England and Wales Care Standards Tribunal

 
APPEAL
No: [2005] 0618.EY-SUS
MP v OFSTED
Before Mr Laurence J Bennett (Chairman) Ms Bridget Graham Mr David Allman

Heard at Penkridge

On 17 January 2006

Appeal

1. MP appeals under Paragraph 8(1) of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 against the decision of Her Majesty's Chief Inspector of Schools in England (OFSTED) to suspend her registration to act as a child minder.
2. OFSTED suspended MP's registration initially for a period of six weeks from Friday, 4 November 2005 to Friday, 16 December 2005 subsequently extended to 28 January 2006.

Representation

3. MP was represented by Mr Owen Williams, Counsel instructed by Thomas Graham Solicitors.
4. OFSTED was represented by Ms Lisa Busch, Counsel instructed by the Treasury Solicitor.

Preliminary

5. On 6 January 2006 the President of the Tribunal His Honour Judge David Pearl made directions for the hearing of the appeal.
6. At the opening of the hearing Mr Williams applied under Paragraph 14(4) of the Protection of Children & Vulnerable Adults & Care Standards Tribunal Regulations 2002 (the Regulations) for the late admission of seven letters of reference from parents of children minded by MP. Ms Busch did not object. We allowed their inclusion.

Restricted Reporting Order

7. We concluded that an order under Paragraph 18 of the Regulations is appropriate in the interests of the welfare of children and protection of the private lives of those involved and made order prohibiting 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, of any matter likely to lead members of the public to identify MP or a member of her family or any child or member of their family in relation to these proceedings.

The Law

8. a Section 79D of the Children Act 1989 (the 1989 Act) provides:

(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;

b. Section 79H(1) of the 1989 Act states that:

Regulations may 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.

c. By Section 79B(1) of the 1989 Act the registration authority In England is the Her Majesty's Chief Inspector of Schools in England, the Respondent, OFSTED.

d. The Regulations made under Section 79H(1) of the 1989 Act are the, Child Minding and Day Care (Suspension of Registration)(England) Regulations 2003. Relevant paragraphs:

3(1) 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).

3(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 steps to be taken to reduce or eliminate the risk of harm.

4(1) ……….. The suspension shall have effect for a period of 6 weeks ………

4(2) Subject to paragraph (3) the exercise of the Chief Inspector's power to suspend a person's registration shall not prevent any further exercise of that power, at any time, on the same or different grounds and in particular where –

(a) the investigations being carried out or the steps to be taken under sub-paragraphs (2)(a) or (2)(b) respectively of regulation 3 are incomplete, or

(b) the Chief Inspector has decided to take action against the registered person under section 79K (emergency application to court).

9. We determined that the appropriate standard of proof was as adopted by the Tribunal in Mrs LM v OFSTED [2003] 181 EYSUS and subsequently followed in K v OFSTED [2003] 191 EYSUS. "Reasonable cause to believe" falls somewhere between the balance of probability test and "reasonable cause to suspect." 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.
10. The burden of proof falls upon the Chief Inspector as he is aware of the facts upon which he based his decision. The Appellant may not have this information.

Facts

11. MP is a registered child minder. At the time of the incident children whom she minded included three of seven children from one family, R, W and J, born 12 February 2002, 18 April 2000 and 15 February 1999 respectively.
12. MP was required to take W and J to a nearby school. On 3 November 2005 a teacher at the school noticed an injury to W's ear. School contacted Social Services, who in turn notified OFSTED.
13. A note of a case conference about "Provider: MP" which took place on 3 November 2005 at 4.00pm and involved Mrs Karen De-Lastie, OFSTED's Area Manager, Ms Sue Aldridge, CIE Team Manager and Mrs Caroline Dale, CIE B2 records that: "SS called to report an allegation that the CM had pulled a minded child's ear, resulting in blood in the ear. Teachers questioned the child and his brother, who stated that the CM had pulled the child by the ear into a cold room." It identified the issues as "Alleged Breach of NS 11/Reg 5 – use of physical punishment." Included in the noted decisions: "Decision to issue voluntary suspension at first instance as there is no reason to suspect that CM would not co-operate."
14. Notes of a second case conference which took place on 4 November 2005 involving Mrs Elaine White, OFSTED's Area Manager, Ms Aldridge and Mrs Dale identifies the issues as "Alleged breach of NS 11/Reg 5 – use of physical punishment and MP's refusal to sign voluntary suspension therefore conference to agree on next course of action." This is stated to be new information as: "CM has refused to sign voluntary suspension as she stated she would be unable to claim compensation. CM not minding children and has informed parents of the suspension." It records the following decisions: "The risk to minded children based on the information received is still high. Decision taken to issue statutory suspension to eliminate risk. CCI has gained contact details for parents (10 children on roll) so letters informing parents can be sent without delay…. "
15. Notice of statutory suspension was sent to MP on 4 November 2005 for a period of six weeks until Friday, 16 December 2005.
16. Notes of a case conference dated 14 December 2005 involving Mrs White, Ms Aldridge, Mrs Dale and Mrs Sarah McKenna (CIE B2) considered a request that the suspension be extended. It identified an issue: "Reg 3(1) and (2) – suspension of CM as reasonable cause to believe serious risk of harm." The decisions taken include: "The risk to minded children based on the information received is still high. Decision taken to extend statutory suspension to eliminate risk until investigation complete. CM has stated that she knows the allegations but that these have not been officially confirmed to her and that she is aware that it is a Social Service investigation. Social Services have stated that the police may become involved. They have stated that the investigation is ongoing. Therefore agreed that the risk to children remains high and that until the investigation is complete, the suspension should remain in place as the situation has not changed from the initial suspension. Agreed that SS needed to be aware of the fact that the case needs to be completed as quickly as possible due to the delays already incurred due to SS leave, illness and unavailability. Also to request whether we can update the CM as to the allegations and the outside agency as she is aware of the issues. CM has confirmed that she is not minding children and parents have also phoned to request information as to when she will be able to care for them again. Letters of support have been sent to the AM."
17. Notice of continued statutory suspension was sent to MP on 14 December 2005 for a further period of six weeks from Saturday, 17 December to Saturday, 28 January 2006.
18. OFSTED accepts that MP has not breached her conditions of suspension and has not derived income from child minding during that period.
19. Mrs White and Mrs Dale said at the hearing that OFSTED investigations continue although Social Services enquiries have ceased as MP is not currently child minding. The police who are the lead agency are continuing their enquiries. Following parental consent, the children were interviewed on Friday, 13 January 2006 under the Memorandum of Good Practice procedures and their mother was to be interviewed on 17 January 2006. A paediatrician has provided medical evidence. Mrs White anticipated that MP will be interviewed by police within the next two weeks. She said that there is a further allegation which police are investigating in their current enquiries. Details of the further allegation remain confidential.
20. A letter dated 10 January 2006 from Ms Anne-Marie Large, Detective Sergeant, Child Abuse Investigation Unit, Staffordshire Police confirms that they are "Currently carrying out an investigation concerning MP" and detailed that "This inquiry is ongoing and has been delayed due to the fact that the police work in partnership with Social Services when conducting professional abuse investigations. The mother of the child concerned was seen last week and has confirmed that she wishes to pursue a criminal complaint."
21. Mrs Dale and Mrs White both said they had contacted Social Services and Police frequently to check on the progress of their enquiries. Mrs White said that OFSTED will carry out its own investigation of MP's suitability. This will involve an interview with her. The investigation has yet to start because of the risk of prejudice or jeopardy to police enquiries. They referred to the OFSTED Early Years Protocol under which multi-agency enquiries are managed.
22. MP does not accept that W's injury was a consequence of anything she did or which happened whilst within her care. She believes that any injury must have been caused after he arrived at school or the result of his interference with an existing scab. SM, a registered nurse and mother of one of the children whom MP minds saw her with W at the school on the relevant morning but did not observe an injury or blood on him. KE, another registered child minder was told by one of the children in her care that W "had a scab in his ear and that he picked it – making it bleed and was going to say that MP had done it!"
23. References provided by parents of children minded by MP are supportive and express confidence and lack of concern about her abilities, services and trustworthiness.

Submissions

24. In a statement of reasons for opposing the application OFSTED includes: "Inquiries are presently being conducted by the police and their investigation is ongoing. The continued suspension should be upheld as:

(i) the information provided to the Respondent was such as to give it reasonable cause to believe that the continued provision of child minding by the Applicant may expose one or more children to the risk of harm; and

(ii) the continued suspension is for the purpose of allowing time for investigation of the circumstances giving rise to the belief that children may be exposed to a risk of harm.

The risk of harm is present. If the allegation is found to be correct, the Applicant will have acted in a manner which gives rise to a risk of harm in children under her care. It is not appropriate to at this stage seek to prove the factual allegation which OFSTED are in the course of investigating and deciding upon. It is neither possible nor appropriate for the CST to seek to determine that issue now. The issue is only as to whether OFSTED have reasonable cause to hold the belief described above."

25. Ms Busch referred to OFSTED's reasons for opposing the appeal and focussed on the key issue of whether there is risk of harm to a child. She submitted that procedural delays were a concern but a secondary issue to the question of risk to a child. Such delays were not so excessive that they reflect on the nature or likelihood of risk. She reflected on the gravity of the allegation and that additional evidence had become available from a paediatrician. Investigations continue and include another allegation.
26. Mr Williams submitted on behalf of MP that it was accepted that the allegation was serious and if established indicated potential for further harm to a child but that there is no substantiating evidence. The allegation is contested by MP and evidence of other parents is to the contrary. There is no reasonable cause to believe that the lifting of the suspension would expose children to the risk of harm. He commented on delay by other agencies and stated that it "beggared belief" that some ten weeks after the incident, Police had only now decided to interview a five-year old child. He suggested that the case for suspension had not been made out.

Tribunal's conclusions with reasons

We have carefully considered the written and oral evidence and submissions.

Our conclusions are:

a. The parties accept that police are investigating allegations involving injury to a child. It is clear there has been multi-agency interest and involvement, initially led by Social Services, now led by police. We note from Mrs White that OFSTED will initiate their own investigation but have in accordance with the inter-agency protocol decided that it cannot be undertaken until such time as police indicate it appropriate. We accept the underlying concern that a parallel investigation by OFSTED at this time might prejudice police enquiries.

b. We conclude from the details given that the allegations could lead to criminal charges and are relevant to compliance with National standards and suitability for registration as a child minder. We accept that the allegation is serious and if proved indicates that children for whom child minding is provided, are at risk of harm. We note that a further allegation is included in the enquiry.

c. We have noted the length of time the enquiry has been in hand and the acknowledged delay. At the time of the hearing some interviews have been completed and the enquiry continues. We accept the enquiry is neither frivolous nor that the allegations are bound to fail. We would, however, draw attention to Lord Justice Scott Baker's judgement in Regina v Powell, Court of Appeal reported in The Times on 17 January 2006.

d. MP contests the allegation and has provided evidence which she considers indicates it is unfounded. However, as noted at c. the investigation continues and statements have been taken from individuals directly involved, including the children. It is neither possible nor appropriate at this stage for us to reach a conclusion about the underlying allegation.

e. Following our conclusions about the gravity of the allegation, the continued appropriateness of the enquiry and the prospect of additional allegations being made, we conclude there is reasonable cause to believe that continued provision of child minding by MP may expose a child to risk of harm. We accept that the suspension was properly and lawfully made to allow time for circumstances giving rise to allegations to be investigated and its continuation is appropriate.

f. Our unanimous decision is that the suspension should continue in accordance with the Notice of suspension dated 14 December 2005.

Order

MP's appeal dismissed.

Date: 23 January 2006

Signed:

Mr Laurence J Bennett

(Chairman)

Ms Bridget Graham

Mr David Allman