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Cite as: [2004] EWCST 393(EYJP)

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Christiana Odubamowo v OFSTED [2004] EWCST 393(EYJP) (16 July 2005)

DECISION

Christiana Odubamowo v OFSTED

Case No's: [2004] 0393.EYJP [2005] 452.EY

- Before -

Ms Liz Goldthorpe (Chair)

Mr Peter George

Mr Keith White

Hearing at the Care Standards Tribunal

Pocock Street, London

On 17^th and 18^th March 2005

Appeal

The Applicant (CO) appealed under Part XA of the Children Act 1989 ("the Act") as inserted by Section 79K of the Care Standard Act 2000 against an order made on 22^nd October 2004 by the Inner London Family Proceedings Court (District Judge Gillibrand) to cancel her registration as a childminder, and, furthermore, against the decision by the Office for Standards in Education ("OFSTED") to cancel the said registration pursuant to Section 79M of the Act.

The Appellant appeared in person and said she intended to call a witness, Ms A, on 18^th March. Ms A had given a statement dated 20^th October 2004 for the hearing at the Family Proceedings Court, at which she gave oral evidence. Ms A failed to attend the Tribunal hearing.

Ms Freeborn of Counsel, instructed by Messrs Bevan Brittan, represented the Respondent and called Mr Georgiou, Ms Kendrick and Ms Ramsay of OFSTED, PC Stafford and PC Morrison, and Ms U and Ms D.

PRELIMINARY MATTERS

On 4^th January 2005 the President refused an application for a preliminary hearing and made orders under 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.

On 17^th February the President refused the Respondent's application for an adjournment. Ms CO issued a second appeal, against Ofsted's decision to exercise its powers pursuant to section 79G of the Act to cancel her registration on grounds of suitability, her failure to comply with regulations made pursuant to the Act and her failure to comply with a condition of her registration. On 23^rd February the President ordered the consolidation of the two appeals and gave directions for the filing of video evidence by the Applicant showing "some salient areas of her apartment" and the abridgement of time limits for service of documents.

On 17^th March we continued the Restricted Reporting Order in respect of the first appeal and made an order under Regulation 18 in respect of the second appeal.

Hearing and further Directions

The Applicant submitted video evidence showing her flat, which was not received by the Respondent, but was viewed on 17^th March. The Applicant failed to arrive until 11.40 a.m. on the first day of hearing and did not bring her childminding records. She explained she had received a letter from the Respondent telling her to come at 11.00 am, but could produce nothing to support this assertion. The Respondent did not object to her submission of 3 undated photographs that she said showed the sitting room in her flat and a number of children she said had been in her care and had been taken in the week of the incident described below. We accepted these as late evidence having warned the Applicant about the weight that was likely to be attached to such uncorroborated material.

Having completed the evidence for both parties in relation to the s.79K appeal (Appeal One) at 5:00 pm on 18^th March 2005 we concluded that written submissions should be made and the s.79G appeal (Appeal Two) should be adjourned to a date to be fixed, on the following directions:

i) An extension of the Restricted Reporting Order on both appeals until further order.

ii) Counsel for the Respondent to serve written submissions on Ms CO in relation to Appeal One no later than 4:00 pm on 1^st April 2005.

iii) Both parties to file written submissions with the Tribunal in respect of Appeal One no later than 4:00 pm on 8^th April 2005.

Miss Freeborn provided detailed written submissions addressing the evidence heard on 17^th to 18th March, but, being limited to the s.79K appeal, these submissions did not address the Respondent's wider concerns and issues arising in the s.79G proceedings. The Applicant did not file any submissions.

THE LAW AND GUIDANCE

Cancellation

The Children Act 1989 provides two methods of cancellation of registration of a childminder: the conventional and the immediate (or emergency). Both were used in this case, but it is only the immediate procedure with which this decision is concerned. On application to the Family Proceedings Court in accordance with s.79K(1)(b) of the Act for immediate cancellation, the test that the court must apply in determining whether to grant the application and cancel the registration is that "it appears to the justice that a child who is being, or may be, looked after by that person, or (as the case may be) in accordance with the provision of day care made by that person, is suffering, or is likely to suffer, significant harm". If the court finds that the grounds exist it is then able (but not obliged) to make an order cancelling the registration.

In this context "likely to suffer" means that there is a real possibility that the child will suffer significant harm (Re H & R [1996] 1 FLR 80). The meaning of the phrase "likely to suffer" was considered in Spicer v Ofsted [2003] 0165.JP at paragraph 19 where it was defined as meaning "that there is a real possibility that the child will suffer significant harm".

Supervision and Safety

Standard 6.3 of the National Standards requires that children are "under the direct supervision of the childminder or assistant at all times. Supervision should be sufficient to ensure that children are safe at all times."

Notification

Any such incident as described below must be reported to Ofsted by the childminder in question by virtue of Regulation 6 of the Day Care and Child Minding (National Standards) (England) Regulations 2003.

The basis of determination by the Tribunal

The Tribunal is not considering the merits of the decision of the Family Proceedings Court but is considering afresh the test contained within s.79K of the 1989 Act. The Respondent must prove that the grounds contained within s.79K of the 1989 Act are made out. Further, because the section empowers rather than requires the court to make an order, the Respondent must show that such an order should be made.

Disposal of appeals against an order made under s.79K is provided for in s.79M: the Tribunal may dismiss the appeal or alternatively allow it (and hence allow the Applicant's registration to be restored) and impose, vary or cancel any conditions upon the registration under section 79M(2) of the 1989 Act.

FACTS

The Applicant, who is aged 60, lives alone in two-bedroom 5^th floor purpose built flat in London. She was first registered as a childminder in March 2003 and in January 2004 she requested a variation in the conditions of her registration to allow her to care for two children under the age of 2. Her terms of registration in September 2004 allowed her to care for no more than six children under the age of 8 years, of whom no more than three could be under 5, and no more than one under 1 year old. She has been subject to annual inspection by Ofsted from the outset. In October 2003 she also became a member of a local Child Minding Network and was subject to supervision and support by that organisation.

On September 7th 2004, Ms U, the mother of D then aged nearly 14 months, engaged Ms CO's services. Ms U, who was a student and a single mother at that time, funded this through the Care to Learn scheme, which provided funds to enable 16 to 19 year olds with children to attend college by paying childminding fees direct to the relevant childminder. On 22^nd September 2004 she and a friend, Ms L, went to the Applicant's flat to see D, arriving between 12.15 and 12.30. They received no answer when they rang the doorbell, nor when they subsequently knocked, but both women said they heard children crying. Ms U said she was distressed and her attempts to reach the Applicant on her home telephone by using her mobile telephone resulted only in her being connected to an answering machine. When she subsequently rang the Applicant's mobile telephone, the Applicant responded saying 'I'm in the house…I'm coming'. When she still did not arrive, Ms U said she rang the doorbell repeatedly and could hear the sound of young children crying inside the flat. Ms L described putting her hand through the letterbox, which was grabbed by a child's hand. She said she looked through the letterbox and saw a distressed child dressed in a vest in the hall whom she identified as D, with 3 other children behind him. She again heard the sound of children crying.

Ms U and Ms L said they had been outside the flat for at least 15 minutes when the Applicant finally arrived from the direction of the lift. By this time Ms U said she was crying and demanding to know why the Applicant had left. All three women then entered the flat. Ms U said she pushed past the Applicant in order to get in first, a claim not challenged by the Applicant, but who then claimed under cross-examination that they had gone in together. Ms U said she had picked up D in the hall and he was sweating and moaning, as were all four of the very young children present. Ms L said a little girl with drops of milk in her hair held out her arms to her to be picked up 'looking relieved to see someone.' Ms L, who said she had never been to the flat before, said she noticed, amongst other things, uncovered electrical sockets, a carpet stuck down with worn duct tape, the door to the kitchen open when they entered and knives and a kettle in the kitchen. One child had climbed onto furniture and jumped onto her back.

Ms U said she had had the opportunity to look in both bedrooms when searching for D's belongings. She found D's bottle top in one bedroom that Ms L had also been into, and there were children's buggies stored in the other. Both women stated there had been no other adult anywhere in the flat, nor had the Applicant mentioned anyone being there to look after D or any other child. Both also confirmed the Applicant had spoken English throughout the time they had spent in the flat and had spent much of the time following Ms U around trying to calm her down and prevent her going to the police. Both women described the radiators as very hot and the state of the flat as being much less well kept than that shown in the photographs and video. Ms L described the bedrooms as messy with electronic and other equipment lying around. Ms U also told us she recalled an earlier incident when she had been in the Applicant's flat and D had put a battery lying on the floor into his mouth. On 30^th September Ms U confirmed details of the events in similar terms to Ms Kendrick of Ofsted.

Ms U went to the local police station to complain and saw PC Morrison at about 1pm. A total of four police officers attended the premises thereafter and found the flat clean, heated and in a reasonable condition. PC Morrison noted that the living room door could not be closed due to a piece of carpet lying over the main carpet. Both she and PC Stafford said they had observed a kettle and knives on the kitchen work surface. Both said the Applicant had admitted to them that she had left the children alone, although only for a few minutes. The Applicant confirmed two of the 3 children present were two years old. PC Morrison checked both bedrooms and found no other adult on the premises. Noting that none of the children were old enough to speak, but all appeared well and happy, the officers judged them not to be in any danger at that point or at risk of any harm from the Applicant.

The Applicant denied certain aspects of the accounts of these witnesses, stating, for example, in her statement that "All the children were playing in the sitting room when I entered the flat". However, she accepted she had left the flat to go to a local mini cab office, returning shortly afterwards.

On 24^th September, the Applicant telephoned Ofsted requesting approval to employ an assistant. According to the Respondent, she failed to mention the incident two days earlier, which Ofsted stated it had heard about for the first time on 27^th September on receipt of a telephone call from a Duty Social Worker and an initial police report.

The local Police Child Protection Unit subsequently confirmed that it was taking no further action against the Applicant in relation to any criminal offences, but had issued a verbal warning to her. A final police report on the incident was sent to Ofsted on 30^th September highlighting safety concerns about the premises and confirming that there had been 3 children under 2 present when officers had visited. Police checks revealed no other concerns about the Applicant.

Ms Ramsey, an Ofsted inspector, visited the Applicant on 28 September 2004 and noted the problem with the carpet. According to Ms Ramsay, there were 3 children present but she was unable to establish their dates of birth, although two were under two and the Applicant confirmed she also collected two older children aged 8 and 6 from a local school. The Applicant voluntarily agreed to suspend childminding. Ms Ramsay's record of that visit makes no reference to any claim by the Applicant that Ms A or anyone else had been present at the flat during her absence on 22^nd September, indeed Ms Ramsey told us she was very clear that this suggestion would have triggered other questions about the identity of the person and an investigation into whether that person had been vetted. On 29^th September according to Ms Kendrick, the Applicant telephoned her and confirmed she had agreed to voluntary suspension because she realised she had been at fault. Ms Kendrick's note records the Applicant again admitting to leaving children alone to go to the local minicab office because she had been unable to get through on the telephone. She had also stated she felt she needed an assistant to help her cope with the children.

The local Social Services department held a strategy meeting on 29^th September and a social worker carried out an initial investigation. The department confirmed on 4^th October that it would not be exercising any of its child protection powers, nor would it take any further action in relation to any of the children as none of their parents had expressed previous concerns and the children were no longer in the care of the Applicant.

On 29^th September the local Child Minding Network wrote to the Applicant reminding her she was under suspension as the result of earlier 'breaches in her childcare practice' and was now removed from Network membership as a result of the incident on 23^rd September. She was informed of her right to appeal, but it would appear the Network received no subsequent appeal from her.

Mr Georgiou, the Manager of Ofsted's Complaints Investigation and Enforcement Unit, took the decision to make an emergency application for cancellation based on the Applicant's admissions, the risk of significant harm to the four children in her care as the result of leaving them alone on the premises, the breaches of her conditions of registration in caring for more than 3 children under 5 years old and her failure to inform Ofsted about the events of 23^rd September. Accordingly, on 1^st October, the Respondent made an on notice application for emergency cancellation to the Inner London Family Proceedings Court stating it regarded the incident as serious and a breach of the absolute trust and confidence required and that it had no confidence that children would be safe and secure in the care of the Applicant. District Judge Crichton adjourned the application to allow Ms CO to seek legal advice, imposing a time-limited condition on her registration barring her from child minding until the date of the adjourned hearing.

At the full hearing on 22^nd October Ms CO denied that she had left the children alone and claimed another adult, a friend's daughter, had been in the flat at the time. She stated in sworn evidence that she had left the flat to go to the mini cab office having instructed Ms A not to open the door or to answer the telephone. When she returned and entered the flat with Ms U and Ms LD she had called out to Ms A in her language to go into the bedroom. She also claimed that the fourth child R who was present on 23^rd September was not being minded by her, but had merely been dropped off by a friend who was looking for a job. In her oral evidence Ms A said she had hidden in the bedroom behind a locked door when she heard people knocking at the front door and no-one had come into the room at any stage. District Judge Gillibrand found that:

i) the children had been exposed to a risk of significant harm, both physical and emotional

ii) Ms CO and Ms A were 'untruthful' and 'unreliable' witnesses, and

iii) Ms CO had been 'reckless' and 'irresponsible'.

and duly ordered cancellation of Ms CO's registration.

On 25^th October the parents of the children were informed about the cancellation of registration and when Ofsted visited Ms CO's flat on 13^th December there were no children present. Ms CO appealed against the cancellation on 6^th November 2004. Thereafter on 8^th November Ofsted issued a Notice of Intention to cancel Ms CO's registration under s.79L(1)(b) of the Act on the basis of its concerns about her childminding practice.

In her evidence to the Tribunal and in her cross examination of the witnesses the Applicant did not deny leaving the children in the flat in order to go to the mini cab office, but contended she had left them for a short while in the care of Ms A. In her statement dated 20^th October 2004, Ms A stated she could not remember what time she had visited the Applicant's flat but believed it was around noon, a timing supported by the Applicant in her statement. She said the Applicant had gone out to the mini cab office about an hour later, but without telling her why, and was gone for about 5 minutes, during which time a woman had called. The Applicant stated Ms A had been in the flat for 10 minutes before she went out, having realised she had 'no vehicle organised for the day' for the school pick up, and, explaining this to Ms A, said where she was going and why. Ms A said she had not answered the telephone when it rang as she was not authorised to do so, nor had she answered the door, but had seen the woman 'through the peep hole when she was making a call.' When the Applicant returned she had instructed Ms A 'in her language' to go into one of the bedrooms. She had remained there until the women left after an argument. When she heard a loud bang she had returned to the bedroom whereupon other people had entered the flat.

The Applicant contended that witnesses had been lying about having gone into either of the bedrooms. She denied that the patio door leading onto the balcony was open at any time or that there was any equipment lying around or that children could reach anything in the kitchen. She conceded that such young children should not be left alone and that they would be at risk of harm if they were, but insisted Ms A had been in the flat. Therefore the children had not been on their own and that she had made this clear throughout to Ms U, the police and to Ofsted. She had found the presence of the police, and in such numbers, overwhelming and had been very confused, which was why she had not drawn the presence of Ms A to their attention and they had not discovered her because they had remained in the sitting room. She further suggested that, as neither the police nor social services had taken any proceedings against her, there could be no real cause for concern.

Respondent's submissions in respect of Appeal One:

Miss Freeborn invited us to dismiss the Applicant's appeal against the s.79K decision and, in that event, it would be unnecessary to consider the s.79M appeal.

She stated that in the case of Spicer v Ofsted [2003] 0165.JP the emergency cancellation under s.79K was in March 2003 immediately prior to The Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 SI 2003 No.332 ("the Suspension Regulations") coming in to force on 1 April 2003. Therefore, she submitted, at that time there was no other way of preventing a child minder from minding as a matter of urgency. If the Suspension Regulations had been in force at the material time, they would have provided a means by which some urgent action could have been taken short of cancellation.

Miss Freeborn drew attention to the observation made in that case by Burnton J (at paragraph 35 of his judgment) about the judgments formed by the Respondent in respect of providers:

"While the Tribunal must exercise its own judgment, it should pay due regard to the experience, knowledge, functions and powers of the Chief Inspector and his staff. Where, as in the present case, serious failures have been established on the part of the registered person, such that either a child has suffered or is likely to suffer significant harm, the Tribunal should be cautious before accepting assurances from the registered person that the Chief Inspector has no opportunity to monitor. On appeals against orders made under section 79K, the Tribunal should give substantial weight to the importance of persons wishing to mind children for reward demonstrating to the Chief Inspector their fitness for registration before they undertake or resume child minding, rather than while carrying out child minding. There is much to be said for the contention of the Chief Inspector that persons who could not qualify for registration (because, for example, they are in need of training) should not, in general, act as child minders until they have demonstrated to the satisfaction of the Chief Inspector that they should be registered, for example that they have in fact successfully undertaken the requisite training."

Miss Freeborn submitted that this was of direct relevance to this Applicant's conduct. If the Applicant's registration were reinstated, there would no effective way for the Respondent to monitor whether she was continuing to leave very young children unattended.

Pointing out that establishing what had occurred on 23^rd September 2004 did not depend on accepting just one person's word against another's, Miss Freeborn stated that, in every material particular, Ms U's evidence was supported by Ms L, neither of whom had anything to gain by what they had said, nor had they any motive to lie to the Tribunal or to do so previously to the Family Proceedings Court on 22^nd October. Indeed, none of the witnesses had any motive to do so, nor to fabricate evidence or omit important information given to them by the Applicant. In particular, Ms L was persuasive in that she did not suggest that all the children were screaming and highly distressed, suggesting that she was indeed giving an accurate account and not exaggerating what she heard and saw.

The Respondent contended that the Applicant's versions of what she said during her telephone conversation with Ms U when Ms U was outside the flat had materially changed over time. Furthermore, demonstrating there had been a responsible adult present in the flat throughout, if only to calm down Ms U who believed her child had been abandoned, would have been a sensible course of action, but one the Applicant failed to take, for which the only credible explanation was that Ms A had not been there at all in accordance with the evidence of Ms U and the police. The Applicant did not claim that Ms A had been hiding in the wardrobe and was unable to plausibly challenge Ms U's assertion since it was inconceivable she was able to follow both Ms U and Ms D around the flat and take proper care of the three other young children who were requiring her attention.

The two police officers had no motive to mislead the Tribunal and if they were deliberately seeking to distort the truth to make life difficult for the Applicant, one would expect them to have reported seeing unhappy and disturbed children. Whether there was or was not a kitchen door in place at the time of the police visit was irrelevant, since, if Ms L's evidence was correct, the children had access to the kitchen and a risk of significant harm. The Applicant's video also appeared to show that the door would not stay closed unless it was held closed.

The Applicant's repeated suggestion of a racist element to the evidence given by the police or other witnesses was both offensive and baseless and her challenges to police during her cross examination of them undermined her assertion that she had been flustered and shocked and unable to give a proper account of herself at the time. The conclusion must be that she was well able to provide an account of herself to the police on 23^rd September, but had not mentioned Ms A because she had yet concocted this story. Pinpointing exactly when the Applicant had first managed to persuade Ms A to collude with her was impossible, save that it was almost certainly after 28^th September and confirmation of the voluntary suspension. The Applicant had had no reason to think prior to that date that the Respondent was taking any action arising out of the 23^rd September incident until Ms Ramsey's visit on the 28^th September. This was supported by the fact that, after this point, she had not repeated her admissions about leaving the children alone once she realised her abandonment of the children was being taken very seriously.

The Applicant had failed to explain why she could not have simply asked Ms A to undertake what she described as a very simple quick errand, why it was urgent since she did not need the minicab for another two and a half hours when the older children finished school, and why she had gone out without any means of contacting Ms A, who allegedly did not have a mobile telephone. If she had banned Ms A from answering the landline, this was an extraordinarily irresponsible thing to do, but was a story that she had concocted to cover the fact that she knew Ms U had rung and there had been no answer.

Pointing to the evidence of the Applicant, the way in which she had dealt with the Tribunal hearing and to the evidence she had produced from Ms A, Miss Freeborn said this demonstrated:

• numerous and striking inconsistencies between Ms A's statement and that of the Applicant, including a lack of clarity about the number of children in the flat and the length of time she had been there before the Applicant went out.

• the Applicant had attempted to distance herself from the detailed contents of her signed statement when she realised what a hostage to fortune it was, and had not filed a further one correcting its contents despite alleging it had been prepared in haste and the President's Directions on 4 January 2005 – she had failed to include in her statement her assertion that she had told Ms Ramsey and Ms Kendrick of Ms A's presence and was unable to explain this when cross examined about it, despite the detail with which she dealt with Ms Ramsey's visit.

• and impressive and thorough command of the papers and detail, which showed she was more than capable of submitting a full account had she chosen so to do.

• wholly unconvincing explanations for Ms A's absence, indicating that every adverse inference should be drawn from her decision not to attend, despite being told when and where to go by the Applicant.

• her general unreliability as shown by her explanation for her late arrival on 17 March, leading to her admission that the letter did not exist, and invited a conclusion in similar terms to District Judge Gillibrand that the Applicant was "an untruthful and unreliable witness"

Miss Freeborn asserted that this was one of the relatively rare occasions when the Tribunal should find that the Applicant had deliberately set out to mislead the Tribunal and had concocted the story about Ms A in its entirety. This was further justified by the Applicant's performance as a witness and extreme caution should be exercised before accepting her version of events wherever it was in conflict with that of another witness.

As to the question of risk, Miss Freeborn said it was commonsense that children of the ages of 14, 18, 19 months and 2 years must not be left unsupervised, given their lack of awareness of danger, the need for comfort and reassurance and the need for protection from the specific environmental risks inherent in this flat, and the possible physical hazards described by Mr Georgiou which included putting objects in their mouths, choking, climbing on and falling off or against furniture, and the evidence from the Applicant's photograph of her property showing obvious trip, fall and choke hazards in the form of tables, telephone wire, and furniture. None of this would be objectionable per se with proper adult supervision, but without, anything could have happened and it was fortunate that the children were (merely) sweating and distressed when discovered by Ms U.

The Applicant's claim that it was satisfactory to leave the children with an unvetted carer, without the knowledge or permission of the children's parents, to deal with a situation which was by no means an emergency nor even urgent not only demonstrated a careless attitude to the safety of the children in her care but also raised the question of how often children had previously been left unattended or with an unvetted substitute. Miss Freeborn contended that even at the conclusion of the hearing, the Applicant did not seem to have grasped the full implications of taking such a decision for her suitability to be a registered childminder.

Miss Freeborn further argued that no inferences should be drawn as to the seriousness of the risk to children in the Applicant's care from the lack of action taken by the police and local authority since it was a matter for these agencies to determine, respectively, whether the abandonment of the four children amounted to a criminal offence, and whether there was an on-going risk of significant harm to the children such as to justify carrying out an investigation under s.47 of the Children Act 1989. The police had declined to take matters any further given the apparently satisfactory state of the three children still with the Applicant when they visited, and the local authority had taken the view that suspension of the Applicant's registration was a sufficient measure to meet any concerns, particularly since she did not have any children living with her.

Ms Freeborn submitted that the weight of the evidence established that the Applicant:

i) had left four children unattended in her flat for not less than fifteen minutes on 23 September 2004;

(ii) was over minding on 23 September 2004 by having four children under the age of 5 in her care;

(iii) had admitted to the police who attended on that day that she had left the children alone;

(iv) admitted to Angela Ramsey on 28 September 2004 that she had left the children alone, although on that occasion she repeatedly said that it was for five minutes only;

(v) admitted to Suzanne Kendrick on the telephone on 29 September 2004 that she had left the children alone;

(vi) had failed to disclose to the Respondent the incident of 23 September 2004 including the police visit, despite making contact with the Respondent by telephone on 24 September 2005

Miss Freeborn invited us to make findings in respect of (i) to (v) above, and specifically that the Applicant had:

a) had left three children aged under 2 and one of 2 years of age alone for at least fifteen minutes on 23 September 2004;

b) exposed all four children to a risk of significant harm by so doing;

c) had admitted leaving the children alone, to Ms U, Ms L and to the police on 23 September 2004, to Ms Ramsey on 28 September 2004; and to Ms Kendrick on 29 September 2004;

d) had fabricated the story about Ms A being left with the children on 23 September 2004 and had lied to the Tribunal on oath in respect of the events of that day and, furthermore, in fabricating the story about Ms A's presence at the flat, the Applicant had attempted to frustrate a child protection investigation and children could thus never be safely entrusted to her care again.

TRIBUNAL CONCLUSIONS

The incident on 23^rd September 2004 that led to the order for emergency cancellation on 22^nd October 2004 is not disputed insofar as the Applicant has never sought to deny that she left four children under 5 in her 5^th floor flat to go to a local mini-cab office.

We carefully considered afresh the test in s.79K of the 1989 Act and whether the Respondent had proved that the grounds in s.79K were made out and whether it had shown that an order for cancellation should be made, and therefore whether the appeal should be dismissed or allowed. We also considered whether we should allow the appeal but impose conditions on the Applicant's registration, as provided for in s.79M.

In so doing, we focused our attention on the following matters, namely the Respondent's assertions about the incident itself, the Applicant's conduct in response to Ms U, in response to the incident itself and to the investigation of it, as well as to the cancellation of her registration, and, finally to the Tribunal hearing. We considered whether the character of the Applicant in leaving the children alone or alternatively, according to her explanation, with an unregistered adult, were sufficient reasons in and of themselves for cancellation of her registration. We also took into account factors such as whether this incident amounted to a single occasion (and whether that in itself would be justified in any event), the length of time the children had been left, the reasons for the absence and whether the children were likely to suffer significant harm, including physical and psychological harm.

We can find no evidence to undermine the credibility of Ms U and Ms L. Ms U gave as her reason for giving evidence her concern for what might have happened to her child and what might happen to other children in the Applicant's care. Indeed her distressed reaction to our question about how she felt when she realised her son had been left unsupervised was both genuine and revealing and lent credence to her statement. Her description of going into the bedrooms to look for her son's belongings was also entirely credible given the circumstances. The Applicant sought to suggest that Ms U had acted out of animosity because of some private arrangement they had come to about payment: we can find no evidence to support this assertion. We found nothing whatsoever to support the notion that Ms U was malicious in any of the accounts given by any of the witnesses other than the Applicant herself.

The Applicant also suggested that Ms L's evidence could not be relied upon because she had had words put in her mouth: this could be inferred from the fact that she was present when Ms Kendrick of Ofsted had taken a proof of evidence from her and Ms U. Ms Kendrick told us Ms L had been in the shower when she interviewed Ms U but she had written the statements in a particular way in order to form a chronological narrative. She had taken Ms U's statement first, there was no pressure on her, and she had been a somewhat reluctant witness.

In all probability if the police had transcribed this evidence both witnesses would have been interviewed entirely separately. Conducting these interviews on the same premises at the same time is not ideal, but despite this we believe these are both credible witnesses. Ms Kendrick was not conducting a police procedure and any shortcoming in the way in which she interviewed Ms L and Ms U does not materially affect the evidence they gave, which we preferred to that of the Applicant. Nor can we find any reason to doubt the credibility of the evidence given by Ms Ramsey and Ms Kendrick as to what happened in their discussions with the Applicant: their records are consistent, their oral evidence professional and measured and lent weight to our overall conclusions as to the facts.

The real central question is not whether Ms U's report of the incident was malicious or otherwise, but the fact that it took place. Ms U and Ms L's evidence was supported by circumstantial evidence and the Applicant's own admissions. She admitted she had gone to the minicab office and had given the distance and timing, so there was no issue that she had left the building and left very young children on the fifth floor. Therefore, where she was or was not when the telephone conversation took place between her and Ms U was largely irrelevant.

Furthermore, the Applicant admitted to PC Stafford she had left the children and he told us it would take about 5-10 minutes to get to the minicab office. We do not regard as significant the apparent conflict between his evidence as to the state of the flat, in particular the bedrooms, and that of Ms L. He is a beat police officer of some 14 years experience with a reasonable perspective on the suitability of premises.

The Applicant denied telling the officers she had left children on their own but in fact she told us she had done so. PC Morrison's evidence dealt with what Ms U had said on the day and confirmed that the Applicant had admitted she had 'just popped out'. We find no plausible reason why these officers, who attended the scene some 35-40 minutes later, should all wish to make up what they saw. We found their corroborative evidence credible and lent weight to the circumstances of the incident, especially with regard to the timing.

We note the Applicant's allegations of racism and the Respondent's invitation to us to deprecate this unattractive approach. Although we accept this may be an issue for her, we expect that someone providing a professional service, i.e. a childminder, should be able to relate to other professionals and should expect to be checked on and for incidents such as this to be taken seriously. The Applicant was an experienced childminder and police attending in these circumstances would, we believe, not entirely be a surprise to her, even if the actual number of officers may have been. Conversely, if the Applicant had felt herself to be in difficulties by the intrusion of 4 police officers, and in such a state as not to have been able to give a proper account of herself, we question her ability to cope. We recognise it was an emotionally charged situation and we can understand her description of a situation of high tension with so many officers present. We note that she may have been led to make inaccuracies in her response because of the charged situation but we are not relying solely on what she said to the police. Regardless of the words used or her response the incident still happened and her allegations do not change the overall situation.

The demeanour of each and every witness for the Respondent was that of a truthful witness.

As to whether the Applicant changed her story, there is nothing to suggest any alternative explanation. It is human nature to forget or to change a story especially if the original is slightly untruthful. Even giving the Applicant the benefit of the doubt, the professional assertions are overwhelming and on balance we accept that the Applicant is an unreliable source of evidence. There is compelling evidence to suggest that she did change her story right the way through and gave the impression of someone attempting to manipulate the events and facts to suit a particular outcome. Her production of the video and of the photographs of her flat would seem to support this contention. She was also inconsistent as to the layout of the furniture in her flat. She was aware that Ms U was intending to go to the police station which was in itself sufficient motivation to begin arranging a scenario that would fit the picture she wished to present.

We found the Applicant's behaviour with regard to Ms A's attendance at the hearing odd. She told us Ms A had no mobile but in fact the indication was that when the Tribunal Secretariat attempted to reach Ms A that she did have a mobile but it was switched off. We are allowed to draw inference from the non-appearance of a witness and we believe that this is consistent with the Respondent's assertion that Ms A had not in fact been present in the flat at all. As both a witness and a support for the Applicant's story Ms A evaporated before our eyes.

The inconsistencies in the Applicant's evidence and the contradictions in relation to some of the issues undermined her credibility and lead us inevitably to the conclusion that the Applicant was an unreliable witness, as evidenced by, for example, that:

(i) on three separate occasions she told different people she had been the only person present in the flat and was only later when matters became more serious for her that she began to allege that Ms A had been present.

(ii) She admitted to police on 23rd September that she had left the children alone, but denied doing so to us in oral evidence

(iii) her evidence about the layout of the flat and her description of the bedrooms did not match those of any other witness. This included her denial that she used one of the bedrooms for storing buggies, and her assertions about the kitchen door and about Ms A hiding in the bedroom. It was clearly important for the Applicant to check out what each witness had seen in each room in order to establish her insistence that someone was in the bedroom.

(iv) She gave contradictory information or failed to give relevant information at different times, shown for example, by her insistence that she had told police that Ms A was there. It was also demonstrated by her conduct in relation to this appeal, including her own lateness in arriving on the first day, her inability to produce records she said she kept that matched those that Ms Ramsey said she saw and the confusing information she gave about the arrival of her witness, Ms A. It was most noticeable that she showed a complete confusion about timing of the availability of minicabs and an inability to adequately plan booking of this service: we noticed in particular that immediately after talking about this at the end of the first day of hearing, she said her head was 'spinning'.

(v) She encouraged Ms A to breach the terms of her employment or to risk dismissal on her behalf: we note that she told us on the second day that she had instructed Ms A to register her presence at work and then come straight to the Tribunal. In fact, we gained the impression that Ms A was never coming and may have never intended to come at all.

(vi) She failed to notify Ofsted of the police investigation despite her telephone call regarding her urgent need for an assistant some two days after the incident. In fact she made a total of 3 telephone calls without mentioning the incident at all.

We conclude that the Applicant had the capacity to recognise the necessity to tell the whole truth, rather than to be selective. Overall, we find nothing malignant in her demeanour, but more of a defensive and reactive attitude to situations she found herself in. We do not believe she is a compulsive liar but may rather have a tendency to react to difficult situations of her own making by using mitigating explanations in an attempt to put matters right after the event.

We also believe that much of what the Applicant did and said indicated an inability to multi-task or to anticipate difficulty and plan ahead. At the very least she showed herself to be chaotic, unable to predict or understand the needs of vulnerable young children or the consequences of particular situations, with poor insight and an apparent failure to take notice of advice or information from others. Her explanations for what she chose to do were full of contradictions and amounted to an inherently weak argument for leaving the children: she decided to go to the mini cab office rather than persist in telephoning and in circumstances where urgent action was not justified and allegedly left the children with someone unsuitable who could have gone in her stead and in circumstances she herself created in which there could be no communication between the flat and the outside world. Her reaction a complete lack of forethought in failing to anticipate the outcome of leaving children in such a situation, but, having subsequently realised her error, she effectively became 'wise after the event'. This led her into the temptation of making up the evidence to avoid the consequences of her own actions.

This was amply demonstrated by her failure to tell Ms U at the time that Ms A was in the flat, which would have been the obvious reassurance to give to a distraught parent. Her subsequent introduction of this as an explanation looked like an afterthought to try and make up for her deficiencies, as was her use of a video to try and persuade us that the events could not have taken place as described and to reassure us that her premises were inherently safe. All these things had all the hallmarks of post event rationalisation and were inherently lacking in persuasive quality. They showed that because the Applicant was unable either to explain or rationalise what she had done, she sought to minimise the effect of her actions.

This not only demonstrated a tendency to indulge in rationalisation, but also that the Applicant learns incrementally through incidents. Her failure to understand the significance of leaving children on their own and her heavy reliance on her experience as a grandmother rather than as a childminder did not inspire confidence in her professional abilities: we find that she did not have a basic understanding of caring for children and it was difficult to find any external values reflected in her behaviour. At best she did nothing to offset the concerns expressed, or at worst she substantially confirmed the Respondent's case.

The Applicant demonstrated she was capable of defending her corner, but, despite our careful assistance to her as an unrepresented litigant and her own ability to conduct her case, was unable to give a thorough account of herself in relation to any of the matters that had caused concern. A deliberate intention to mislead implies thorough and proactive planning on the Applicant's part: on the way in which she presented her case we find merely that she did not convince us as to the totality or veracity of her evidence in contrast to the other witnesses.

Significant harm or risk of significant harm

These were ambulant children aged 14 months, 18 months, 19 months and 2 years respectively. They would have become aware of the absence of an adult and become distressed as a result of that awareness and, in our view, would have been likely to have searched either for alternative occupations to distract themselves or for an adult in order to find emotional comfort.

We concluded that the premises were in general suitable, and that any potential everyday hazards could be minimised with supervision. Without such supervision, however, furniture presented a hazard and an ambulant child of sufficient age accessing the kitchen could use a chair to reach any objects lying on work surfaces. We are satisfied that the kitchen could have been accessed whether there was a door there or not and we agree that the Applicant's own video evidence showed that the door itself would not stay shut without assistance.

Therefore the Applicant's absence was a critical factor in establishing whether the children were at risk of significant harm and all the more so if Miss A was also not there or unable to perform suitable supervision. We find on the balance of probability that Ms A was not there: she failed to attend the Tribunal hearing as a witness and there was no reliable evidence that she was present at all. Indeed, we find it almost impossible to accept that she was there in the light of the evidence from all the other witnesses who saw the flat on 23rd September.

In the inherently unlikely event Ms A was present, this presented unacceptable behaviour on the part of the Applicant. This person was not vetted, not known to Ofsted or to the parents of the children concerned, and the Applicant's apparent instructions to her not to answer the door or telephone and to hide in the bedroom were not only irresponsible but also bizarre in all the circumstances. The Applicant's statement that all the children were in the living room when she entered the flat lent further credence to this view.

Leaving children alone is sufficient reason in itself for cancellation. It was a high risk strategy to leave children of this age within these premises. But to go to the ground floor from the fifth floor and then leave the building altogether to go outside however close the mini cab office was, is unthinkable. Where the Applicant was or was not in relation to the flat when Ms U called her is entirely irrelevant. We find that the four children were left alone for a significant period, possibly in excess of 15 minutes, but the key issue is that the Applicant by her own admission left them and the length of time is irrelevant.

Despite the somewhat colourful language used by Mr Georgiou, we accept that his concerns were justifiable and the submissions by the Respondent entirely reasonable. The risk to children of this age is both physical and psychological. A great deal was made of the physical risks, which we have no doubt are highly relevant and presented considerable dangers to the children. We also note that, although we did not hear oral evidence from the local Network Coordinator who had visited the Applicant and monitored her childminding practice, it appears that, as a result of her concerns about the Applicant's conduct during an outing in April 2004, she had given the Applicant written information on child safety, child development and risks to children at various ages and stages. This gave specific examples of physical harm likely to be caused in a variety of situations without close supervision by an adult.

The bulk of the evidence with which we were presented concerned physical risk, but this is to ignore the fact that emotional harm is an important component of significant harm, and, in particular, to overlook the anxiety and distress caused by the absence of an adult. Babies and very young pre-verbal children are primed from birth to be curious, competent learners. They understand their world largely via touch and manipulating objects, and are social creatures adept at gaining attention and need encouraging interactions from the adults around them especially their parents or carers. All areas of learning and development are intricately intertwined, young children develop and learn holistically and their emotional and social development can be seen as the bedrock for other areas. They are primed for attachment to warm, familiar carers, including key adults in early years settings, who respond and interact in ways that are sensitive (i.e. able to 'tune' into the child's needs), and who are warm, regularly available, reliable, and consistent, which in turn gives a child security, building feelings of trust and safety with other human beings.

Part of appropriate human development is to build secure attachments: the child is reliant on adult capacity to 'tune in' to different needs at different times and to create the confidence that, when anxious, a parent or carer will respond appropriately. A sense of secure attachment to main care-givers is vital to healthy emotional development and developing this in the early years affects the development of the self: self-esteem, personality, self-identity and feelings of self-worth and forms the basis for subsequent relationships – those who have had experience of warm attachments and positive responses become socially adept, self-assured, independent and inter-dependent, and higher achievers.

Between the ages of one and two years children typically demonstrate fear of separation from a parent, of strangers, and changes in personal environment. Infants and young children with a sense of trust in their carers are able to internalise safety and security, allowing full access to emotions. Research shows that the attachment process not only affects emotional development, but also actually prompts physical changes in the brain, exerting a fundamental and lasting effect upon functioning. Childminders have an important contribution to make to this process.

It is undoubtedly the case that a parent is in a better position than other adults to make an appropriate evaluation of risk to their child through established familiarity and therefore is able to take decisions and reasonable risks with her or him. This represents a narrower risk base than that which applies to a professional childminder who is less familiar with the child concerned and should, in any event, be very focused. In particular, children of this age are not at the stage of being able to internalise the existence of a significant other and are likely to believe that an adult cannot be out of earshot. They are at the stage not only of exploration, but also of seeking reassurance from a familiar adult: failure to locate such a person, particularly when distressed can cause the child to become very frightened and emotionally anxious.

Child D's behaviour amply displays the emotional upset caused by the absence of the one person from whom he had a right to expect adequate care. Indeed he had only been there for 2 weeks, a short period in which to bond with the Applicant, and there was no way of knowing how long he had been distressed. In these circumstances he was likely to have been in a greater state of distress than perhaps other children who had been there for longer. The evidence of Ms U and Ms L was that these children were "sweating and moaning and crying". We accept that both these witnesses could see and hear with sufficient clarity to establish this. In short, there was no suitable carer to respond to D's emotional needs or to the needs of the other very young children present. Some children are sufficiently resilient to overcome any ill effects of such experiences, others are not, and it is impossible to ascertain what, if any, lasting effect this incident had on any or all of them. What is certain is that it placed all of these very young children at both physical and emotional risk to their health and or development, with an accompanying risk of impairment to their emotional development.

We find that the Applicant's contribution to the developmental needs of these children was poor. She relied heavily on her experience of being a grandmother in seeking to persuade us of her suitability as a childminder, but we concluded that the Applicant was lacking a real learned ability to anticipate the needs of the children entrusted to her care. We do not need to speculate as to whether this was a one off situation or not: a single such act must inevitably and irrevocably undermine her relationship with any parent and challenge the basic pre-requisite of that relationship, namely the absolute trust required between parent and childminder.

Parents are entitled to expect professional standards from a childminder and an ability to trust such a person to emphasise the emotional needs of the children in her care. In these circumstances these standards were flagrantly flouted and the Applicant caught out. Furthermore, she failed to grasp the full implications of her decisions for her suitability as a childminder, failed to demonstrate throughout the hearing and the appeal process a satisfactory grasp of the basic requirements of childminding and in her actions frustrated the ability of the authorities to assess her suitability as a carer. We are satisfied it would be impossible for the responsible authorities to monitor the future: moreover, we could not trust the Applicant not to do it again, neither did she say at any time that she would not do so.

We find that the Applicant:

a) left very young vulnerable children for a significant period of time on their own in circumstances that placed them at risk of significant harm

b) could not be trusted not to do so again

c) did not deny overminding and her assertion that having the extra child did not constitute an official minding situation because the mother was at an interview was irrelevant: she had exceeded her registration criteria, which exacerbated the risk to the children

The Applicant's appeal is accordingly dismissed and therefore, in these circumstances, there is no need to consider her second appeal under s.79M. For the avoidance of doubt, this second appeal is also dismissed.

Our decision is unanimous.

Ms L Goldthorpe Chair

Mr Peter George

Mr Keith White

16^th July 2005