a) that the Tribunal decided to make a determination without an oral hearing (b) that the Tribunal’s view of the appropriate discharge of the evidential burden was mistaken and (c) that the Tribunal had overlooked a significant piece of evidence.

The Chairman took the view that the application for review should not be refused under Regulation 25(3), and set the matter down for consideration of the full Tribunal under Regulation 25(4). This consideration of the application for review took place at the Cardiff Civil Justice Centre on the 11^th February 2003.

The Respondents were represented by Mr Rhodri Williams of Counsel instructed by Mr Michael Lubienski, Counsel for the Respondents. The Appellants did not attend but had written to explain their position.

Under Regulation 26(1), the Tribunal may, having reviewed all or part of a decision (a) set aside or vary the decision by certificate signed by the chairman …;and (b) substitute such other decision as it thinks fit or order a rehearing before the same or a differently constituted Tribunal

We heard legal submissions by the Respondents and have varied our original decision, by way of a certificate attached to this revised decision.

We note that the cancellation arises from an allegation of physical chastisement made by a child at the premises of the Applicants. The Applicants denied this allegation. There was therefore a material dispute on a matter of primary fact. It would have been more satisfactory to have had an oral hearing so that the Tribunal could have seen the witnesses and allowed the parties to test each others’ evidence through cross-examination and asked questions itself. We considered the Regulations on this point and conclude that where the Applicants have requested a paper hearing there is no power for the Tribunal to direct an oral hearing.

On review the Respondents argued that the Tribunal was wrong to make a determination without an oral hearing based on the request of the Appellants. They argued that the Tribunal has a discretion under Regulation 7 (1) to order an oral hearing and that this is further strengthened by Regulation 16 which allows witnesses to be summonsed to give oral evidence.

Regulation 22 provides that, ’The applicant has the right to give evidence at the hearing in person’. We were also directed to the remarks by Scott Baker J in Secretary of State for Health v C (2002) EWHC 1381 (Admin) about the difficulty of coming to a decision in a case such as this without the benefit of oral evidence. He said ‘Where there is, as in this case, such a stark dispute on the facts I regard it as extremely difficult verging on the impossible, for a Tribunal to resolve it on the papers’.

At the hearing on 12^th December 2002 we had read the draft of the President’s decision arising out of a directions hearing in B v Secretary of State for Health (2002) 51.PC on this point. [This decsiosn now appears on the CST website) In that case the Respondent argued that the Tribunal had the power to order an oral hearing. The Tribunal said ’We have no doubt that Mr Coppel (Counsel for the Respondent in the case) is correct when he submits that an oral hearing is the best way to deal with cases where there is a conflict of primary fact…. However the Tribunal is governed by the legislation that established it. [We interpose to state that in this case the governing legislation is the Children Act 1989 as amended by The Care Standards Act 2000 which conferred additional duties on the then Protection of Children Act Tribunal set up under s9 of The Protection of Children Act 1999] and the Regulations enacted as a result of the legislation (Protection of Children and Vulnerable Adults Regulations and Care Standards Tribunal Regulations 2002) . The Protection of Children Act 1999 s9 (3) states that Regulations may in particular include provision for ’the determination of appeals or issues…without a hearing in prescribed circumstances’. [The Regulations for hearing an appeal under s 79M of the 1989 Act are contained in Schedule 2 of the Regulations. Paragraph 5(1) of Schedule 2 states that ‘ As soon as the respondent has provided the information set out in paragraph 3, the Secretary must write to each party requesting that he send to the Secretary... the following information – (f) in the case of the applicant whether he wishes his case to be determined without a hearing].

The Tribunal in B went on to say ‘ We would expect there to be an express provision in the Regulations stating clearly and categorically that the decision on whether there is to be an oral hearing or a paper appeal is a decision of the Tribunal rather than a decision of the applicant. In the case of the Directions, Regulation 6(1) states ‘ if either party has requested that there shall be a preliminary hearing, or if the President or the nominated chairman considers that a preliminary hearing is necessary…’ Paragraph 9 (2) (b) is to the same effect " the President or the nominated chairman may direct that there shall be a preliminary hearing in relation to any proposed variation or further direction if he considers it appropriate or if a preliminary hearing has been requested by either party". If the Regulations expressly provide for the Tribunal to decide on an oral preliminary hearing it is in our view not simply an oversight that the Regulations do not provide for the Tribunal to decide on whether there should be an oral hearing when the applicant has elected for a paper appeal. They do not provide for this circumstance, in our view because there is no such power.’

We were reminded that we were not bound by this decision, and of the difficulty of deciding such issues without an oral hearing. It was also put to us that it would be unfair for the Appellant to have a power of veto over an oral hearing. However we agree with the view expressed in the decision in B and we do not accept that we have the power to order an oral hearing where the applicant has requested a paper appeal.

On Review, we were directed to the Court of Appeal judgment in Secretary of State v C, [2003] EWCA Civ 10, given on the 22^nd January 2003. This case concerned a man ‘C’ who was placed on the Consultancy Service Index (a list of persons considered unsuitable to work with children) after it was alleged by a young woman ‘S’ that C had raped her some 10 years previously when she was resident in a community home. It was also alleged that C had physically abused two of his step-children. The allegations were upheld by a disciplinary tribunal, which had summarily dismissed him. He had unsuccessfully claimed unfair dismissal. He was placed on the statutory list when the Protection of Children Act 1999 came into force.

The hearing before the Protection of Children Act Tribunal was an oral hearing. The complainant ‘S’ did not give evidence and this was explained on medical grounds. The applicant C also did not evidence and he gave no explanation of this decision. The Tribunal upheld C’s appeal and directed that his name be removed from the list. The Secretary of State appealed. One of his grounds of appeal was the failure of the Tribunal to draw an inference from C’s non-attendance at the Tribunal. In the High Court, Scott Baker J said that ‘it was at first sight surprising that in the light of the Secretary of State’s submissions to the Tribunal as to C’s absence, the Tribunal neither sought an explanation nor drew any adverse inference’. But he concluded that it was a matter of fact for the Tribunal whether such inferences should be drawn".

Latham LJ in the Court of Appeal said that in his view " the judge was wrong. The problem was that nowhere in the decision did the tribunal deal with the question of what if any inference it should have drawn from C’s absence and that of his witnesses. That absence was so surprising that it was an issue the tribunal needed to deal with expressly. Accordingly it had erred in law."

The facts in this matter are not similar to that in C. In this case, the Appellants have exercised their choice for a paper hearing. The Guidance, which may need to be amended, carries no warning that an adverse inference may be drawn from such a request. The Respondents submitted to us that by requesting a paper hearing the Appellants gain a tactical advantage. We asked the Appellants’ legal representative to indicate their reasons, if any, for asking for a paper hearing and he replied ‘Given the number of witnesses that were needed we took the view that it would have been both extremely difficult and extremely costly for our clients to be heard by way of an oral hearing’.

In the circumstances of this case, we do not think the Appellants requested a paper appeal in order to gain a tactical advantage and it would not be right to draw an adverse inference from the Appellants’ choice of a paper appeal.

FACTS

The material facts found by the Tribunal were as follows

Mrs. Hayward has been looking after children for over 20 years and has been registered for 15 years. Mr. Hayward, her husband, has been registered for a similar period.
The most recent Certificate of Registration (4^th April 2001) permits the Appellants to look after ‘No more than 6 (six) children under the age of 8 (eight) years are to be minded and no more than 6 (six) children under the age of 5 (five) years can be minded when two registered persons are present.
The decision to cancel arises as a result of an investigation into a complaint of a child aged 10 (the complainant), who is the brother of one of the children being child minded by the Appellants, that his head was pushed against a wall twice and that he was slapped by Mrs. Hayward. The incident occurred on Friday the 5^th April 2002. The complainant has a mild learning disability and ADHD. There are no direct statements from the children at the premises on the date except for a statement from a WPC from the Child Protection Unit who saw the complainant on 8^th April 2002. He demonstrated to the WPC how the Applicant had pushed his head.
It was agreed that the complainant had tried to put a truck down a children’s slide the week before and had been told off because it was dangerous. On the 5^th April he had encouraged another 10-year-old boy to do the same thing. Mrs. Hayward had seen this and came out to tell the complainant off. She says that the complainant was not looking at her or paying attention and that she touched his forehead with the side of her hand or finger in order to get him to look at her. She said that the complainant jerked his head backwards but denies that he hit his head on the wall behind him. The complainant then says that the Applicant went into the house to fetch spoons from the kitchen and that when she came out she slapped his head and told him he was disgusting. The Applicant adamantly denies that this happened.
Mrs. Hayward says that later in the day she heard and saw the complainant demonstrating to other children how his head had been pushed against the wall. She says that as there was no injury and that the complainant behaved normally she did not record the incident.
Following the complaint the inspectors made an unannounced visit to the premises on 10^th April 2002. They interviewed Mrs. Hayward alone, and made a record of her version of events of the 5^th April. They also checked her record keeping. There is an issue as to how the records are kept. It appears that Mr. and Mrs. Hayward keep a day diary or register that records which children are present and for which session of the day they attend. They also have NCMA photocopied register sheets, which are completed. The sheets the inspectors saw, for March and April up to the previous week, were completed. It was pointed out that two of the children that the Appellants look after were not recorded from the time they started. This fact was accepted by Mrs. Hayward at the time. Subsequently it was said that part of the register was missing and the Appellants stated that the missing register was not on the premises on the day of inspection because it was being used as part of the end of year accounting. It is not clear which register or diary was missing.
The inspectors contacted all the parents who placed children with the Appellants. The letters from five parents were strongly in support of the Appellants. The parent of the complainant, and her friend who had picked up and looked after the complainant on the 5^th April, both made allegations of insufficient supervision.
We were informed of a previous incident in 2000 alleging physical chastisement. We were not given any details of what was alleged. We saw the letter that was sent at the end of the investigation, which stated that no further action was to be taken on the issue. It did draw Mrs. Hayward’s attention to the ‘No smacking Agreement’, which she had signed, and reiterated that physical chastisement was not permitted.

On Review it was put to us that the Tribunal, in stating in its reasons ’we were not given any details of what was alleged’ had overlooked a significant piece of evidence and that we had been given details of the previous allegation of physical chastisement. We were referred to parts of the Respondent’s and appellants’ bundles, together with the written submissions from the Respondent received at the original hearing. We confirm that we had read these documents. We accept that the reasons given by the Tribunal in this context contains an obvious error. We were told of a previous complaint in 2000.
However, having given the matter careful consideration, we remain firmly of the view that we were not given details of the circumstances of allegation or of any formal finding against Mrs. Hayward in respect of it. In relation to the 2000 incident, we were told by the Respondents that a child had alleged, inter alia , that Mrs. Hayward had hit him across the face, had hit him with a slipper, that children were hit when they refused to eat and that one child had dropped a baby. When questioned about the complaint, the Respondents said that Mrs. Hayward had said "that she might have threatened a child with a slipper, she did tap children on the hand, may place a hand on their head to turn it and may pat a child on the bottom for misbehaving". She also said that she uses "a good telling off and/or time out". By implication, she had made no admissions about hitting the child.
In a subsequent statement by the Appellants as part of their reply to the 2002 incident, the 2000 allegations of hitting the child across the face or with a slipper were expressly denied by them.
The letter to Mrs. Hayward on the conclusion of the investigation dated 27^th September 2000 said "The investigation into the allegations made against you has been concluded and I am now writing to inform you of the outcome. You are aware that, as part of the investigation parents of the children have been contacted and asked if they have any concerns regarding the quality of care which you are providing. To date we have received two replies both of which express confidence in you as a child minder. I can therefore confirm that the Child Protection matters have been concluded and there will be no further action taken under these procedures."
The letter then discussed the admissions as stated above and reminded Mrs Hayward of the No smacking Agreement: "It is the view of the authority that physical chastisement or behaviour which frightens or humiliates children should not be undertaken by child minders. The behaviour you describe is therefore unacceptable and must not continue".
The letter concluded: "The information regarding these matters will be held on our files and may be considered again in the light of any further concerns being expressed regarding the care you provide. It is, however noted that you have been a child minder for many years and that this is the first complaint we have received about your child minding service’.
We learnt from the Appellant’s papers that the complainant in 2000 concerned a boy of a similar age to the complainant in April 2002. We observe that neither child was under 8. We therefore noted that there had been a similar previous complaint. We concluded that physical chastisement had not been established in 2000 and that Mrs. Hayward was reminded of the standards expected of a child minder.
The Appellants had annual inspections throughout the period of registration without any adverse comment.
There was a formal hearing by the Inspectorate with each Appellant being interviewed separately on the 7^th May 2002. The Inspectorate then informed them on 31^st May 2002 of the intention to cancel. The Appellants appealed against the notice of intention to cancel and the Acting Regional Manager reviewed the case. She notified the Applicants, on 6^th August 2002, that their registration would be cancelled.

TRIBUNAL CONCLUSIONS AND REASONS

We carefully considered all of the papers submitted in this case

The Tribunal reasons are as follows:
The issue to be determined by the Tribunal in this case is whether to confirm the decision of the Inspectorate to cancel registration or allow the appeal and permit the Appellants’ registration to continue.
We have been referred to the Child Minding Day Care (Wales) Regulations 2002 and the ‘National Minimum Standards for Childminders’ issued by the Welsh Assembly Government under section 79C of the Children Act 1989. In particular we considered the provisions regarding the requirements to be ‘a suitable person’ (Minimum standard 12) and the Minimum standard 8 regarding behaviour. This latter states

‘8.3 The childminder creates an environment that encourages acceptable behaviour.

8.4 The childminder has consistent expectations about acceptable behaviour

8.5 The childminder applies sanctions in the case of unacceptable behaviour which take account of the age and understanding of the child,are given at the time, are relevant to the behaviour, and are seen to be fair….

8.7 Children are never shaken

8.8 Children are never smacked

8.9 Children are never shouted at or intimidated

8.10 Children are never humiliated or shamed

8.11 The childminder does not use any form of physical restraint unless it is necessary to prevent personal injury to the child or other children or adults, or serious damage to property. Any significant event is recorded and the parent informed of the incident on the day that it occurred.’

The Regulations and the Minimum Standards came into force on the 1^st April 2002.
The burden of proof. In our decision dated 12^th December 2002, we stated that "Section 4 of the Protection of Children Act 1999 places the burden of proof on the Respondent. We approach an analysis of the evidence therefore bearing in mind that it is the Respondent whom must discharge the burden".
On review it was pointed out that the reference to s 4 of the Protection of Children Act 1999 is incorrect. We accept that this is so and that there is an obvious error in the decision. Any references therefore should be to the Children Act 1989 as amended by the Care Standards Act 2000. S79M of The Children Act 1989 provides that an appeal shall lie to the Tribunal. On appeal the Tribunal may –
1. Confirm the taking of the step or the making of the order of direct that it shall not have, or cease to have effect and
2. Impose, vary or cancel any condition.’
It was accepted by Mr. Williams, on behalf of the Respondents that the burden of proof in such cases rests on the Respondents.
The Standard of Proof. Mr. Williams argued that we had applied the wrong standard of proof in this case. In his submission, he stated that the correct approach of the Tribunal is to decide whether the decision of the Respondents is reasonable. He said: ‘Has the appellant shown that the decision of the registration authority was plainly wrong or that it was a decision which the registration authority could not reasonably have come to on the evidence which was available to them.’ We were referred to the case of Re S (Sexual Abuse Allegations: Local Authority Response) (2001) EWHC Admin 334. [2001] 2FLR 776. This was a judicial review of the exercise of the local authority’s powers under s 47 of the Children Act 1989. The claimant, a consultant gynaecologist, had been acquitted of sexual abuse of a daughter of a former partner. When subsequently he formed a relationship with a former patient and intended to set up house with her, his own children and her children, two girls aged 7 and 11, the Local Authority under s 47 of the Children Act 1989 proposed to assess any risk to the partner’s daughters. The Local Authority determined that the original allegations were highly credible and that there was a medium and high risk of sexual abuse to children unrelated to him and living in the same house. It was held by Scott Baker J that "Each of the defendants (local authorities) acted lawfully in the assessment of risk. They were not required to make a finding on the balance of probabilities as to past conduct before assessing risk and taking any necessary protective steps. The risk conclusions set out in the respective decision letters were not perverse and all the defendants actions fell within a range of responses open to a reasonable decision maker". In the course of his judgment Scott Baker J said" In my judgment the need to establish facts on the balance of probability has no place in the exercise by a local authority of its various protective responsibilities under the Children Act 1989. Re H (minors), (which was relied on by the claimants’ Counsel) was concerned with the court’s power to make care or supervision orders under s31 of the Children Act 1989. It is at this point in the child protection process that evidence has to be weighed and evaluated and decisions made as to what is proved and what is not. Decisions made earlier in the process have to be made in accordance with the power conferred by the section under which the authority is acting, and in the present case the critical question is whether the authority have reasonable cause to suspect a child is likely to suffer significant harm".
Earlier in his judgment, Scott Baker J noted that " orders available short of the full care order are triggered by reasonable grounds for belief rather than proof on balance of probability. Only when one comes to the full care order under s31 does one find that allegations of maltreatment have to be proved on a balance of probability".
In Re H (Minors) (Sexual abuse: standard of proof) (1996) AC563 Lord Nicholls also pointed to the difference in statutory language when dealing with the early stages in the procedures which may culminate in a care order. He said "The earlier stages are concerned with preliminary or interim steps or orders. Reasonable cause to believe or suspect provides the test.. but when the stage is reached of making a care order, Parliament prescribed a different and higher test: a court may only make a care or supervision order if it is satisfied ..that ..the child.. is suffering or is likely to suffer significant harm. This is the language of proof, not suspicion. At this stage more is required than suspicion, however reasonably based’.
We were directed to the statutory grounds for taking a decision to cancel by the Respondents. The Children Act 1989 as amended provides that the Registration Authority may "cancel the registration of a person if the authority is of the opinion that the person has ceased or will cease to be qualified for registration for child minding" (s 79G). In turn "a person is qualified for registration for child minding if – he and every other person looking after children on any premises on which he is or is likely to be child minding is suitable to look after children under the age of eight" (s 79B (3) (a)).
The Registration Authority, In issuing a notice of intention to cancel and in the cancellation, is stating that the appellants are unsuitable to be child minders. Whilst we accept that the standard of proof for a local authority under s 47 of The Children Act 1989 is as stated in the case of Re S, we do not accept that this is the correct standard when the Respondents are exercising an inspecting and regulatory function which may lead, as in this case, to the cancellation of registration, following allegations of physical chastisement. In any event, we conclude that the Tribunal, on appeal, has the power to consider all the evidence presented to it and to make findings in respect of the facts, on the civil standard of proof namely the balance of probability.
In Re H and ors (1996) AC Lord Nicholls stated:
‘ Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability…The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case , that the more serious the allegation the less likely it is that the event occurred and, hence the stronger should be the evidence before the court concludes that the allegation is established an the balance of probability…the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred’
We apply this authority to the issues before us in this case.
The allegation of physical chastisement. On the day in question, the complainant was picked up from the Appellants (together with his sister aged 4.5) by a neighbour (Mrs. S), a friend of the complainant’s mother (Mrs. R). The complainant told Mrs. S that ‘Auntie Irene (Mrs. Hayward) had hit him. He said she had pushed his head back twice against the wall and hit him across the head’ She asked her son aged 5 about it and he repeated what the complainant had said. Subsequently, the complainant’s sister aged 4.5, told his mother, Mrs. R, who then asked the complainant to tell her what had happened. He repeated what he had said to Mrs. S. We were concerned that Mrs. S, who picked up the children, said nothing to the mother of the complainant. No one appears to have examined the complainant for any injuries and we conclude that there were none. The police, while they took a short statement from the complainant, took no further action and only typed up the statement in November 2002 in readiness for the Tribunal hearing.
We note that in this statement the complainant makes a number of additional allegations: that another child was mistreated; that she (Mrs. Hayward) made him eat food he didn’t like and used dirty spoons; that a room in the house was full of flies and he seemed disgusted that the Appellant touched his food with her hands. None of these allegations were investigated or repeated by any other child or adult witness.
With hindsight, Mrs. Hayward should have recorded the incident and informed Mrs. R, the complainant’s mother, and this omission is an error of judgment. There is no independent adult witness to the incident. The children who repeat the allegations are 3.5,4.5 and 5 and it is not clear whether they were present when Mrs. Hayward told the complainant off. Further, their evidence is compromised by the fact that the complainant demonstrated to others what he said happened, later in the day.
The Tribunal takes the issue of physical chastisement very seriously. The Minimum Standards of the Welsh assembly are correct and proper. This is a very serious allegation and the burden of proof is on the Respondents to satisfy us. We accept that an incident occurred. However on the evidence before us, we have decided that the Respondent has not discharged the burden of proof on this issue. We do not accept that the Applicant hit the complainant’s head against the wall or that she hit or slapped him later.
Failure to keep proper records. The evidence as to which records were available and what was incomplete or missing is not clear. We accept that there may have been an infringement of the record keeping requirements but this in itself is not sufficient to cancel registration.
Inadequate supervision. We noted that these allegations were made after the investigation was commenced. The two complaints were by Mrs. R and Mrs. S. Mrs. R in her statement said: ’ before this incident I had no cause for concern’ and then went on to say ‘that on reflection there were circumstances that led me to believe that perhaps things were not alright’. The Tribunal was concerned that all complaints and issues were raised after the incident of the 5^th April 2002. We also weighed these complaints against the strong letters of support from the remaining parents, some of whom had childcare or teaching qualifications and had entrusted very young children to the care of Mr. and Mrs. Hayward for many years. They had no complaints about the level of supervision
As we are allowing the appeal we do not have to make a separate determination in respect of each Appellant. However we note that no complaints were made directly against Mr. Hayward. While we realize that the Inspecting Authority have a difficult decision in such circumstances of joint childminders, we consider it right to record that there were no substantive grounds of complaint against Mr. Hayward.

The decision of the Tribunal is to allow the appeal of the Appellants to continue to be registered for child minding

The decision of the Tribunal and its reviewed decision was unanimous

MAUREEN ROBERTS (Chairman)
GERALDINE MATTHISON
KENNETH COLEMAN

Dated this 12th day of December 2002
Reviewed 11^th February 2003

CERTIFICATE SIGNED BY THE CHAIRMAN UNDER REGULATION 26(1)(a).

I hereby certify that the Tribunal, having reviewed its decision dated 12^th December 2002 has varied its reasons for that decision and substituted the reasons for the decision as set out above.

Signed and dated this 21^st day of February 2003
Maureen Roberts (nominated Chairman)

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