England and Wales Care Standards Tribunal

Between
Mr and Mrs G - Appellants
And
Ofsted - Respondent
Rev Maureen Roberts Ms Janice Funnell Ms Bridget Graham
[2005] 0527/0528 Heard on 5^th August 2005
1. This is an appeal against a decision dated 6^th July 2005 of Her Majesty's Chief Inspector of Schools (OFSTED) to suspend under regulation 3 of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 the registration of the Appellants as a Day Care provider of childcare under Part XA of the Children Act 1989.
2. At the hearing the Appellants appeared in person and the Respondent was represented by Miss Linda Busch of Counsel instructed by The Treasury Solicitor. We heard live evidence for the Appellant, from the following, Ms. B, Mrs. I, Mr. and Mrs. B, Mrs. S and Mr. E.
3. We decided at the commencement of the proceedings to hold the hearing in private under regulations 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. We were satisfied that this order was necessary in this case to safeguard the welfare of the children and the private life of the people involved in this matter. We further order that the proceedings be subject to a restricted reporting order (regulation18). This prohibits the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, or any matter likely to lead members of the public to identify the Appellants or any child for whom they have cared. We believe that the restriction on reporting should continue and therefore witnesses, except professional witnesses, are referred to in this decision by initials only. Under regulation 27(3), the decision will be published with the Appellants' name reduced to their initials.

The decision

4. At the conclusion of the first day's hearing we adjourned the matter, to the 21^st September 2005, for reasons that are set out below. On the 19^th September 2005 the Appellants withdrew their appeal as their suspension had been lifted. Normally we would have noted this outcome and taken no further action. However the circumstances of this case raise an important point of principle. We therefore outline the facts of the matter and highlight the difficulty the parties faced so that some consideration can be given to addressing this situation should it arise again.

The Statutory Framework

5. Regulation 3(1) of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003, confers a power on the Respondent in accordance with regulations 4, 5, 6, and 7 to suspend the registration of any person. Regulation 3 states: "The Chief Inspector may…suspend the registration of any person acting as a child minder or providing day care if he has reasonable cause to believe that the continued provision of child minding or day care by that person exposes or may expose one or more children to whom it is or may be provided to the risk of harm and the purpose of the suspension is for one or both of the purposes set out in paragraph (2). Paragraph (2) states that the purposes of the suspension are (a) to allow time for the circumstances giving rise to the Chief Inspector's belief to be investigated; (b) to allow time for steps to be taken to reduce or eliminate the risk of harm.

Regulation 4 makes clear that the suspension shall have effect for a period of six weeks, but that the power can be exercised for a further period if the investigations are incomplete or if the Chief Inspector has decided to take emergency action under s.79K of the Children Act 1989.

Regulations 5 and 6 provide for a notice to be served on the person to be suspended and that the notice shall include the reasons for the decision and details of the registered person's right of appeal against suspension.

Background

6. The Appellants were child minders of long standing and good record. On the 5^th July 2005 the Respondent was informed by the local Social Services Department that they were conducting a child protection investigation into allegations made against one of the Appellants. The Respondent was told the details of the allegations but was instructed not to disclose details to the Appellants. As a result of the information given to the Respondent it decided to suspend the Appellants' child minding service. Initially a voluntary notice to suspend child minding was sent. The Appellants then requested a statutory notice for reasons relating to claiming benefit.
7. Both notices were in identical terms, and both were sent on the 6^th July 2005. The Respondent gave, as the reason for the decision, " Derbyshire Social Services have notified Ofsted (the Respondent) that they are conducting a child protection investigation into allegations that have been made by a child minded by you and your husband/wife; that whilst in your care they have been subject to abuse."
8. The reason for such limited disclosure of information was given by the Respondent's child protection liaison officer, (Mr. Maurice Burns) in his statement. He said, the notice " was constructed in this manner to give sufficient indication that a child protection case was being investigated and yet not reveal the full nature of the concerns raised thereby adversely affecting the investigation being conducted by all the agencies involved. In my experience, having attended numerous child protection strategy meetings, it is usual for the investigating agencies to request Ofsted not to reveal the exact nature of the allegations. By revealing too much information at an early stage may lead [sic] to the identification of the child making the allegation, and therefore give the persons under investigation an opportunity to interfere with the conduct of the enquiries being made".
9. It was further said to us that, " Derbyshire Social Services Department itself had been very clear that the Respondent should not disclose details of the allegations against the Applicants, as this would be likely to prejudice the enquiries that they were making. In particular, on 20th July 2005 Derbyshire Social Services informed the Respondent that if the Respondent considered it to be necessary to reveal the details of the allegation in question, Social Services would take legal advice with a view to preventing the Respondent from so doing"
10. On the 14^th July the Appellants lodged their appeal against their suspension. They stated their commitment to continuing child minding and provided a number of statements from parents of children minded by them who were strongly in support of the Appellants. The Respondent filed a response and submitted a number of statements from its officers outlining why the decision had been taken and the reasons for non disclosure of the details of the allegations. The hearing was fixed for 5^th August 2005.
11. The Appellants attended at the appeal hearing on 5^th August 2005, against suspension of their child minding, knowing no detail about why their registration had been suspended.
12. In addition the Tribunal had no information about what was being alleged. The Respondents indicated that they were prepared to give details to the Tribunal but not to the Appellants. We did not consider that this was a satisfactory or fair way to proceed. After hearing submissions form both parties, a phone call was made to Derbyshire Social Services. They agreed that the following information could be given to the Appellants 'that the allegation was against Mr. G and was of abuse of a sexual nature; the matter was being investigated by the Police'.
13. Clearly the Appellants had been unable to prepare evidence in respect of the allegation. A number of parents whose children were minded by the Appellants attended to give evidence in support of the Appellants. To avoid their re-attendance we heard their evidence in support of the Appellants. They all spoke of the Appellants competence as child minders and their satisfaction with the service that the Appellants provided.
14. The Respondent had been informed that various interviews were about to take place by the investigating bodies. We therefore adjourned the hearing to 21st September 2005 for the investigations to be completed and the full nature of the allegations to be disclosed to the Appellants. As noted above the matter was withdrawn by the Appellants following the lifting of the suspension on 19^th September 2005. We understand that no further steps are to be taken by the authorities.
15. The facts of this case raise the conflict between the rights of the Appellants to know the basis of the case against them and the child protection team's desire to have time to investigate and take statements especially from young and vulnerable witnesses before the Appellants are told of the allegations.
16. We understand that individual Social Service Departments have a protocol for such investigations and that they defer to police advice regarding what can and cannot be disclosed to the person being investigated.
17. We were told that the Respondent liaises with the Police and Social Services on child protection matters. It shares and receives information with those agencies in accordance with departmental guidance e.g. 'Working together to safeguard children – a guide to inter-agency working to safeguard and promote the welfare of children' 1999 and the recent consultation paper 'Cross Government Guidance – sharing information on children and young people' August 2005.
18. In addition the Respondent has a protocol which sets out the type and manner in which such information is shared between itself and local authority Area Child Protection Committees. We have not had the benefit of seeing that document.
19. We appreciate that there must be free and full sharing of information between the agencies on such matters and that one agency may ask the other to keep information confidential. However in circumstances such as these, where an appeal against suspension has been listed for hearing by the Tribunal, some guidance is required for the appellants.
20. Suspension of registration is a serious step. It is not clear why the limited additional information given to the Tribunal at the hearing could not have been given to the Appellants earlier. We suggest that the Respondent prepares guidance for Appellants in these circumstances to explain the child protection procedures and protocols; and to encourage them to seek advice and support.
21. Further where a case such as this, comes before the tribunal, then we consider the Tribunal should have the details of the matter even if it has to be kept confidential from the Appellants. The Tribunal should be given details, from the police/social services, about the timetable for investigation and the reasons why the person under investigation should not be told what has been alleged against him or her.

APPEAL DISMISSED UNDER REGULATION 8(3) OF THE CHILDMINDING AND DAYCARE

(SUSPENSION OF REGISTRATION)(ENGLAND) REGULATIONS 2003.

Rev Maureen Roberts. Chairman

Ms Janice Funnell

Ms Bridget Graham