England and Wales Care Standards Tribunal

SB v OFSTED [2005] EWCST 605(EY-SUS) (21 December 2005)

S.B. - Appellant

v.

OFSTED - Respondent

[2005] 605.EY-SUS

Before

Rev. Maureen Roberts

Miss Gillian Mac Gregor

Mr. Michael Jobbins

Heard on the 15th of December 2005 at the Old Hall Hotel Buxton.

The Appellant was represented by Mr. Green of Cooper Sons Hartley and Williams Solicitors of Buxton. We heard evidence from the Appellant.

The Respondent was represented by Ms Kate Olley of Counsel instructed by Ms Sally Leigh Jones of the Treasury Solicitor. For the Respondent, the tribunal read a number of statements and heard evidence from, Ms Susan Aldridge Team Manager in the Compliance Investigation and Enforcement team in the Midlands region, Mrs. Elaine White Area Manager in the Midlands region, Mrs. Diana O' Brien Team Manager in the Midlands region and Ms Jacqueline Tyas Child Care Inspector in the Midlands region. We also read a statement of Mr. Thomas O'Neil Team Manager in the Compliance Investigation and Enforcement team in the Midlands region.

1. The Appellant appeals to the tribunal against the Respondent's decision dated 24th November 2005 to suspend her registration, as a child minder for six weeks until 4th January 2006.
2. Orders were made at the commencement of the proceedings under Regulations 18 and 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, restricting the reporting of the proceedings and excluding members of the public and the press. We are satisfied that these orders are necessary in this case to safeguard the welfare of the children and the private life of the people involved in this matter. We believe that the orders should continue and therefore individuals, except professional witnesses, are referred to in this decision by initials only. Under regulation 27(3), the decision will be published with the Appellant's name reduced to her initials.

The background

3. The Appellant, a 69 year old married woman, has fostered children in the past and has been child-minding and looking after children for 36 years. Her current registration dating from 1980, allows her to look after six children. In fact she minds four children during term time and looks after up to six children in school holidays. The Appellant described to us her normal daily routine in term time.
4. The children are dropped off at her house in the morning. She takes the older children to nursery and then has one child aged two by himself until midday when she picks the children up from nursery and brings them home for lunch. She looks after the children until they are picked up at various times; the last going at between 6-00pm and 6-30pm. Mr. B, a man aged 84, who was a lodger with the Appellant for over 20 years came practically every day for his lunch. He moved into sheltered accommodation some 6 years ago, but remains a family friend.

Events leading to the issue of the Notice of statutory suspension.

5. On 10th October 2005 a female child aged four (ES) whom the Appellant looked after, told her father on the way home, "I have seen A's willy today". This was a reference to the family friend Mr. B. The child's mother telephoned the Appellant early the next morning, 11^th October 2005, to tell her what ES had said. The Appellant and the father of ES spoke about it that evening. The Appellant said that she told the father that it must be reported to Social Services. We were not told any further details of that conversation.
6. The next morning on 12th October 2005, ES's mother rang the Appellant and asked the Appellant to meet her at the nursery. This the Appellant did, and they then both attended at Social Services at 9-30a.m. and gave a report to the duty officer. The Appellant said to the Duty Officer that she would ensure that Mr. B would not come into her house while child minding was taking place.
7. On the afternoon of 13th October 2005 the Respondent received information from Social Services stating that a child minded by the Appellant had disclosed information that raised an issue of a child protection nature.
8. The matter was investigated by Derbyshire Social Services and the Police in the first instance. On the 17^th October 2005 the Respondent asked the Appellant to sign a voluntary agreement undertaking that Mr. B was not to be on the premises whilst child-minding was taking place. The Appellant agreed to this on the afternoon of 17th October 2005 and signed the agreement on 20th October 2005 when it was delivered to her by a Child Care Inspector.
9. On 24th November 2005 the Respondent held a case conference as the voluntary agreement was about to expire. New information was available to the Respondent including a verbal report as to the nature of the incident and an indication by the police that no further steps were going to be taken.
10. At the case conference, it was noted that the Appellant had met Mr. B in town with a minded child before the voluntary agreement was put in place. There was concern that despite the Appellant knowing that there were concerns of a child protection nature that had been made by a minded child about Mr. B she had met with him.
11. Following the case conference it was decided to serve a notice of suspension on the Appellant. This was a done by a notice dated 24th November 2005 which said, " the reasons for Ofsted suspending your child care service is that a child protection allegation was received from Social Services regarding a regular visitor to your house. On the basis of the information available to you, you failed to demonstrate your ability to protect children from harm…"
12. By a fax dated 28^th November 2005 the Appellant's solicitors applied to have the suspension lifted. The Respondent refused to lift the suspension in a letter dated 2^nd December 2005. The letter stated, inter alia, "Despite knowing that allegations of a child protection nature had been made by a minded child against Mr. B, a family friend and regular visitor to the registered premises, Mrs. SB took a minded child with her to see Mr. B on the morning of the 17 October 2005, prior to the voluntary agreement being put in place." In addition "During a telephone conversation on 24^th November 2005 with Sue Aldridge Mrs. SB twice denied that she had met with Mr. B with minded children."
13. The letter concluded, "After reviewing the information you sent to us and new information we have received, that Ofsted are now required to investigate, we can see no evidence to suggest that the reasons for the suspension have changed. We are now in a position to conduct our own investigation into these matters and will be arranging to meet with Mrs. SB to discuss them with her." The Respondents' carried out a lengthy interview with the Appellant on 8th December 2005. We had a note of that interview.

The Law.

14. Section 79 D of the Children Act 1989 ("the 1989 Act") provides as follows,

(1) No person shall –

(a ) act as a child minder in England unless he is registered under this Part for child-minding by the Chief Inspector;…

15. Under section 79 H of the 1989 Act, the Secretary of State has a power to make regulations to provide for the registration of any person for acting as a child minder or providing day-care to be suspended for a prescribed period by the registration authority in prescribed circumstances.
16. In England the registration authority is the Her Majesty's Chief Inspector of Schools in England (the Respondent – OFSTED): section 79B (1) of the 1989 Act. The Regulations which have been made under section 79 H(1) of the 1989 Act are the, Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 ("the Suspension Regulations").
17. Regulation 3 of the Suspension Regulations, 'Power to suspend registration' provides as follows:

The Chief Inspector may, in accordance with regulations 4, 5, 6 and 7, suspend the registration of any person acting as a child minder or providing day-care if he has reasonable cause to believe that the continued provision of child minding or day care by that person exposes or may expose one or more of the children to whom it is or may be provided to the risk of harm and the purpose of the suspension is for one or both of the purposes set out in paragraph (2).

(2) The purposes of the suspension are –

(a) to allow time for the circumstances giving rise to the Chief Inspector's belief to be investigated;

(b) to allow time for the steps to be taken to reduce or eliminate the risk of harm.

18. In accordance with decided cases in this jurisdiction the tribunal accepts that post decision facts can be made available to the tribunal. The meaning of 'reasonable cause to believe' falls somewhere between 'the balance of probability test' and 'reasonable cause to suspect'. We agree that the belief is to be judged by "whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child might be at risk".

The Evidence

19. We read the statements provided and heard from the witnesses listed above.
20. The Respondents' officers gave evidence as follows:

a. When it was first informed of the allegation, it took the initial steps with the voluntary agreement to try to ensure that the Appellant could continue with her child-minding work and at the same time protect the children being minded by her.

b. By 24th November 2005, when the case conference was held, details of the allegation had been given verbally to the Respondent. We noted that these details were confirmed in a letter from Derbyshire Social Services to the Respondent dated 29th November 2005. The letter from Social Services described in considerable detail the alleged incident involving ES and Mr. B. The allegation was very serious. The child had been interviewed by way of video link. The Police confirmed that they had decided not to take further action. The letter from the Derbyshire Constabulary dated 30^th November 2005 stated," the CPS have come to this decision as a result of the alleged victim's father not wanting her to have to go through the ordeal of a criminal trial."

c. The Respondent's witnesses agreed that there had been no breach of the voluntary agreement signed by the Appellant namely, that Mr. B should not go to her house whilst minded children were there.

d. The Respondent was concerned about the delay on the part of the Appellant in reporting the incident. The Appellant was first told on the morning of 11th October and the matter was not reported until the morning of 12th October. The Respondent was also concerned that the Appellant had spoken to Mr. B about the allegation before reporting it to Social Services. It had been told that the Appellant had offered to act as the appropriate adult for Mr. B when he attended police station to be interviewed. In the event someone else had acted as the appropriate adult as the police did not think that the Appellant should perform this duty.

e. The Respondent said that the Appellant, in a telephone conversation with one of its officers on the 24^th November 2005, had twice denied that she had met with Mr. B with minded children.

f. The Respondent had been made aware of a possible earlier allegation against Mr. B. This had been reported by a social worker to one of the Respondent's inspectors. No file had yet been found for this alleged incident.

g. Following the interview on 8th December 2005 the Respondent considered that the Appellant had been evasive in some of her replies throughout their investigation and that she had changed her evidence or not been clear from time to time. For example about the number of times that she had met Mr. B after the allegation was made.

h. The Respondent was concerned that the Appellant on more than one occasion stated that she did not believe the allegations about Mr. B. This, it was felt, demonstrated the Appellant's inability to remain objective about the situation and therefore cast doubt on her appreciation of the seriousness of the allegations and the child protection issues that arose from it.

21. The Appellant gave her evidence as follows:

a. She confirmed to the Tribunal that she had been looking after children for a considerable length of time. She considered that she had taken steps immediately to inform Social Services once she knew about the allegation. She felt it was appropriate to speak to the father of ES on the evening of 11th October 2005before reporting it to Social Services on 12th October 2005. We note that it was the mother of ES who actually made the appointment with Social Services and that she and the Appellant attended it.

b. The Appellant said she was well aware of the National Standards in respect of child-protection and confidentiality.

c. With reference to her meeting Mr. B on 17 October 2005, she explained that she had gone to a cafe in Buxton and that Mr. B had come into the cafe by coincidence. This had happened on the morning of 17th October 2005 before the voluntary agreement was signed. The meeting was not by pre-arrangement.

d. She acknowledged that Mr. B was a long-standing family friend and that he had been a lodger with her for over 20 years before he had moved into sheltered accommodation some six years previously. He was in his mid-Eighties and while physically rather frail was mentally quite alert. She admitted that she had told him about the allegation before she had reported it to Social Services and that she had gone to the police station with him intending to act as his appropriate adult. She made its clear that he had never come to the House after the 11th October 2005. She said that he used to telephone her home five or six times a day just for a chat. She said that it was difficult to stop him doing this.

e. When the Appellant was asked about the earlier allegation she said that there had been an allegation involving Mr. B, at the beginning of 1999 when Mr. B had been a lodger. However she did not know the details about it and considered that it had been caused by malice resulting from a family feud. She remembered the social worker at the time assuring her that no steps were going to be taken and that the matter had been resolved.

f. The Appellant felt that throughout the proceedings she had not been kept informed about what was happening. There had been a number of officers involved in the investigations and visits to her home.

Conclusions.

22. We accept that the Respondent's witnesses and the Appellant were telling the truth to the Tribunal. In particular whatever confusion there may have been in previous statements the Appellant was quite clear about what she did in response to the situation involving ES, what she had said to Mr. B and her meeting with him on the 17^th October 2005. We further note that all the parents who place children with the Appellant, including the parents of ES have been overwhelmingly supportive of her and have written to the Respondent on her behalf.
23. The tribunal reminded itself that this is an appeal against suspension and that no final decision has been made. The decision by the Respondent to suspend the Appellant's registration does not mean that she's not a good child minder. The purpose of a suspension is to allow investigations to be carried out by the Respondent as provided by the Suspension Regulations.
24. The allegation made in this case was of a serious nature. Respondent's first duty is to the children being cared for and we appreciate that Respondent wishes to conclude its investigations and, possibly, to get further information about the earlier allegation. We also understand the Respondent's concern about the Appellant's consistency in reporting her contact with Mr. B and her objectivity about what was being alleged of Mr. B. On that basis we are dismissing the appeal and confirming the Respondent's decision to suspend registration.

Observations arising from the circumstances of this case.

25. This case highlights, again, the problem the Respondent faces about giving information to a child minder in a suspension case. Where an allegation is made of misconduct, particularly if it is one of sexual misconduct, involving a minder, visitor, family friend or family member, the Respondent is put in a difficult position. It is not normally the lead investigating agency and it therefore has to rely on information given to it by Social Services and the Police in confidence. Invariably Social Services and the Police have a local protocol for the sharing of such information with the Respondent. This is on the basis that all information is kept confidential and not revealed to third parties, including the child minder, prior to their investigation being completed. If the Respondent has to take steps, for example, by suspending registration it is not always able to give details of the reasons why it is doing so to the child minder. In this case, we appreciate the Appellant did know the nature of the allegation.
26. We would respectfully suggest that the Respondent could, on such occasions, write a letter to the child minder at or before the time of suspension to explain the protocol and how the matter is to be investigated by the various agencies without breaching confidentiality. This would at least reassure the child minder of the procedure being followed and why initially, very little or no information can be given to him or her.
27. Consideration could also be given to allocating one named officer from the Respondent's office to be the contact point for the child minder whilst the investigation and other steps were being taken. We noted that nine officers of the Respondent have been involved in this investigation so far. Eight of those officers have visited the Appellant's home on various dates during the proceedings. If a child minder in this situation had one point of contact in the Respondent's regional office this would allay fears, avoid confusion and, possibly, aid the investigation by the Respondent.
28. Child minders provide an essential service for the community at a reasonable cost; any suspension causes disruption for the child minder, parents and children alike. Whilst we appreciate that it is not the Respondent's responsibility to provide training for child minders we consider that they, in conjunction with Social Services and other educational and voluntary bodies, could encourage support and training for child minders.

The appeal is dismissed. Our decision is unanimous.

Rev Maureen Roberts

Miss Gillian Mac Gregor

Mr. Michael Jobbins

21^st December 2005