England and Wales Care Standards Tribunal

Oakes v Office for Standards and Education [2003] EWCST 0226(EY) (7 April 2004)

DECISION

Mrs Christine Oakes (Appellant)

V

Office for Standards and Education (Respondent)

Application No: [2003] 0226.EY

BEFORE

Mr S A Hunter (Chairman)

Mr J Black

Mr J Churchill

On 16^th and 17^th March 2004.

APPEAL

The Appellant appeals under Part XA of the Children Act 1989 as inserted by Section 79M of the Care Standard Act 2000 against the decision by the Office for Standards in Education ("OFSTED") to cancel her registration as a childminder.

PRELIMINARY MATTERS

(a) The Tribunal made an Order pursuant to Regulation 18 (1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting the publication (including by electronic means) in a written publication available to the public, or inclusion in any programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child in these proceedings.

REPRESENTATION

The Appellant was represented by Mr Y Rahman of Counsel, instructed by Davis Wallis Foyst, and the Respondent was represented by Mr J Jackson of Walker Morris, solicitors.

FACTS

1. The Appellant is a married woman with three children of her own aged 19,16 and 12. The Appellant became a registered childminder in 1994, since then she states that she has cared for approximately 23 children from approximately 14 different families, including 6 or 7 who have been under 12 months. The Appellant produced a number of testimonials supporting her as an individual, and her work as a childminder.
2. As a registered childminder the Appellant has been inspected annually, initially by her local authority and since becoming the responsibility of OFSTED, by their inspectors. This included a transitional inspection carried out by the Respondents, details of which were contained within the papers submitted to the Tribunal. Those documents indicated that the inspector carrying out the inspection, had discussed with the Appellant the National Standards for under 8's day care and childminding. At the time of the transitional inspection, the Appellant did not have any children on her register. The Appellant told the Tribunal that she has subsequently received a copy of the National Standards through the post, at the time she had not regarded these as something that you was "religiously required to follow", she was now more aware of the importance of those standards.
3. The Appellant was registered as a childminder to care for a maximum of five children under the age of 8 years of which no more than three should be under 5 years, of which only one might be under 1 year of age. At the time of the Tribunal hearing, the Appellant was caring for three children, one aged 3 months, another aged 4 months, and a third aged 10 years.
4. The Appellant also runs a mother and toddler group at her local church hall on Mondays and Tuesdays from 9:30am until 11:30am, which she has been doing for the last 10 years. The Applicant is also an assistant guider and runs a Rainbow group for children between the ages of 5 and 7, as well as helping at children's liturgy and confirmation classes at her local church.
5. In or about May of 2003, the Respondents received an anonymous complaint against the Appellant, the complainant apparently being someone who attended the mother and toddler group. It had been alleged that the Appellant was in the regular habit of leaving two babies under 1 year old, in her car outside the church hall (where the mother and toddler group was held) for up to an hour. The car was said not to have been visible from the church hall. There had been an occasion the complainant stated, that when leaving the mother and toddler group, she had heard a baby crying. She had approached the car and had taken the baby out of the car. The baby was said to have been very hot, and the heat of the car had hit the complainant as she opened the door. The complainant had approached the Appellant about this, who is alleged to have said that she was coming out anyway and had seemed abrupt.
6. The Respondents allocated the complaint to one of their team managers, Julie Elliott. She in turn asked two of the Respondent's inspectors, to arrange an unannounced visit to see the applicant. This took place on 29^th May 2003. The interview was conducted by Jacqueline West, with notes being taken by Lynn Pope. In her witness statement, Jacqueline West indicated that her qualifications were a Nursery Nursing Examination Board certificate, and an advanced diploma in child care and education. She had worked at a family centre for social services for seven years as a nursery officer and latterly as a senior nursing officer. As part of this work she has had a year's secondment at a Local Authority Registration and Inspection Unit, involved with the regulation of childminders and nursery provision. Lynn Pope indicated that before working for OFSTED, she had worked in a primary school for 5 years and after that as a deputy manager at a Day Nursery. She had worked for 2years for a local authority in their Registration and Inspection Unit and then transferred to OFSTED in September 2001.
7. At the time of the visit on 29^th May 2003 both Ms West and Ms Pope reported that there were no children present. Ms West told the Tribunal, that initially the Appellant was unable to say how many children her registration certificate allowed her to look after. However, the Appellant was able to locate the certificate and confirmed the numbers. The Appellant was then asked how many children she was caring for at that time. Ms West said that she replied by saying, one child of age 6 months, a 3 year old and a 10 year old. The Appellant then produced her register, which showed that she had cared for twins under 1 year, from October 2002 for 7 months, and was now caring for two babies aged 6 months and had been doing so for 4 weeks.
8. In her witness statement Ms West suggested that the Appellant's responses to, how many children she was looking after, were misleading. However, at the Tribunal hearing, Ms West accepted that she had not suggested to her team leader that the Appellant had in fact been misleading. Ms Pope told the Tribunal that in her view the Appellant had not try to mislead her and Ms West.
9. Ms West discussed with the Appellant the complaint that had been made. The Appellant was said to have admitted leaving the two babies in her car whilst they were sleeping, for up to an hour outside her home. Ms West told the Tribunal that her role at this meeting was to investigate and gain information but not to advise, consequently the Appellant had not been told at that point, to stop leaving children in the car. Although Ms West had stated in her witness statement that there had been some discussion about leaving the children in the car outside the church hall, at the Tribunal hearing she said that this had not been discussed on the first visit. The second part of the complaint was that the Appellant was alleged to have been seen feeding a child at the church hall using a dirty bowl, and licking a spoon before feeding one of the babies. The Appellant was said to have denied that the bowl was dirty, but that she possibly could have licked the spoon, and acknowledged that this raised concerns about hygiene. Ms Pope said that the Appellant had been told at the meeting, that she should not lick spoons before feeding the babies. Ms Pope said that those parts of the Appellants premises that she and Ms West had seen, appeared to be clean and tidy and in a hygienic condition.

After the visit was concluded, Ms West and Ms Pope then reported back to their team manager, Julie Elliott. Ms Pope's notes of the first meeting were recorded on the Respondent's computer system. The two inspectors were asked to make another visit to discuss matters further. Ms Elliott prepared a series of questions for the inspectors to put to the Appellant. Ms West contacted the Appellant on 30^th May 2003 to arrange an appointment for a second visit on 2^nd June 2003. In her witness statement Ms West said that during that telephone conversation the Appellant was informed that she would have to make alternative arrangements for one of the babies.

On the second visit Ms West stated that she asked the Appellant whether or not she had a copy of the National Standards, that the Appellant had replied that she did, but was then unable to locate them. A discussion then followed regarding the Appellant leaving children in her car at the mother and toddler group on Mondays and Tuesdays. The Appellant was said to have accepted that she had left the children in the car whilst they were sleeping, but that she was in and out of the hall to check on them, and that other parents at the hall also checked on them, and informed her if they were awake. Ms West confirmed that by the time of her second visit the Appellant had accepted the seriousness of leaving children in the car and that this had now stopped.

Ms West said that after the conclusion of the second visit the official interview notes were completed and the matter reported back to Ms Elliott. It was not the role of Ms West or Ms Pope to make recommendations as to what action the Respondent should take, it was their job simply to carry out the investigation.

10. The Tribunal heard from Mr Fergus Currie, the Respondent's area manager based in Leeds. He had become aware of the complaint, in this case at the time it became allocated to the team manager. He had no input into the investigation, this was left to the team manager, Julie Elliott and the appointed inspectors. Mr Currie had discussed the case with Julie Elliott on 30^th May 2003, following the initial visit by Ms West and Ms Pope. He asked for some additional information to be collected regarding the Appellants awareness of the National Standards, and the allegations about her leaving babies in the car outside the church hall. The further visit on 2^nd June 2003 then took place. Mr Currie subsequently had further discussions with Julie Elliott, including receiving an e-mail from Julie Elliott dated 5^th June 2003, a copy of which was produced to the Tribunal. The final paragraph of that e-mail from Julie Elliott contained the following sentence:-

"I will endorse the child care inspectors recommendation that Mrs Oaks is sent a notice to cancel her registration. Mr Currie did not have any direct contact with either Ms West or Ms Pope. After some discussion with his divisional manager, Mr Currie then reached the decision that the Appellant's registration should be cancelled. He told the Tribunal that this was not a step that he had taken lightly, this was a case, in his view where children had been placed a risk, particularly by leaving the babies unattended in an unlocked car. Although perhaps not of the same magnitude, Mr Currie said that he would not disregard the breach of hygiene admitted by the Appellant, but saw it as being one of the factors that needed to be taken into consideration. In terms of breaching the terms of her registration, Mr Currie accepted that it was likely that in the case of the twins under 12 months of age, that permission would have been given by the Respondents but no application for a variation had been made by the applicant. Mr Currie was not satisfied that the applicant had a full understanding of the need to follow the National Standards or a full understanding of the potential risk to children, particularly leaving them in an unattended car. He indicated in his witness statement, that not only had the Appellant in his view, breached specific conditions of her registration on two occasions, but she had attempted to mislead the Respondent's inspectors. He expressed surprise at the hearing, to be told that in evidence, neither Ms West or Ms Pope were asserting that they had been deliberately mislead by the Appellant.

11. A letter was sent by the Respondents to the Appellant dated 5^th June 2003, giving notice of intention to cancel her registration, and setting out the breaches of the National Standards. The letter indicated that if the Appellant objected to OFSTED's intention, then she was able to object. The Appellant did so object, and an objections panel meeting was held on 4^th August 2003. The panel comprised of Marie McGuiness CIE manager (North West Region), Belinda Hinsley senior I.O CIE (Y and NE) and Mr Currie, there was also a note-taker present Ms Lynda Greenwood. Ms Andrea Barker attended with the Appellant. After the meeting the Appellant was sent a document which was said to comprise the minutes of the hearing and the deliberation of the panel. Those notes indicated that the meeting had started at 10am and Ms Hinsley and Ms Greenwood had not arrived at the meeting until 10:30am. Mr Currie told the Tribunal that by the time Ms Hinsley arrived, the panel had completed their discussions with the Appellant about children being left in her car. The minutes record the Appellant as accepting the breaches of the National Standards, but gave an explanation as to how these had happened. Mr Currie told the Tribunal that the panel had not been satisfied by the Applicants answers, as they were expecting her to be remorseful about what had happened, and have an understanding of the risks to the children involved. Whereas, in his view the Appellant had merely provided explanations as to what lay behind her breaches. The decision of the panel was to uphold the decision to cancel the Appellants application as a childminder.
12. The Appellant then appealed to this Tribunal. In her grounds of appeal she contended that the cancellation of a registration should be regarded as a final remedy, reserved for the most serious breaches, where it is thought that no other disposal, whether by way of conditional order, or otherwise would be appropriate. The Appellant submitted that no adequate account had been taken, of her experience and commitment to childcare, her co-operation and honesty throughout the investigation, the steps taken by her to address the concerns raised, including the arrangement of appropriate further training, the circumstances surrounding the breaches, and the absence of any dishonesty. Further that no adequate consideration had been given to the risk of any further breaches occurring.
13. The Appellant admitted breaches of her certificate of registration, by having looked after more than one child under 12 months. This included looking after twins between October 2002 and April 2003, (a period of 7 months). This had only come to light as a result of the visit by Ms West and Ms Pope on 29^th May 2003 when they had inspected the Appellant's register. The Appellant accepted that this was outside her certificate, but said that she had understood that no authority would require siblings to be separated.

In or about April 2003 the Appellant began caring for two unrelated children under 12 months of age namely child "A", born In December 2002 and CHILD "B", also born in December 2002. The Tribunal heard from the mother's of both children, Ms G C and Ms S L, they are both teachers at the same secondary school. The Appellant was known to Mrs C, as the Appellant had looked after her older daughter, child "C". Ms L gave evidence to the effect that the Appellant, having become aware of Ms L's pregnancy through Ms C had suggested that she could look after child "B" as well as looking after child "A". A meeting had then taken place between herself, Mrs C and the Appellant. During the course of that meeting, Ms L alleged that the Appellant had said words to the effect "technically I should not be looking after two babies", the Appellant had then produced her registration certificate, her home and car insurance. During the same interview, Ms L told the Tribunal that the Appellant had said that if inspectors from the Respondents visited then Ms L would have to remove child "B" for the day. Ms L said that she knew that this was a bit "dodgy" but felt that she had no choice but to go along with this, because otherwise she would be left without any childcare cover. Ms L had the feeling that if there was a problem then child "B" would be the baby which would have to move rather than child "A", although she did not recall this being said specifically.

Ms C told the Tribunal that it was her suggestion that the Appellant should look after both child "B" and child "A". The Appellant had not been enthusiastic, but was aware that Ms L had difficulties in finding support for her baby from within her own family. The Appellant had said at the meeting with Mrs C and Ms L, that she would give it a try, but if it did not work priority would be given to child "A". Mrs C also confirmed that the Appellant had said that if the Respondent carried out an inspection visit, one baby would have to be taken away.

14. The Appellant gave evidence to the Tribunal, that it had not been her suggestion that she should look after child "B" and child "A". This came about as a result of a request from the children's parents. The Appellant accepted Ms L's version of the meeting between herself and Mrs C, save that it had not been her suggestion that it would be necessary to remove one of the children should the Respondents' inspectors visit, but she accepted this had been discussed. The Appellant had been flattered that the parents thought that she was able to cope with two babies. The Appellant had known that she was in breach of her registration, and that she should have applied for a variation. She had however recorded both the twins and child "B" and child "A2 in her register as being minded by her. She had not sought to mislead the inspectors when they had visited on 29^th May and 2^nd June 2003.
15. In relation to the breach of National Standards 7 regarding health, the Appellant admitted that possibly on one occasion she had licked a spoon which was then used to feed one of the babies. The Appellant told the Tribunal that she had not repeated this since the inspectors first visit on 29^th May 2003, furthermore she had since successfully completed a programme of training organised by the Chartered Institute and Environmental Health and had been awarded a Foundation Certificate in Food Hygiene.

Ms L in her witness statement and in her oral evidence indicated that there had been other breaches of good hygiene practices by the Appellant. She gave as an example bottles of milk not being placed in the fridge, but left on the floor in the dining room. Ms L said that she had not raised these issues with the Appellant at the time, as she felt that that Appellant would challenge what she said. Ms L accepted that the children being looked after by the Appellant seemed healthy, Ms L had at one time requested that child "B" be given an extra bottle during the day and this had been carried out by the Appellant. Mrs C in her evidence said that she had no concerns regarding the Appellant's hygiene. The inspectors (apart from the incident regarding the spoon) also confirmed that they had no additional concerns. The inspectors notes made at the time of the transitional visit regarding the physical environment had stated "a high standard of hygiene is evident throughout the home". The Appellant herself denied Ms L's assertion about bottles being left out of the fridge.

16. The Respondents alleged a breach of National Standard 6 regarding safety, namely that the Appellant had left two children asleep unattended in her motor vehicle whilst it was parked in a church hall car park and also outside the Appellant's home.

The Appellant admitted that she had taken babies in her car to the mother and toddler group at the church hall on Monday and Tuesday mornings. If the children were asleep when she arrived she liked to keep them happy and did not wish to disturb their sleep pattern. She accepted, when asked at the Tribunal hearing, that there was no reason why the children could not have been taken out of the car into the church hall. The Appellant said that the children could be left for up to 1 hour, although it might only be for a few minutes. During this time the Appellant was opening the church hall and putting out the play equipment, as well as engaging with others in the group. However, she continued to check the car on a regular basis, if she could not go out for any reason then there were other parents who were coming in and out who would check. The Appellant told the Tribunal that there were two doors to the church hall, an external door and an interior clear glass door. In the summer the outside doors was always left open, but there might be occasions in the winter when the door was closed and the babies would then not be in sight and sound of the Appellant. It was also accepted by the Appellant, that it had not only been child "B" and child "A" who had been left in the car outside the church hall asleep, but also at an earlier stage the twins. The Appellant again confirmed that she was always going out to check on the twins.

Both Mrs C an Ms L said that they were aware of the Appellant's practice of leaving their children outside the church hall in her car whilst they were asleep. Mrs C in her witness statement said that this was not a practice that she adopted herself, nor one that she would confess to being 100% comfortable with, but she had not objected to the Appellant. At no time had Mrs C felt that her daughter was in any danger. She was aware that the Appellant had now stopped the practice of leaving the children asleep in the car outside the church hall. She was unable to say how many times her daughter might have been left in the car in those circumstances.

The Appellant told the Tribunal that once every 6 weeks she cleaned the church again if the babies were asleep, they would be left in the car. Ms L accepted that she had been told her son had been left in the car outside the church, and that she had not expressed any concern to the Appellant about this at the time. The Appellant accepted that on these occasions she could not herself necessarily see the children, but her mother who was cleaning with her, would have been able to see them.

Child "B's" father, Mr W did not give oral evidence to the Tribunal hearing, but a witness statement was submitted from him, in which he stated that on 23^rd May 2003, he had arrived early in the afternoon at the Appellant's house to collect child "B" and found both his son and child "A" asleep in the Appellant's car outside in the street. He did not believe that the car was being closely surveyed by the Appellant. The Appellant gave evidence that she had only just arrived back home from the shops, and had gone into the house with some of the shopping. The Tribunal were told that the Appellant had stopped the practice of leaving the babies asleep in the car when the car was unattended, after the Respondents' inspectors had raised this issue with her. Moreover she had enrolled on a course in health and safety.

17. The Tribunal heard from Dr Kathryn Ward,a Consultant Paediatrician at Airdale General Hospital. She had been asked to prepare a report by the Respondents' solicitors who had set out their instructions in a letter dated 4^th December 2003. Dr Ward indicated that she regularly examined children who had been abused or in whom there had been a suspicion of abuse. She was a member of two Area Child Protection committees. She was also the vice-chair of North Yorkshire area Child Protection Committee, as well as the designated doctor in Child Protection to North Yorkshire PCT's. She had been particularly asked to give evidence in this case regarding possible physical and emotional affects upon a child under 6 months being left up to an hour in a motor vehicle on a regular basis. In he oral evidence she accepted that parents did leave children momentarily in cars in certain circumstances, for example when they were unpacking shopping. However she did have several concerns about children being left in cars.

Firstly an unattended car could be stolen with the children inside, or could be broken into and the children removed. Secondly the vehicle could be involved in an accident, and thirdly the interior of a stationery car could become excessively hot.

It was important in Dr Ward's view for a carer to return to a car within a few minutes.

It was important for babies in terms of the attachment to their carers for those carers to reach to them quickly otherwise there was a danger of the child becoming stressed. This was a particular concern for babies and infants. There were different risks for older children.

18. The Appellant gave evidence to the Tribunal that with hindsight she realised that she should not have left the children asleep in the car unattended. She had not done this for any selfish reason, but in the interest of maintaining the children's sleep pattern. She had now changed her procedure. The Appellant had taken on board what Dr Ward had said, but she had not believed that the children would come to any harm.
19. The Appellant had not regarded the National Standards as something that had to be religiously followed. She was now more aware of the need to follow the National Standards. She had not considered what implications there might be for her insurance if she was in breach of the conditions of her registration certificate. If her registration was cancelled, that did not give her an opportunity to put things right. She was willing to do any other training that was felt to be necessary. She had now stopped leaving the children in the car unattended. She did however continued to be involved with the mother and toddler group and did not see that as a conflict with her role as a childminder.
20. As well as those witnesses who gave oral evidence, the Tribunal also had the benefit of witness statements from A B, W W and Sarah Banejee who were not called to give oral evidence. Ms W and Ms B had both had children who had been looked after by the Appellant and were in support of the Appellant's appeal. Ms Banejee had been asked by the Respondents to take photographs of St Cecilia's and St Patrick's Roman Catholic Churches.

TRIBUNAL CONCLUSIONS

21. In essence there were three allegations made by the Respondent's against the Appellant arising from breaches of her certificate of registration and the National Standards. The Appellant admitted having two children under the age of 12 months, when she was only permitted by the terms of her registration certificate to have one child. The admission was made in respect of both the twins and the children "A" and "B". In both cases we are satisfied that the Appellant knew that she should have applied for a variation to the terms of her registration certificate and chose not to. In respect of the children "A" and "B", we accept that there was collusion between the Appellant, Ms L and Mrs C which sought to mislead OFSTED, by agreeing that one of the children would need to be removed from the Appellant's home, should the Respondent make an unannounced visit.

The breach of health and hygiene is also admitted, in that the Appellant agreed that she possibly had licked a spoon before feeding a baby. As regards Ms L's assertion regarding bottles being left out of the fridge, this was not mentioned by Ms L to the Appellant at the time, the allegation was not supported by Mrs C and we are therefore not convinced that this was the case. In relation to the babies being left unattended in the car, again the breaches were accepted by the Appellant namely that the babies were left in the car outside the church hall for up to an hour, outside the church and outside the Appellant's home. We consider this to have been a regular practice which had been carried on for some time. On the Appellant's own admission there were occasions when the children would have been out of her sight and sound.

22. The complaint against the Appellant came from an anonymous source. We have a number of concerns in the way in which the Respondent then carried out their investigation into that complaint.

Firstly it appears to us that the inspectors, Ms West and Ms Pope, lacked sufficient experience and/or training in the obtaining and assessment of evidence. They also appeared unclear as to their role, for example in whether they were able to advice the Appellant that certain practices were in breach of the National Standards and that they should cease immediately. There was also confusion about their role in making recommendations as to future action that the Respondents might take in relation to the Appellant's breaches. In evidence to the Tribunal the inspectors indicated that they had no part to play in making such recommendations and that these were taken at a higher level. This seemed to be in conflict with a subsequent email produced to the Tribunal during the course of the hearing, dated 5^th June 2003 from Julie Elliott to Fergus Currie. In that email Ms Elliott indicated that she endorsed the child care inspectors recommendations that the Appellant should be sent a notice cancelling her registration.

23. Mr Currie was the person who made the initial decision to cancel the Appellant's registration, yet he had not been in direct contact either with the Appellant herself, or more importantly either of the inspectors who had carried out the investigation. Mr Currie relied on information transmitted through an intermediary namely Julie Elliott, a witness from whom the Tribunal did not hear. Mr Currie then made a decision to cancel the Appellant's registration following a consultation with his Divisional Manager.
24. The Appellant objected to the Notice of Intention to cancel her registration and an objection panel was held on 4^th August 2003. Again, we have a number of concerns about the way in which that meeting was conducted, particularly in the context of natural justice. In particular because Mr Currie (the person who had ultimately taken the decision to cancel the registration) was a member of the panel who were considering the Appellant's objections. Secondly we consider it entirely inappropriate for a meeting to commence without all members being present from the outset, then to admit a member part way through the hearing, in circumstances where a very important discussion on one of the breaches had already been concluded. We consider there is a need for the Respondent's to look again at their practices and procedures.

We do of course accept that appeal to this Tribunal is by way of re-hearing and not a review of the Respondent's decision.

25. The number of children that the Appellant was registered was clearly stated in her registration certificate. The Appellant had been the subject of a transitional inspection (the documents relating to which, we have seen). It is clear from those documents that at that inspection the National Standards were discussed with the Appellant. The Appellant accepts that she was subsequently sent a copy of those Standards. They make it clear that they represent "a base line of quality below which no provider may fall".
26. We take into account the fact that the Appellant has been a childminder for 10 years, looked after 23 children and that prior to the complaint in this case, there had been no other complaint. Also that following the present complaint the Appellant has been forthcoming in admitting breaches and co-operating with the investigation. The Appellant has been on a food hygiene course and is booked to attend the health and safety course. We accept that the Appellant has ceased the unhygienic practice to which the Respondents referred, and that she no longer leaves babies unattended in her car, and indeed presently has no children under 12 months in any event. We also take account of the testimonials submitted, which speak of the Appellant's commitment to the children in her care, Mrs C's supportive comments and those of Mrs B and Mrs W.
27. However, National Standards are intended to be followed. The Appellant has admitted to breaches of those Standards. In regard to the breach of hygiene we accept that that in itself this would probably not be sufficient to warrant cancelling the Appellant's registration. It does however in our view need to be seen in the context of the additional breach of the National Standards, by leaving babies unattended in her car. Standard 6.17 makes it clear that children should not be left unattended on outings or in a vehicle. We accept the evidence of Dr Ward about the serious consequences that could ensue from such a practice, particularly the emotion and physical harm that could be occasioned. At the same time noting Dr Ward's acknowledgment that there might be occasions when a child could be left in a car for a few minutes whilst, for example shopping was being unloaded, but that is not the situation in this case.

The Tribunal heard evidence that the babies could be left sleeping on occasions for up to an hour outside the church hall. This included times during the winter period when the babies would not be in the Applicant's sight or sound as the church hall doors would be closed. Although the Appellant and other parents may have been checking periodically on the babies, this in our view Is not sufficient. This was a serious and repeated breach of the National Standards with a real risk to the babies concerned.

Whilst the Appellant may have stopped that practice, we are not satisfied that she has a real understanding of the risks involved. The Applicant appeared to put great store on the fact that the parents of the children concerned did not raise any objections to these practices and appeared happy. Secondly the Appellant had not felt it necessary to refer to the National Standards on a regular basis. In her view the National Standards were not something which she was not required religiously to follow, they were something in the background. She did say that she would follow the National Standards in the future but we are not confident that this would be the case.

Firstly because the Appellant did not, even at the Tribunal, appear to see any potential conflict between her role as a childminder and running a play group. She must accept that as a childminder her responsibilities are to the children in her care are paramount.

Secondly in admitting at the hearing that she had colluded with Mrs C and Ms L to try and deceive OFSTED by requiring the parent of one of the children to remove their child, should there be an inspection, in our view brings into question our ability and that of the Respondents to have confident in the Appellant's future actions. Whilst the register itself may have been accurate, the Appellant's action in this regard do indicate to the Tribunal that, at the very least, the Appellant was prepared to carry out the wishes of parents, even if they were in conflict with the Appellant's registration certificate. The certificate of registration is intended to ensure the welfare of the children in the Appellant's care as are the National Standards.

In those circumstances and for those reasons we think it appropriate that the Appellant's registration certificate should be cancelled.

ORDER

The appeal is dismissed.

The decision was unanimous.

Dated this 7^th day of April 2004

Signed ……………………………………………

Stewart Hunter

Chairman

Mr James Black

Mr James Churchill.