First-tier Tribunal (Health Education and Social Care Chamber)

 


In the First-Tier Tribunal (Health, Education and Social Care)
RC (Appellant) -v- OFSTED (Respondent) [2008] 1339.EY - Before - Tony Askham (Nominated Tribunal Judge) David Cook (Specialist Member) Judith Wade (Specialist Member) Decision

Heard on 16, 17 and 18 December 2008 at the Tribunal Service, Dukes Keep, Marsh Lane, Southampton.

Representation

The Appellant appeared in person.

For the Respondent: Simon Murray (Counsel) Alexandra Lewenstein (Solicitor, Treasury Solicitors).

Appeal

1. The Appellant appeals under Section 79M of the Children Act 1989 against the decision of the Respondent to cancel her registration as a child minder. This appeal proceeds under the transitional provisions relating to the Childcare Act 2006 which came into force on 1 September 2008. The appeal proceeds as provided for in the Childcare Act 2006 (Commencement number 5 and Savings and Transitional Provisions) Order 2008 paragraph 18.

Preliminary Issues

2. At the commencement of the hearing we concluded and ordered that the hearing would be held in private in accordance with Regulation 29.

The Evidence heard (16 December 2008)

3. We heard evidence of JC, a Child Minder, who gave evidence for the Appellant.
4. We heard evidence of CS, a Child Minder, who gave evidence on behalf of the Respondent.
5. We heard the evidence of JV, a Child Minder, who gave evidence on behalf of the Respondent.
6. We heard evidence of Debbie Turner, the Field Area Manager of the Respondent.

The Evidence heard (17 December 2008)

7. On 17 December 2008 we heard evidence from TG (a child minder) on behalf of the Respondent.
8. We heard evidence from GC (a child minder) on behalf of the Respondent.
9. We also read the witness statements of:

Lorraine Sparey, a Child Care Inspector of the Respondent.

Michael Dwyer, a Case Officer of the Respondent. This Statement had attached to it a number of interview notes of interviews he had conducted with witnesses in this case. We read those Statements which were from CS (a child minder) AC and LC (who are child minders) MP (a parent) JC (a child minder) GP (a parent) an anonymous Statement from a child minder, an anonymous Statement by a parent and from Heidi Rehman (a Child Care Coordinator with NCMA).

Tonia Chillcott, a Child Care Inspector for the Respondent.

Lisa Ellis, a Child Care Inspector for the Respondent.

10. We commenced hearing the Appellant's evidence.

18 December 2008

11. We completed the Appellant's evidence.
12. We read the Witness Statement of ST, a Child Minder, who gave evidence on behalf of the Appellant.

The evidence before the Tribunal

13. Before her suspension which gives rise to this appeal, the Appellant had been registered initially as a Child Minder by the Local Authority in 1998. Registration inspection duties transferred from the Local Authority to the Respondent in September 2001. The Appellant's registration allowed her to care for no more than five children under eight years old, of these no more than three may be under five years old, and of those no more than two can be under one year at any one time.
14. The Appellant was formally inspected by OFSTED in July 2005 when her provision of child care was deemed to be good and her provision of nursery education satisfactory. The evidence suggested that as nursery education was a new area and there was no evidence of the Appellant having delivered it, that was the standard assessment outcome awarded at that time.
15. From June 2004 through to March 2008 a number of issues were raised which primarily related to the Appellant's behaviour management methods. In this Decision we will set out each of those incidents and the facts which we heard and our conclusions on the facts. It is worth recording in the overview of the evidence that in addition to the formal inspection which OFSTED carried out in 2005, for the last two or three years the Appellant was also seen every three months at her home and at a group situation once a month by Heidi Rehman, the NCMA Coordinator, so it is apparent to us that the Appellant was in recent years subject to a fair degree of oversight and supervision.
16. The final incidents occurred in March 2008. They both involved a two year old boy who has learning difficulties and communication difficulties. Debbie Turner first became aware of the situation on 13 March 2008 when OFSTED received a phone call from a Child Minder who at that stage wished to remain anonymous expressing her concerns about two separate incidents which had occurred at the local toddlers group. These two incidents had occurred on 6 and 13 March 2008. Ms Turner was able, with the aid of the OFSTED computer system, to review the history of the previous concerns regarding the Appellant and, having considered all of these previous concerns and the March allegations, Ms Turner told us she was alerted to the fact that the Appellant's behaviour demonstrated a pattern of possible non compliance with National Standard 11 (behaviour). As a result she made the decision to suspend the Appellant's registration in order to allow time for OFSTED to investigate the matter fully and to protect children from the risk of harm. In addition, in accordance with the protocol, the investigation was carried out by the Local Authority's Children Services Department with whom it was decided to share information. The Appellant was notified of her suspension in a letter of 14 March 2008. The Appellant immediately requested the lifting of that suspension by letter on 15 March 2008. Rather than in any way dispelling Ms Turner's concerns about the situation, the Appellant's letter of 15 March 2008 raised further concerns because the letter failed to acknowledge that the Appellant might have used inappropriate behaviour management methods towards the child concerned in the March incident. Ms Turner's Statement said "the Appellant did not recognise the force used to make the boy drink was unnecessary: in fact she denied any force was used at all in relation to the child." As a result Ms Turner made the decision to refuse the request to lift the suspension. Consequently the Appellant appealed to this Tribunal against the suspension. As there had been no possibility of a full inspection by OFSTED, given that under the protocol Social Services were investigating, it was decided by OFSTED to oppose the appeal. There were a number of case conferences and case reviews. In our view OFSTED were right to suspend the Appellant at the time.
17. The Appellant's appeal against her suspension was heard before this Tribunal (differently constituted) [RC –v- OFSTED [2008] 1272.EY/SUS] when this Tribunal adopting the standard reasoning of this Tribunal concluded that the suspension should continue until the investigation was completed. We note in that Hearing Ms Turner, having listed the options which might be available to OFSTED, concluded "we are not considering cancellation of the Appellant's registration at present." That Hearing took place on 9 April 2008.
18. That Hearing fell in the middle of a case review which had been commenced on 8 April 2008 and was completed on 10 April 2008. It appears that on or about 8 April 2008 the Children Services Department of the Local Authority communicated to OFSTED that they were taking no further action as, in its view, there were no child protection issues arising.
19. At the case review on 8 and 10 April 2008 Ms Turner told us that those present examined a Report prepared by Lisa Ellis and Lisa Cupples, both Officers of OFSTED, of their visit to the Appellant and discussed several avenues of enquiry. Ms Turner told us they did not come to any conclusions at the case review but they had already formed the view that all allegations had built a history of similar concerns which specifically related to managing children's behaviour appropriately by the Appellant and indicating that emotional distress to the children was involved. She went on to say that at that case review they considered that the Appellant appeared to maintain her practice with children was the best way of doing things so there was a low chance of adjusting it. As a result, OFSTED decided to continue their investigation. It appears strange to us looking at the notes of that review, and hearing and reading Ms Turner's evidence that Ms Turner was able to tell this Tribunal on 9 April 2008 that OFSTED were not considering the cancellation of the Appellant's registration at that time. Whilst we accept that no formal inquiry had in fact been undertaken by OFSTED Ms Turner's view of the situation appears to us to have been clear from that time onwards.
20. Rightly given the information which had been provided by the Appellant, OFSTED put in hand a number of enquiries. Two of its Officers Gillian Noble and Michael Dwyer interviewed two Child Minders who had attended the same toddler group as the Appellant and spoke to a parent of a minded child. Having discussed the results of these interviews OFSTED thought they needed further information and continued the Appellant's suspension.
21. By 2 May 2008 Mr Dwyer had taken Witness Statements from members of public, parents, child minders and the Child Minding Support Worker and OFSTED concluded that their investigation was completed. The case review was held to consider the evidence which had been gathered and to conclude the matter. We had read the Minutes of that meeting and heard Ms Turner's evidence about it. OFSTED considered a number of options. First they considered whether a Compliance Notice could be issued but they felt this avenue had already been exhausted without a long term positive effect. They noted that in 2005 they had recommended the Appellant devise an action plan and in 2007 they had set out actions in relation to National Standards 3 and 11. Although The Appellant had previously met actions and completed several training sessions, it was their view she was not able to implement the results into practice. Ms Turner's evidence was that this was "clear". Ms Turner in particular felt that the Appellant did not understand that what she was doing was wrong in respect of her behaviour management of minded children. It was decided that a Compliance Notice, set around behaviour management, would be difficult to measure and would not be effective and she therefore decided that a Notice was not an appropriate solution. She then considered imposing a condition to exclude some age groups of children from the Appellants conditions of registration as she thought the evidence suggested that the Appellant was unable to cope with the developmental behaviour of children in the two to four age group. There were particular complaints regarding potty training and this suggested that the Appellant did not know how to manage this aspect of children's progress, and she also had difficulty in understanding young children's needs, letting them cry, be upset and distressed. Ms Turner considered that the information about this was "consistent and coherent". Ms Turner was again struck by the fact that the Appellant did not admit any wrong on her side but accused parents of wishing "to ruin her business". She felt this lack of reflection showed that the risk of harm would apply to children of all ages in her care. She therefore concluded that age restriction would be inappropriate.
22. As a result, she concluded that the evidence confirmed that the Appellant was not a suitable person for child minding and her registration must be cancelled. Ms Turner's evidence suggested that whilst there were witnesses who were supportive of the Appellant they had not actually seen any of the alleged incidents "for a variety of reasons". However she was struck that the witnesses in the past, and those who had seen the March incidents, were very seriously concerned. In particular she seemed to be very taken by a parental letter of complaint following an early OFSTED investigation which concluded no further action was to be taken. She concluded that the reoccurrence of similar allegations and the distress that witnesses had articulated was "compelling evidence". She therefore made the decision to cancel the Appellant's registration.
23. The Appellant wrote to OFSTED objecting to the intention to cancel. As a result a panel was convened on 23 June 2008 to consider the objection. The Appellant attended by telephone. The panel concluded that the Appellant's objections should not be upheld and, as a result, the Appellant lodged an appeal to this Tribunal which resulted in this Hearing.
24. Due to OFSTED's serious concerns and their intention to cancel, further periods of suspension were imposed on the Appellant, which continued until shortly before the Hearing before us.
25. In the Respondent's response to the appeal and her grounds of opposition, the Respondent contended that the Appellant does not meet the requirements of the National Standards and in particular National Standards 1 and 11. In reality the issue is around National Standard 11 which provides that adults caring for children in the provision must be able to manage a wide range of children's behaviour in a way which promotes their welfare and development. In that respect OFSTED maintained that the allegations of inappropriate potty and toilet training and forcing a child to drink were a clear breach of that behaviour management provision.
26. As to National Standard 1, the Respondent points to the fact that the issue of suitability is not only a National Standard issue but a statutory requirement. OFSTED pointed to the fact that witnesses said that the Appellant was firm, strict, severe, harsh, rough, loud, unnecessarily forceful and not caring or loving to children. That she established stringent rules with no leeway and the children in her care were often seen being upset or crying and that despite interventions by OFSTED and actions set and despite that fact that she had completed all required training, the Appellant had failed to implement the training into her practice which undermined her suitability for child minding. In addition, said the Respondent, the fact that the Appellant had made only very limited concessions about the allegations and attempted to justify her conduct only heightened the concerns of OFSTED.
27. In her evidence to us, Ms Turner helpfully indicated that she was the person who had made the decisions throughout in this case and that if there had been no antecedent history of concerns the two incidents on their own in March 2008 would not have led her to a conclusion that the registration of the Appellant should be cancelled. OFSTED's position in this respect changed during the course of the Hearing as we will identify later in this Decision.

The first incident –June 2004 (C48695)

28. We now turn to each of the specific incidents which form the basis of the Decision of OFSTED. The first allegations occurred in June 2004. It is known in the OFSTED papers as C48695. It appears that the complaint was originally made by a parent of a minded child aged two years eleven months, who had been minded by the Appellant since 2002 about the Appellant's daughter who was aged four. It concerned the Appellant's daughter's behaviour at playschool towards the minded child. The precise nature of this complaint is a little difficult to identify and certainly was originally unknown to the Appellant. When it was raised with her by OFSTED she rightly pointed out that OFSTED should not be dealing with it in connection in her capacity as a child minder as it took place in a pre-school setting and did not relate to her child minding.
29. The complainant, Mrs GP, who was to give evidence to us so we had been told but did not ultimately sign a Witness Statement, complained to OFSTED then about an alleged incident, that she herself had not witnessed, where it was suggested that the Appellant had used reins on the complainant's daughter and the Appellant had "yanked her". The record maintained by OFSTED of this incident indicated that when the complaint was taken it was alleged by the complainant that she had removed her daughter recently from the pre-school and this had been prompted because of incidents of bullying by the Appellant's daughter. It is noted that it was said she had heard from another mother that other children had been subject to similar treatment by the Appellant's daughter. It was noted that the complainant was upset that the Appellant had written to the pre-school requesting that they did not take her daughter as she knew there would be problems. The complainant felt that the daughter was not coping with her mother being a Child Minder and had severe behavioural problems. The complainant alleged that the Appellant's daughter had also pushed her daughter over in front of both the complainant and the Appellant and the Appellant did not intervene. Finally the complainant said that the Appellant had used reins on her daughter, which the complainant was happy with until a friend said she had seen the Appellant yanking her like a dog and as a result she had asked the Appellant not to use the reins on her again.
30. The Appellant gives a materially different account of this period. She tells us, and told OFSTED consistently from the incident originally being raised with her until the present time, that she had spoken to the pre-school about the two girls being put into separate rooms as she was concerned about the girls spending so much time together. She had not asked the pre-school to refuse admission to the complainant's daughter, merely to keep them separate. The complainant found out about the appellant speaking to the pre-school through a relative, who was a member of the school staff and, as a result, the Appellant complained to OFSTED about the breach of confidentiality. The Appellant told us that in fact she had removed her daughter from the pre-school rather than the complainant moving hers. She went on to tell us, as a result, she and another Child Minder had home educated her daughter. She told us she had never been called into the pre-school regarding the alleged incidents of bullying and instead she gave to OFSTED clear evidence from her log, which we had in front of us, of occasions when she was child minding when the complainant's daughter had bitten her daughter. The complainant had signed the log as accepting this. She pointed out that no evidence had ever been brought from other parents that their children had been subjected to bullying. There is no dispute that on occasions the Appellant used reins on the child, but she vehemently denies she has ever yanked on the reins as alleged by the complainant. She indicated that on occasions Daisy would lift her legs as is common with many children with reins, and to avoid her smacking her face on the pavement she would have held the reins up to avoid this. She points out that the witness to the alleged incident has never been identified or given any evidence to OFSTED. As a result, she says there is nothing factual about the accusations and absolutely no evidence of actual injury or harm to a child caused by her.
31. The complainant was interviewed by Mr Dwyer as part of the OFSTED investigations into the concerns. She was interviewed on 29 April 2008. In her interview, she stated that her first concern was the allegation of the dragging of her daughter by the reins. She fairly recorded in her interview that the Appellant had categorically denied this immediately and agreed not to use the reins any more. When she was asked about the Appellant's behaviour management techniques she described them as "very strict and very severe". Since removing her child, her child had told her that she had been put in a naughty corner and she was not allowed food until mummy came. These two allegations were vehemently denied by the Appellant in her evidence to us and have never been put formally to her by OFSTED. The complainant said that children were often seen in the playground of the school sobbing for a long time and if she had children in a pushchair she would use a blanket to cover them. Again these issues are denied by the Appellant who told us that in any event she and the complainant were in different playgrounds of the school as their children were of a different age. The complainant made an allegation about a toilet training issue relating to her daughter. She dealt in her Statement to OFSTED with what had happened at the pre-school and identified the fact that her child's aunty would phone OFSTED because she had seen an incident at the playschool. She said "it is a good idea for you to speak to all others at the pre-school; they dislike (the Appellant) and would be willing to speak to you." When asked whether she meant parents or staff, she said the staff. She was then asked to pass on OFSTED's contact details to anybody who was prepared to give information about the matter. The complainant said she felt let down by OFSTED as the Appellant had taken her to the Small Claims Court for breach of contract because she had removed her child without appropriate notice. We had evidence of that judgement in the papers before us.
32. OFSTED had intended to call this Witness to give first hand evidence of these matters, but had written to the Tribunal on 5 December 2008 through their Solicitors saying "We do not propose to rely on the Statement given by (this Witness) as had been originally anticipated at the preliminary Hearing, because (the complainant) had moved out of the Lymington area." The Appellant told us that that was untrue and that she and the complainant had been at a school play only in the previous week.

The second incident -March 2005 (C56175)

33. The second incident relates to a matter which occurred in early March 2005. OFSTED record this as number C56175. The OFSTED record shows that they received information on 4 March 2005 from a number of sources regarding an incident at a toddler group during which the Appellant was allegedly observed to discipline inappropriately a child in her care who was potty training. OFSTED investigated these concerns by carrying out an unannounced visit on 17 March 2005 during which all the issues were discussed and assessed under Standard 11. The record notes "OFSTED are satisfied that the provider remains qualified for registration." The Appellant described this incident to us, as she has in writing to OFSTED on a number of occasions, as effectively an incident which might have occurred any day in a Child Minder's life. The child had started potty training both at home and with the Appellant. The Appellant had sat the child on the potty at a play group after he had had a snack as she knew he needed to go. The child went to the other end of the hall and "performed" all over the floor causing a puddle. The Appellant says that she said "that was naughty as you have just been sat on the potty." She then cleaned up the mess made while the child watched and once the floor was clean she took the child to the potty, pulled his wet clothes down and sat him on the potty saying "this is where you do wee wee." She then removed his wet clothes, bagged them and put him in clean clothes. She said that when she was visited by Tonia Chillcott, the OFSTED Inspector, Ms Chillcott had said she should not have used the word "naughty" but she had explained that this was the word the parents used and was the word that he understood. She pointed out to OFSTED when they were dealing with the cancellation of her registration that OFSTED had found at the time that the National Standards were being met and hence it was unreasonable for them to rely on the allegations when considering the cancellation of her registration.
34. Ms Chillcott in her written evidence before the Tribunal says that the complaint that had been received by OFSTED suggested that the Appellant had shouted at the child and had sat him on a potty facing the wall for twenty minutes ignoring the child throughout the period. Three other complaints were made to OFSTED relating to the same incident by different witnesses. One of the complainants had contained information about the Appellant shouting at the child "stop being so naughty" and "stop being so stupid" and states that another person had eventually picked the child up in an effort to comfort him.
35. Ms Chillcott describes in her written Statement how the Appellant had described the incident to her on her visit on 17 March 2005. She said that the Appellant stated she had told the child off, stating he had been a naughty boy, whilst she cleaned the urine puddle up. She stated she was cross with the child as he had previously been getting into a routine and that she had used her tone of voice to express to the child she was cross with him. She stated that the child was screaming as he was having a tantrum and as a result of this she sat with her back to the child so he would not have eye contact with her. Ms Chillcott recalled that having gathered the evidence and submitted her notebook for review it was decided that no further action was to be taken.
36. Unfortunately, the Appellant had chosen not to ask Ms Chillcott to attend to give evidence. She told the Tribunal that she did not wish to cross examine Ms Chillcott as she was an OFSTED Inspector and has not been witness to anything except paperwork. As it transpired, the Appellant maintains that the information that she gave to Ms Chillcott is not fairly recorded in Ms Chillcott's evidence. She continued to maintain that she had not described the child as naughty, but the action as naughty.

The third incident –August 2005 (C60431)

37. The next complaint relates to an issue which arose in August 2005 and which is recorded by OFSTED under their number C60431. The Appellant's version of the lead up to this allegation is important to record because it appears not to have been investigated or considered by OFSTED. It is accepted by OFSTED that the Appellant telephoned them to say that she thought it was likely that a parent was going to make a complaint against her. The Appellant's case is that the complainant had been spreading malicious rumours about her because she was angry about the fact that she, the Appellant, had asked the complainant for a retainer fee which was owed to her and which had been agreed in the contractual arrangement between them. She gave us evidence of what happened at an argument between her and the complainant and the fact that the complainant's husband subsequently apologised for his wife's behaviour and made payment. The Appellant's case is that the complainant made complaints purely out of malice to destroy her business.
38. The log maintained by OFSTED recalls information was passed to them regarding the behaviour management of a minded child practised by the Appellant; allegations of her leaving a child for an unreasonable amount of time on a potty and a minded child having to walk an unreasonable distance. OFSTED investigated by carrying out an unannounced visit on 3 August 2005 during which all the concerns and issues were discussed with the appellant. The appellant was able to produce appropriate documentation and demonstrated a clear understanding of the National Standards at the time of the visit. The log does not describe whether or not OFSTED accepted the allegations were true or whether they accepted the Appellant's case that in fact these incidents had never occurred.
39. Ms Turner, in her evidence, says that these matters were investigated by Tonia Chillcott and Clare Moore, another Inspector. Ms Chillcott's written evidence does not deal with the unannounced visit of 3 August 2005 and we have no evidence from Ms Moore so it is difficult for us to understand what was concluded at the time. It seems to us more likely than not that the first of the two allegations actually is exactly the same allegation as C56175. It certainly concerns the same child and seems so similar it is unlikely that it would have occurred twice in the same way.

The Fourth incident –September 2005.

40. The next matter we did hear direct evidence on, but surprisingly does not have an OFSTED reference number even though it said that the incident was reported to OFSTED at the time it occurred in September 2005, was an incident which took place in September 2005. We heard evidence from CS and JV who witnessed the alleged incident.
41. The alleged incident took place at Boldre Playgroup. The witness CS in her Witness Statement said "I remember seeing [the Appellant] pulling a little boy by his arm from one corner of the room diagonally to the other behind the sitting area. The boy must have been about two years old, the same age as my eldest son. He was crying. Then I saw the Appellant putting the boy on a potty facing the wall. She sat with her back to him. The boy was clearly upset all the time when he was sitting on the potty. The Appellant did not console or comfort him". Later in her Statement she says "all I can recall is seeing the Appellant suddenly pulling the boy: him crying whilst he was being pulled and later he was sitting on the potty". In her evidence she went on to say how she would have dealt with the incident as a mother. She considered that the Appellant's treatment of the boy was "unacceptable".
42. Witness JV gave a more dramatic account of what she had seen. She described the Appellant "dragging a little boy" across the hall. She then said she could remember the Appellant "leading the boy by his arm rather forcibly, pulling his trousers down and pants down again rather forcibly and putting him on the potty." She described the boy being on the potty for a long time and the boy was crying a lot and that the Appellant did not speak to him or try to comfort him. Later in her written evidence she described his treatment as being "too rough" and at the end of her Statement she described that she thought that the Appellant had reacted "so violently in public" and she said that she decided to make a complaint to OFSTED. Both of the witnesses in their written evidence accepted that they saw no other incidents in the group throughout the period they attended it with the Appellant. In answer to questions from us, witness JV said that she accepted that the use of the language in her Statement as to how the Appellant had behaved was confusing and that a fair description would be "forceful".
43. Given that this matter was never put formally to the Appellant at the time it occurred, it is of course difficult for accurate recollections of what happened to be available. The Appellant has some recollection of what happened. She remembers that a boy was crying because he had wet himself and was upset with what he had done. The Appellant denied she was annoyed but says she changed the boy immediately and was speaking to him throughout the episode.

The fifth incident – January 2007 (C75581)

44. The next issue which arose was a concern received by OFSTED on 16 January 2007 and recorded by them under C75581. Debbie Turner in her evidence described this as her most serious concern they had received to that date. OFSTED received a report that on one occasion a boy was on a plastic sheet at the end of the play room in the Appellant's house with a potty adjoining the area.
45. The OFSTED record of the matter does not set out in full what is alleged to have happened, but it was investigated urgently by Lorraine Sparey, an OFSTED Child Care Inspector. The allegations she records were made by an anonymous complainant that the Appellant had made an eighteen month old minded child, who was being potty trained, remain on a tarpaulin sheet whilst in her care and that she was rougher with him and other children than she needed to be. She sets out in detail the account which the Appellant gave at the time of what had happened which appears to us to be entirely consistent with what she has maintained throughout. She explained that the parent had asked her to start potty training but, although the child was doing well, the parent had decided to put him back into nappies. The Appellant in her written evidence to OFSTED and before us told us that this was because the family were going on holiday to France and that she advised strongly against this as it would confuse the child. When the parents returned from France they continued to use the nappies for a period and then asked the Appellant to start potty training again. The Appellant demonstrated to Ms Sparey her written potty training policy. When Ms Sparey asked the Appellant about the use of the tarpaulin sheet the Appellant immediately confirmed that she had placed the child on it whilst the child was potty training. She told Ms Sparey this was because it was unhygienic for her other child minded babies who were crawling around. She had put him on the sheet which was close to the toilet and she had explained to the child that if he was going to continue to wee on the carpet he would have to remain on the plastic sheet. She went on to tell Ms Sparey the child had been dry on the one day he had been on the sheet. When asked whether the parent was aware that the child was kept on the sheet the Appellant had discussed and agreed it with the parent as part of the strategy.
46. Unfortunately this is another witness whom the Appellant did not seek to cross examine and again it transpired that there was some difference in views between the Appellant and Ms Sparey as to what Ms Sparey had recorded had been the Appellant's answers. The Appellant told us that actually the child was on the sheet for about fifteen minutes in the day. He was never restrained and it was meant to be fun. The sheet covered about half of the end of her playroom and was used for other activities such as wet play. At the time of the visit Ms Sparey could not make observations as there were no children present. Tellingly Ms Sparey explained that she found it difficult to comment on whether or not it was acceptable to use the sheet as she had not seen the child or how the plastic sheet was used. She did however say that she felt it was not acceptable to keep a child on the plastic sheet close to the toilet when other children were allowed to play freely. The Appellant said that the child had learnt that if he was going to wee on the carpet he would have to stay on the plastic sheet. Ms Sparey then spent some time questioning the Appellant about behaviour management generally.
47. The Appellant now accepts with hindsight that her use of the strategy was most probably misconceived and could have had an unhelpful effect on the child. She has repeatedly said this and apologised for it. OFSTED's reaction to this was to set two actions for the appellant to undertake. One under National Standard 3 "Care Learning and Play" required the Appellant to devise and implement an action plan which would identify how she encouraged children to be confident, independent and develop their self esteem. The second action was set under National Standard 11 "Behaviour" and asked the Appellant to devise and implement an action plan identifying ways to manage children's behaviour in respect of their individual levels of understanding and maturity and share the action plan with parents. When this outcome was advised to her the Appellant was upset and asked to know who had made the complaint. She believed it came not from a parent but from a child minder who had been visiting on that day. The Appellant felt this decision was unfair as she had not been minding on the day of Ms Sparey's visit. Ms Sparey said the actions were as a result of the evidence that she had given, for example, regarding the child who had to remain on the plastic sheet. Subsequently responses were received from the Appellant detailing how the actions had been met and it is apparent that those responses satisfied OFSTED and no further action was taken.

The final incidents - March 2008 (C91815)

48. We then turn to the two incidents which have triggered the OFSTED enquiry which led to the cancellation of the Appellant's registration. These are recorded under OFSTED number C91815. They both relate to the same child and it is important first for us to record the evidence that we have of this child as it appears to us extremely material to the allegations which are being made. One child minder (AC) interviewed by Mr Dwyer started by saying "that particular child does not like anyone in his face and because he does not have any verbal communication he expresses himself in different ways. With other children they understand he gets frustrated and no end of explanation to him would help him understand the future. Therefore he needs to be removed from situations, he gets, "triggered" and there is no stopping him."
49. The mother of the child when interviewed said "my son has speech problems and he gets frustrated very easily. She said that her son could not talk back, he gets frustrated and he starts "bashing things"." The Witness Statement of ST, a Child Minder who has been registered for twenty five years is the most enlightening on this matter. ST cared for the little boy for four months after the Appellant was suspended. In the end she had to give the parent notice because the child was such a risk to the other children in her care. She described the child as very unpredictable who would lash out at other children pushing, hitting and throwing himself and objects around. She said that the management of the child in public was really difficult because the child would react so severely to being redirected from hitting another child or snatching something that he wanted. This has resulted in them being hit personally, him hitting out at others, kicking his legs and throwing himself backwards, hitting himself on his head whilst screaming out loudly. He would lash out at even small babies and he hurt most of the other children in their setting daily. The child minder had to be with him all of the time. She concluded that the child's behaviour caused her more concern than any child she had cared for in twenty four years. When she gave up child minding the child she recommended that the child carer would need extended behaviour management training and felt that a nursery might be a better placement.
50. What occurred in relation to this child on two occasions therefore needs to be carefully considered against the background of a child who clearly has complex communication and behavioural difficulties and where the evidence shows us that he is a child with complex special educational needs and where different behavioural management strategies may be required than those used for children who do not have these complex problems.
51. The case background recorded by OFSTED said that they received concerns on 13 March 2008 that the complainant "observed the child minder with a minded white boy aged about two. She does not know his name. The boy spilt his drink by accident and the Appellant told him off and made him sit facing the wall for fifteen minutes. He was crying and trying to turn around. The Appellant shouted at him that if he did not spill his drink he would not be sitting there. She kept moving his leg back when he tried to turn. When the fifteen minutes was up she told him to stand up, she then tried to force feed him the drink out of the normal beaker without a lid. She put her hand on the top of his head, tipped his head back and put his drink to his mouth and made him drink it all. The child was coughing and spluttering and crying but she made him finish it. When he was back playing, every time the Appellant went near him the complainant saw him flinch as if he was frightened."
52. At the group a week later the same complainant said that the child minder had the same child with her, she had a beaker with a lid on it, she tried to get him to drink but he did not want it. Because of that she again made him sit facing the wall. The complainant then told the Area Child Minding Coordinator Heidi who was there, and Heidi went over to speak to the child minder. The boy was only facing the wall for five minutes because of her intervention.
53. We have seen two witnesses who gave us first hand accounts of what they say occurred on the two occasions. The first, TG, has been working as a Child Minder since 2000, and has been acquainted with the Appellant for about three years through a Child Minders' Group. She also knew the Appellant through a mother and toddler group in Everton. She described the Appellant as well informed on child minding issues and that she had done a lot of training. She had contributed to the discussions in the Child Minders' Group, she had a lot of information to share and she had been a child minder for a number of years. She described the Appellant's demeanour as rather cold and demanding and ensuring everything was done her way.
54. She describes two incidents; the first of which we will refer to later in this Decision, but the major incident was one at 11.00am on 6th March 2008. She recounted that on that occasion the Appellant had physically removed the child from the mat and "plonked" him down on the floor facing the wall. She physically lifted him up and "plonked him like a sack of potatoes" with no gentleness at all. He was "plonked" down in a sitting position. Her view was the action did not physically hurt him but it felt very harsh. The witness said she could see what was happening and the Appellant gave him another drink. He did not want it and he wanted to get up and when she would not let him he started crying. She told him he had to sit there until he had drunk his water so he sat for a fair while. She said the boy was sobbing by this time and he spilt the drink again and his clothing was wet all over. She did not say in her evidence orally or in writing that at any time she saw the Appellant forcibly make him drink. In her oral evidence she demonstrated that the Appellant had picked the child up under his arms and she showed us using her handbag the force with which he had been "plonked" on the floor. According to her recollection and how she demonstrated it was done with considerable force. She did not report the matter to OFSTED.
55. We saw witness GC who is also a child minder and has been for three and a half years. She had met the Appellant, both in the Child Minders' Group in Lymington and once in a mother and toddler group in Everton. The witness had been going to the group since December 2007 so only for a few months before this incident happened. She described that on 6 March at around snack time she head the Appellant telling off a boy in a rather harsh tone and raised voice. It was loud enough to distract her. When she looked around she saw a boy who did not want to drink water. He had a cup without a lid on so he spilt water all over himself. She saw the Appellant take him away from the mat and make him sit alone facing the wall for what seemed a long time, maybe fifteen minutes. She then gave him a cup filled with water and holding the back of his head with her hand forced him to drink. He was crying a lot. He did not want to sit there or drink water and she said that the Appellant kept hold of his legs whenever he tried to turn around. She said the boy was very upset as he was still being told off. She concluded that the boy was being "chastised" and later in the session she thought that he still seemed afraid of her. She described a similar incident in the following week at the same group when the Appellant behaved in the same way, taking the boy away from the other children, making him face the wall and again told him off. The matter was pointed out by her to the Child Minder Coordinator Heidi who spoke to the Appellant. She then rang OFSTED and reported the matter.
56. Like the first witness she also recollected an incident earlier in December 2007 which we will deal with later in this Decision. When asked by us during her evidence how on the first occasion the boy had been taken from the mat to the corner of the room where he was sat down facing the wall, the witness told us that he was led by his hand. When we asked her to demonstrate how the boy had been force fed with the water she showed him being held by his forehead with the Appellant tipping the drink into his mouth.
57. The Appellant's account of what happened is materially different. She recounts how on 6 March she was at the group with three children of whom the child concerned is one. He had poured his drink purposely down his front and over the floor on four occasions. She knows the child well. He had been asked to drink it nicely and to keep the drink in his cup but she had not told him off. Because he had done it on four occasions she led him by the hand to the side of the hall and sat him down sideways to the hall so that he could see the group under a table. She knelt behind him and encouraged him to have a drink as he has a kidney problem and his mother is concerned that he must always have enough to drink. She told us that she walked away briefly to see if he would drink without pouring the drink everywhere which he did not. She said that she went back and knelt with him gently holding the cup with him with her hand on his back to prevent him throwing himself backwards as he is prone to do. It is clear from the evidence from ST, which we have recounted above, that the child is prone to this behaviour. She lifted the cup to his mouth giving him encouragement which led to him taking two sips from the cup. He was not made to finish the drink. He was praised by the Appellant saying "well done that was excellent". He handed her the cup and then went off and played with his peers in the hall. She said the child was not soaking wet and was not upset, crying, coughing or spluttering and he was not made to finish the drink.
58. There are other pieces of evidence about these two incidents which are set out in the interviews carried out by Mr Dwyer. A child minder CS was asked whether she had a recollection of the day in question and whether she had spoken to the Appellant about this. "We have spoken about it. I do remember the Appellant getting upset with the child and she quoted the Appellant saying "he's spilt his drink four times and he needs to drink". I think he may have had to drink." When confirming the notes of her interview she clarified that she had been in the kitchen all the time and had not seen it.
59. Another child minder LC said "what I actually observed was, we had just done music time and the drinks were being handed around. The child in question threw his cup about three times. After the second or third time I went to walk over to intervene but the Appellant got there first, picked him up, took him out of the group to the back of the group and that is the last that I can tell you as I did not see any more."
60. The most important written evidence is the evidence of Heidi. Unfortunately we are told through serious ill health she was unable to make a final formal Statement or attend to give evidence. Her evidence might have clarified what happened on the second occasion, but more importantly have helped on the issue of the suitability or otherwise of the Appellant. As we have identified previously in this Decision, she had been visiting the Appellant once very three months at home and saw her once a month at the group. When she was interviewed it was apparent she was not at the group when the first alleged incident occurred, but she had received a call on 12 March from a child minder who had told her she had witnessed the Appellant placing a child to face a wall and that the Appellant had been impatient and used more force than usual to move him to the wall. Because of this Heidi said she was going to watch the Appellant keenly on the 13^th. When asked what had happened on that date she said "the children were sat down for drinks and I was sat opposite and could see both the Appellant and the child. He was sat down to drink and she was looking frustrated that he was not drinking." At that stage Heidi had a call on her phone and left the room. When she came back he was sat against the wall. She did not see the Appellant use any force. She went up to the Appellant and asked her to move him which she did. When she asked why she (the Appellant) had done this, Heidi said that the Appellant seemed agitated and defensive, but had said that the child never drinks at the group, he had a kidney problem and needed his drink, he was easily distracted and he had to be fed against the wall. Heidi said she discussed the appropriateness of this technique with her and gave her other examples of how she could deal with the situation.
61. The matter was left that she would speak to her in the following week. Heidi said she told the Appellant that this must not happen again. When asked to clarify how the boy was by the wall she said the boy was turned towards the wall. Because of the suspension the proposed visit never took place. Later in her interview she recorded that in a further discussion with the Appellant about this incident the Appellant had accepted that her treatment of the boy could have been seen as a punishment and that alternatives were discussed. Heidi records that the Appellant was clear that keeping him against the wall was not a punishment but was to avoid distraction.

The Penultimate incident – December 2007

62. The final incident relied upon by OFSTED in support of their decision is one which came to light and was reported at the same time as the March incidents. Both witness TG and witness GC give evidence about it. Witness G described a situation which concerned her when the Appellant was with a little girl of about ten months old who cried continuously. The child was new to the Appellant and the group. She had not settled in well and was unhappy. She complained that the Appellant did sometimes try to console her, however most of the time she would ignore the child in a controlled way. She felt, and others believed she said, that this was too stern and that if the child was distracted she almost always stopped crying. Witness C was more direct about this issue in that she remembered an incident in December 2007 involving the girl who was sobbing and screaming, her face was red and she was upset and unhappy. This happened on the first or second visit of witness C to the group. She said that the Appellant ignored the child's tears and did not try to console or comfort her in any way. She considered this inappropriate and harsh.
63. Again in the Statements taken by Mr Dwyer others comment on this situation. One child minder, AC, said that when the Appellant had the baby originally she cried a lot and every time the child was put down she cried. She explained that the Appellant would sit on the mat, introduce toys to her and step back to allow her to interact and look around. On the first few weeks she sat on the mat with her, but obviously on occasion she had to get up because she had two other children. The witness went on to say that the Appellant was "ever so cuddly, picks the baby up, has her on her lap, baby cooing and laughing with her." The child's mother when interviewed described the bond between the Appellant and her child as very good, a strong bond with the baby. Asked if she had any concerns she said no, only once OFSTED had taken action. One anonymous child minder also recollected one particular incident with this baby. She said "the Appellant came in. It was the usual Thursday, the little girl was quite unsettled. Some children just do not like the building. She was crying throughout the morning. I sat down next to the little girl and so had other child minders to try and cheer her up. The Appellant had picked her up as well. I do not think she was walking yet. She may have been frustrated because she could not get what she wanted. When asked whether the Appellant was with her and the others when they went to see the child, she replied "R was about seven foot away and constantly watching. It did not seem to help when we came close, she got even more upset." Asked how the Appellant was during this incident she said "quite tense" and that she (the appellant) had "tried everything, what I do, nothing is working."
64. Again, Heidi clearly has some knowledge of this situation. She recorded in her interview notes that before Christmas one new child was crying all the time and that she had said to the Appellant that the child needed affection and did not think that she would have been picked up. She recorded however that by January the Appellant seemed to have taken all this on board and a very close bond had formed between the baby and the Appellant.

Other evidence on suitability

65. We have also heard and seen much evidence which directly relates to the issue of the Appellant's suitability to remain registered as a child minder and it is important that we record that information. The witness CS indicated that she would not allow the Appellant to care for her children. She had demonstrated unacceptable behaviour and frightened the child in question. She went on however to accept she had seen no other incidents and she had seen her regularly in the group. The witness JV said that that if what she had seen had happened in the home setting then she was concerned as to how the Appellant might have behaved if there was no one around and the misdemeanour was more serious. She accepted she had seen no more incidents.
66. Debbie Turner accepted, on behalf of OFSTED, that there was no suggestion that any child had suffered any actual physical harm, neither was there any evidence of any actual emotional harm being caused.
67. The witness TG indicated over the years she had known the Appellant she had seen her in lots of situations with children which she did not like and that she would not recommend her to any other parent. She described the Appellant as short with children, sometimes too stern and that children had no leeway and had to obey her rules. She had not often seen her cuddling children or giving them sympathy or comfort, and she was in her opinion rather cold, demanding and everything had to be done her way. On the other hand she said that the Appellant was well informed on child minding issues. She was very familiar with Early Years Foundation Stage guidance, she had done a lot of training, and she always contributed to the discussions in the Child Minders group. She had a lot of information to share.
68. We had written evidence of a number of witnesses who supported the Appellant, one of whom a Mrs VC said she had known the Appellant for twenty years and would class her as one of her best friends. She had seen the Appellant working with a child whom she had minded both at home and on trips, but also been with her to toddler and drop in groups where she was a popular member. She felt strongly that the Appellant had helped children over ten years.
69. A Mrs MP gave written evidence that the Appellant had cared for her son from August 2006 until February 2008 and at no time did she feel any cause for concern. She said throughout the time that her son was in the Appellant's care her son developed immensely and with the daily diary and chats about her son's development she felt that the Appellant was a second mother to her son, and that there was a strong relationship between the son and the Appellant. All of the matters such as walking development, potty training and discipline were discussed and were clear and they were always in total agreement and at no time did she feel that her son was at risk. If anything, she felt totally secure that her son was well cared for.
70. We have already recorded the evidence that we had in writing from ST on the issues in question which we set out above and in particular about the educational and other needs of the young child, the subject of the March incidents. However she also provided evidence about the Appellant as a registered child minder. She described the Appellant as very dedicated to her work, taking a great deal of her personal time to advance her professional development. She described the Appellant as firm, fair and very experienced. She said she found it very strange that the Appellant had been seen working in groups for ten years and had an assessments to achieve NVQ level 3; had people spend many hours in her house as well; had the network coordinators working with her for all those years and no one had expressed any concern about her day to day work as a Child Minder. In particular she felt that the Appellant should be commended for her willingness to help families whose children needed more help than the easy ones.
71. We heard evidence from a child minder JC at the beginning of this Hearing who told us that for eight years she had known the Appellant as a child minding colleague and friend and found her to be conscientious and committed to achieving the best possible outcomes for the children in her care in terms of training she had undertaken, the resource she provided and her interaction with the children.
72. Evidence from another parent described the Appellant as a very organised and professional lady, and that having had previous poor child care in the past she was relieved to have found an appropriate placement. She described that her children settled in with ease and the routine was established within the first week. Both her children bonded well with the Appellant with the young one in particular. The outcome of the suspension for this particular parent was that she finally had to give up work as she could find no child care for the holiday period and that her children had lost a child minder whom they adored.
73. A TB gave written evidence that she had known the Appellant for some six years by reason of a Friday evening swimming club. In that situation she was able to confirm that the Appellant had a very good relationship and interaction with the children. She had seen nothing in the whole of the six years that put in doubt that the children were not happy and content.
74. When questioned by Mr Dwyer, a witness CS a child minder, when asked how the Appellant managed the children – was it any different from her, said no. When asked how she treated children she said that the Appellant could be a little loud but no different to other child minders in general. Child minders LC and AC said that they knew the Appellant for many years, both through being child minders and going to the drop in centre. When asked about her behaviour management style, they said that "she talks to them, she will explain what is going on, the discipline is there to sit down at snack time, if one gets up they sit down again. I have witnessed that, but we all do that as well. If throwing is going on they are distracted and it is explained to them." Asked about behaviour management styles, they said that they were brought up to do as they were asked and that was what the Appellant demonstrated. Asked if her style had changed they said in less than a year it has got much better because she was softer speaking and a bit more interactive. When asked if they had anything more to add, they indicated it would be sad if the Appellant could not go back to her job, that she loved looking after children and going out and about. They had noticed over the years that her children had made progress and that her parents were happy. She does some good child minding, it is noticeable with the children as they change when they have been with her. Asked whether she had a bond with her children, they said they thought she had a bond. Children would not thrive if they did not. She is quite motherly, she watches her children and looks after them. Others just come in and sit there. Asked if they had anything to add, they indicated she was a good minder and would be sorely missed.
75. In an interview with another parent MP, whose evidence we have summarised at paragraph 57, she was asked whether she was happy with the Appellant said that she got information from the Appellant every day about her son's progress said that the Appellant had a file with what he had eaten, how long he had slept and in the back there are sections on medication. She said that the Appellant had been particularly good about moving him from nappies to the potty. She recommended a bit of everything for potty training. She said that her child was looking at the Appellant as a second mother and building his independence. When asked if he had a good bond with the Appellant she said yes very well behaved. Asked if she had any concerns she said "no".
76. In her interview with Mr Dwyer, JC when asked what was the Appellant's bond like with children said "I would leave my child with her, what she does well is bring out shy children so they mix more and are more sociable but she can come across as brusque and does not cuddle them." Asked about managing children's behaviour, she said that the Appellant was "firm. If a child was disruptive, for example biting, she removes them quite quickly but she is firm and does not shout. She does not bawl them out. After moving them, she sits them down and explains what they have done wrong as we all do". When asked if she had anything to add she said she was shocked at what had happened and she considered the Appellant to be a "very professional child minder."
77. In an interview with an anonymous child minder, Mr Dwyer recorded that the child minder said that she had known the Appellant for some four years. When asked how she looked after the children she said "well, she does all the activities with them and they are happy to approach her." When asked about her behaviour management style she said "reasonably strict, she has rules and children know what they are. She is always sure what she wants to do and the children know what to expect. There are clear boundaries, she is safety conscious for her children and the others of the group." Asked about the Appellant's bond with children, she described them as "reasonably close, they bring her toys and they seem to trust her. She talks to them well and explains things well." Asked if she had any concerns about emotional harm, she said "no none at all". Asked about whether the Appellant's behaviour management style was in a reasonable range, she said "yes the children needed rules and boundaries."
78. In an interview by Mr Dwyer with the mother of the child, the subject of the March incidents, she indicated that he had made big progress in the time he had been with the Appellant. She described that the Appellant sat teaching him with books. He had done drawing with her, he can sign and has begun potty training which he would not do for her. Evidence showed that the Appellant was starting Makaton signing with the child. The mother said that the Appellant had him all day, he was as good as gold when he comes home. She said that her son was happy to go to the Appellant, "he pulls me to the door because he knows where he is going, there is no bye bye mummy." When asked is there anything else to add the parent made it clear that she wanted the Appellant back as a child minder looking after her son.
79. Finally, Heidi in her Statement to Mr Dwyer raises a number of issues as to the competence and suitability or otherwise of the Appellant. She said "I do not think she would ever cause harm to her child but her behaviour management towards birth to 3s is bad. However I have seen lots of close bonds which Rachel has formed with minded children. In January the bonds seemed much more affectionate. She has good knowledge of child development but not how to use it appropriately". She went on to say that the Appellant "does take input on board but her manner was so abrupt. You could not fake the close bond she has with her children but I wonder if sometimes some of her public praise is forced. I am concerned that she has done this in front of people. There are problems with birth to 3s because of her manner. She lacks patience." When asked if there was anything else to add she indicated "I have not witnessed anything else over the last year that caused concerns just a few issues."

The findings of the Tribunal on the evidence

Incident in June 2004 reference C48695.

80. As we have set out above, we find there was no evidence on which OFSTED could conclude either these allegations were true or impacted on the suitability of the Appellant to be a child minder. The evidence suggests to us quite clearly that these incidents in June 2004 caused some considerable upset between staff and parents attending the particular pre-school. It appears to us that this may well have coloured much of what has subsequently transpired. We do not see that there was any evidence that OFSTED actually obtained in 2004 from which they could conclude that the allegation about the reins was true and clearly it would have been wrong for them in any way to have considered the allegations of what was happening at the pre-school. In any event these did not impact on the suitability of the Appellant to be a child minder. In our judgement therefore it would be wrong for OFSTED or us to take these issues into account in judging the suitability of the Appellant to be a child minder or considering whether her behaviour management techniques are or are not acceptable. We accept the Appellant's evidence as to these matters.

Matter Reference 56175

81. Again we have heard no direct evidence of any inappropriate behaviour by the Appellant on this occasion. There is no direct evidence of what happened presented to us by OFSTED and the only direct evidence of what happened is that of the Appellant herself.
82. We have not seen Ms Chillcott's notes of the meeting but it does appear to us that the word "naughty" was used and that the Appellant did use a tone of voice which expressed annoyance at what had happened. Whilst we can understand why the issue raises some concerns for OFSTED, and why it would be reasonable for them to take it into account in their decision making, we note that it was not considered so serious that action was required at the time. Indeed at the time OFSTED recorded that National Standards were met. Whilst normally we would have considered that four separate complaints about the incident is likely to suggest that the incident was serious and was to be believed, as there appears to have been no investigation of the complaints by OFSTED at the time and given that all of the evidence in this case suggests that those child minding in this particular location appear to either have formed views about whether the Appellant was or was not a good child minder, the numbers themselves in this case cannot be conclusive. Our view as to this is further strengthened by the fact that the child involved in this complaint is also the same child involved in the complaint with which we deal next. On balance we accept the Appellant's evidence, and find that there is no ground for complaint arising out of this incident.

Matter C60431

83. There is no evidence to support any allegation about a child being on a potty for too long, nor of any unacceptable child minding practices.
84. In our view the evidence demonstrates that so far as the second of these incidents is concerned this was a clear misunderstanding. The Appellant believes that what has happened is that she walked to Lymington from her house with the complainant's son. Her diary entry said "walked to Lymington". What she tells us, and we accept, is that they did walk to Lymington but she had with her a buggy and that for much of the journey the child sat in the buggy. We are satisfied that the second incident certainly did not take place in that a child was not asked to walk an unreasonable distance by the Appellant.
85. We note that after OFSTED decided that they were not proceeding with this complaint, they wrote to the complainant, the child's mother, indicating that they were not intending to proceed and received a strong letter back saying that the child was scared to go near the potty because of the bad experience and went on to indicate that the complainant "had heard loads of complaints about what the Appellant does".
86. We note however that the evidence shows that the complainant's son had been with the Appellant for over a year and that she raised no issues directly with the Appellant. We note that neither we nor OFSTED have ever had any direct evidence from anyone who saw either occurrence or the alleged bad practice and there may be merit in the Appellant's case that the real motive for this complaint can be traced to a dispute about a retainer fee.

The September 2005 incidents

87. Given the direct evidence we have had from the two witnesses, we accept that there was an incident on the day. However it appears to us likely that there has been an exaggeration of what was actually seen and that their own views of good practice have coloured what they have reported. There is a material difference how both of the witnesses described the Appellant's conduct, one as forceful, too rough and so violent, albeit then toned down to "forceful" and the other who suggests merely that the Appellant was "pulling the child" and thought that the Appellant was angry. Neither of the witnesses had seen what had happened in the run up to the incident. For one witness it was the only incident she had seen throughout the whole two years she had been going to the play group concerned and the other witness, although she had been going regularly, could not really recall the Appellant at all until the incident occurred. On balance, we are find it difficult to conclude whether the incident occurred in the manner described by the two witnesses, albeit with slightly different emphasis between them or whether the account of the Appellant is correct. Given the difficulty that we have about this, we are surprised that OFSTED could conclude that it was clear evidence of inappropriate practice on which to build their case on this matter.

Incident C75581

88. Whilst it could be argued that what the Appellant did in this case was a small breach of good practice, and has been recognised as such by the Appellant, we find it strange that OFSTED could have concluded this given the very clear evidence of Ms Sparey that she found it difficult to comment on whether it was acceptable to use the plastic sheet because she had not seen the child or how the plastic sheet was being used. Given this, it seems to us regrettable that OFSTED rely on what Ms Turner describes as a "serious concern" in this way without reaching a clear conclusion on the facts. It is clear to us that there has been no damage to this child whatsoever and no potential damage to the child arose.

The penultimate incident

89. Dealing with the incident of the young baby being allowed to cry excessively, we have carefully looked at the evidence about this and it seems quite clear to us that over a very short period of time the Appellant formed a very close bond with the child. This is the evidence of both Heidi and the child's mother. There might have been a short period in December when the child was upset by being in a group of other children and where perhaps the Appellant struggled to calm the child. The independent evidence of one witness in particular shows that the Appellant appreciated that she was having difficulty on one particular day. We do not accept the evidence which was given that on one occasion she was not doing anything about the child at all. This is totally inconsistent with the other witnesses who have given evidence during the enquiry about this issue.
90. On balance therefore we have concluded that there is no evidence to suggest that again anything was done by the Appellant on this occasion or occasions which demonstrated poor practice so as to show lack of suitability to be a registered Child Minder.

Incident C91815

91. Turning then finally to the two incidents in March which led to this suspension and ultimate removal from the register. It appears to us that there are major differences between the versions of the event given to us by the two witnesses on behalf of OFSTED.
92. We do not accept the evidence that the child was lifted up and plonked down on the first occasion. The evidence of witness GC and the Appellant suggests otherwise and we prefer that evidence. As to whether or not the little boy was facing the wall or not, we do not accept that on the first occasion he was there for fifteen minutes. There is no evidence that we accept that he was being restrained. We do not believe that an active two year old with the difficulties that he experienced is likely to have sat voluntarily in one place for fifteen minutes. We do not accept on the evidence that the Appellant had lost her temper, neither do we accept that what she was imposing on both occasions was a punishment. It appears clear to us that what she was practising was a clear strategy to try and remove a child with severe communication and other difficulties from other children to focus him on the task of drinking water which he needs for a medical condition and to ensure the safety of other children. Other than Heidi's written statement we have no professional evidence to support the view that if our findings of fact are correct that the strategy was professionally incorrect or could have harmed the child.
93. Only witness GC talks about the force feeding of the water. Witness TG did not see this despite apparently witnessing the whole event. We do not accept the evidence of witness GC but prefer the evidence of the Appellant in this respect. Indeed we do not see how in reality the Appellant would have forced the child to drink in the way described by witness GC. The Appellant's version of what happened in this respect has all the appearance of truthfulness. Having her hand on the child's back to stop him deliberately going backwards (one of his known strategies as other witnesses say), is clearly more likely. We do not find in any way that the child was harmed or was at any risk of harm from the Appellant in the action she took in this respect.
94. Whilst the Appellant fairly accepts with hindsight that this could have been seen as a punishment, we find it clearly was not. The fact that others could see it as a punishment does not seem to us in any way to be the test. The issue is whether or not what was being done was a breach of National Standard 11 and was inappropriate for use with a child with this particular degree of special educational need and disability. In our judgement it was not.
95. It is clear to us that OFSTED immediately believed that this was a punishment being delivered by the Appellant and that they did not consider her consistent explanation that this was a behavioural management strategy. It is clear that she told Heidi that it was a strategy. It is clear also that Heidi did not think it was an appropriate strategy but we have had no evidence which tells us why it was for this particular child an inappropriate strategy. To remove a disruptive and potentially dangerous child from a difficult situation where we find he was deliberately upsetting drink and where there was a risk which the Appellant recognised but others did not that he might throw the cup and injure others was a perfectly sensible thing to do. The Appellant only did this on two occasions. We find it unlikely that if the Appellant had done this once as a punishment the Appellant would have repeated this in front of her Supervisor in the following week. To us it is clear that what she says is right, it was an intended strategy. Whether the child was facing the wall or along side the wall in our judgement is unlikely to make a difference for this particular child. What the Appellant was seeking to do was to put him into a less distracting environment.

The law

The legislative framework to this appeal is as follows:-

96. Under section 79B(3) of Part XA of the Children Act 1989:

"A person is qualified for registration for child minding if –

(a) he, and every other person looking after children on any premises on which he is or is likely to be child minding, is suitable to look after children under the age of eight;

(b) every person living or employed on the premises in question is suitable to be in regular contact with children under the age of eight;

(c) the premises in question are suitable to be used for looking after children under the age of eight having regard to their condition and the condition and appropriateness of any equipment on the premises and to any other factor connected to the situation, construction or size of the premises; and

(d) he is complying with regulations under section 79C and with any conditions imposed under this Part."

97. Section 79C of the Children Act 1989 gives the power to the Secretary of State to make regulations governing the activities of registered childminders. The Regulations made under this power are the Day Care and Child Minding (National Standards) (England) Regulations 2003 (the "2003 Regulations") and insofar as relevant these provide:

(2) A registered person who acts as a child minder, or provides day care, on premises shall –

(a) comply with the requirements of these Regulations;

(b) meet the requirements of the national standards; and

(c) have regard to the supporting criteria that are applicable to the child care category into which the care provided by him falls and to any additional or alternative supporting criteria which he is notified by the Chief Inspector are applicable to that care.

(3) Any allegation that a registered person has failed to comply with paragraph (2) may be taken into account in any proceedings under Part XA of the Act."

98. The registration of a child minder may be cancelled by the Chief Inspector under section 79G of the Children Act 1989.
99. Section 79G states –

"(1) The registration authority may cancel the registration of any person if –

(a) in the case of a person registered for child minding, the authority is of the opinion that the person has ceased or will cease to be qualified for registration for child minding;

(b) in the case of a person registered for providing day care on any premises, the authority is of the opinion that the person has ceased or will cease to be qualified for registration for providing day care on those premises, or if a fee which is due from the person has not been paid.

[…]

(3) Any cancellation under this section must be in writing.[…]"

100. Section 79L makes provision for the procedure to be followed before a registration may be cancelled, including the right to object and for an objection hearing to be arranged.
101. Appeals against a notice of cancellation of a registration to the Tribunal are provided for in section 79M of the Children Act 1989.
102. Section 79M states –

"(1) An appeal against –

(a) the taking of any step mentioned in section 79L(1); or

(b) an order under section 79K; or

(c) a determination made by the registration authority under this Part (other than one falling within paragraph (a) or (b)) which is of a prescribed description,

shall lie to the Tribunal.

(2) On an appeal, the Tribunal may –

(a) confirm the taking of the step or the making of the order or determination or direct that it shall not have, or shall cease to have, effect; and

(b) impose, vary or cancel any condition."

103. For the purposes of the Children Act 1989 a statutory definition of "harm" is provided for in section 105 of the same act, which in turn then refers to section 31(9) and (10) of the same Act.
104. Section 105 of the Children Act 1989 states that –

""harm" has the same meaning as in section 31(9) and the question of whether harm is significant shall be determined in accordance with section 31(10)."

Section 31(9) provides that –

""harm" means, ill-treatment or the impairment of health or development [including, for example, impairment suffered from seeing or hearing the ill-treatment of another];

"development" means physical, intellectual, emotional, social or behavioural development;

"health" means physical or mental health; and

"ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical."

Section 31(10) provides that –

"Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child."

105. The Childcare Act 2006 came into force on 1 September 2008 at which point the provider will transfer to the new registers created by that Act. This appeal will proceed as provided for in The Childcare Act 2006 (Commencement No. 5 and Savings and Transitional Provisions) Order 2008. Paragraph 1 of Schedule 1 of the Order provides:

1(1) Subject to Schedule 2, this Order shall not affect –

(a) any act done, any notice served, any application made or any decision taken; or

(b) any requirement or limitation of time; or

(c) any legal proceedings commenced; or

(d) any order made by a Court

Under, or in relation to any of the provisions amended or repealed as a consequence of the commencement of Schedule 1, 2 or 3 to the 2006 Act.

2 In relation to the provisions amended or repealed as a consequence of the commencement of Schedule 1, 2 or 3 of the 2006 Act, legal proceedings may be brought or continued and remedies or penalties may be imposed and enforced in relation to acts done under, in relation to, or in contravention of any of those provisions before the transfer date, as if the amendments or repeals had not been made.

106. However, if it also important to note paragraph 18 of the Order which states:

18(1) This paragraph applies where an appeal has been made before the transfer date to the Tribunal under section 79M(1) of the 1989 Act against a step taken by the Chief Inspector mentioned in section 79L(1), in respect of which the Tribunal has not reached a decision under section 79M(2).

(2) The appeal shall be treated, from the transfer date, as being an appeal under section 74 (Appeals) of the 2006 Act.

(3) Where this paragraph applies, an appeal falls to be decided as if the step in respect of which the appeal is brought had been taken under the 2006 Act.

107. Section 74 (Appeals) of the 2006 Act provides that –

(1) An applicant for registration or (as the case may be) a registered person may appeal to the Tribunal against the taking of any of the following steps by the Chief Inspector under this Part –

(a) the refusal of his application for registration;

(b) the imposition of a new condition on his registration;

(c) the variation or removal of any condition imposed on his registration;

(d) the refusal of any application to vary or remove any such condition;

(e) the cancellation of his registration.

(2) An applicant for registration or (as the case may be) a registered person may also appeal to the Tribunal against any other determination made by the Chief Inspector under this Part which is of a prescribed description.

(3) A person against whom an order is made under section 72(2) may appeal to the Tribunal against the making of the order.

(4) On an appeal the Tribunal must either –

(a) confirm the taking of the step, the making of the other determination or the making of the order (as the case may be), or

(b) direct that it shall not have, or shall cease to have, effect.

(5) Unless the Tribunal has confirmed the taking of a step mentioned in subsection (1)(a) or (e) or the making of an order under section 722) cancelling a person's registration, the Tribunal may also do either or both of the following –

(a) impose conditions on the registration of the person concerned;

(b) vary or remove any condition previously imposed on his registration.

Burden of proof

108. It was accepted by the Respondent at the commencement of the Hearing that it had the burden of proving, on the balance of probability, that the Appellant has ceased to be qualified for registration in accordance with the Tribunal's Decision of Thorley –v- OFSTED [2006] 0834.EY.

Is this a full merits appeal?

109. Counsel for the Respondent indicated that there was no clarity as to whether the Tribunal were going to be asked to review the decision of OFSTED or whether it was engaged in a total examination of all the evidence. Having looked carefully at the new 2006 legislation and the Regulations made under it and its closeness to the drafting of the original legislation, we have concluded that the Tribunal should deal with this as a full merits appeal and are not engaged in reviewing the decision of OFSTED. We have taken it upon ourselves therefore to engage in a total examination of all of the evidence before us. In this we have adopted the approach of C -v- OFSTED [2002] 87EY. From that decision also we have taken the stance that a failure to comply with National Standards might make an Appellant unsuitable and in many cases it will do so. However it does not necessarily follow that this will be the case.

Conclusion

110. In his final submissions and specifically to assist the Tribunal on issues which were of concern to us, Counsel for the Respondent reminded us that what we were being asked to do was to decide whether or not we concluded on the evidence that if the Appellant remained a registered child minder there was a risk of emotional harm to children in her care. Counsel reminded us that the Act was a safeguarding measure and not a child protection measure. Counsel urged on us that risk of harm therefore was sufficient, it being accepted that no actual harm had been demonstrated. Counsel took us to Standard 11 and urged us to understand that that Standard required a Child Minder to be able to manage a wide range of children's behaviour in a way which promotes their welfare and development. Counsel reminded us that the Appellant's four grounds of appeal:
111. That the cancellation was unfair and unjust;
112. That the Respondent had ignored the evidence provided by the Appellant;
113. The fact it had not investigated the matter properly; and
114. That the appeal before this Tribunal on suspension was unfair because she had not been given an opportunity to speak.
115. We do not intend to deal with the fourth ground as it is immaterial to the outcome of this appeal.
116. Whilst we accept that OFSTED did take into account further information contained from other child minders and interviews with parents of minded children, as we have demonstrated from the evidence that we have set out above and our conclusions on it, it appears to us that OFSTED failed to fairly balance the evidence of the witnesses who were interviewed. No witness, other than the four who specifically gave evidence to us, actually identified any risk to any child being cared for by the Appellant. We were struck by the fact that only two of the complaints came from parents and both those were in contractual dispute with the Appellant. Other than these two parents other parents, at least three, were entirely supportive of the Appellant and her position and each of them identified a real bond between their child and the Appellant. Of the people whose evidence was apparently taken into account by OFSTED the clear majority of them identified the Appellant's behavioural management techniques as being at least satisfactory and giving no cause for concern. Even Heidi's evidence which, whilst describing the Appellant's behaviour management techniques towards birth to 3 as "bad" qualified that by identifying lots of close bonds which the Appellant had formed with minded children and most importantly made it clear that she did not think the Appellant would ever cause harm to a child. When she tried to explain the problems with birth to 3 year olds she described this as being "because of her manner. She lacks patience." She also described signs of improvement, as have at least one or two other witnesses to whom we have referred.
117. OFSTED in their final submissions put much weight on the answers to two questions which have been asked of the Appellant in an interview conducted of her by Lisa Ellis and Lisa Cupples, Child Care Inspectors, when they were reviewing the case. The first question asked the Appellant whether she could do anything different regarding the management of children's behaviour in light of the allegations. In response to that, the Appellant said she" would do nothing different. She had never shown malice towards the children and always looked out for their welfare. She would never allow a minded child to continue to throw drinks over other children without responding and that she had only acted how other child minders would have acted." When asked if there were other occasions when she thought to herself I should not have dealt with it like that, she said "no never, I work to the limits of the Standards and alongside that meet the parents' wishes." OFSTED rely on that as evidence that the Appellant will not change her behaviours.
118. Counsel for OFSTED also helpfully tried to assist us about the evidence that we had heard as to harm. He said that areas of risk of harm were for example the evidence that we had heard about potty training. The Appellant had shown no insight about putting the child on the plastic mat and that might cause emotional harm in the future. The incident about forcing the child to drink would be a clear issue of a potential harm and might affect the development of the child. Similarly making the child face the wall could be seen by the child as humiliating which would cause him long term effects. There was an ongoing risk because of her inability to toilet train correctly. The fact that toilet training had been successful does not mean that damage might not have been done so there were lasting effects into adulthood. He again said there might have been evidence of choking at the time of the forced drinking allegation.
119. Counsel told us that in his view, the incidents around March with the little boy even if there was no "plonking" showed a clear risk of harm. When pressed by us to identify where was the evidence that harm might have occurred or there might be a risk of harm he indicated that highly training OFSTED Officers had decided there was a risk, but it was for us to decide whether that risk existed.
120. We asked him specifically about the implications if we were to find some of the allegations to be unfounded, given that we had been informed at the outset that the March 2008 incidents on their own would not have lead to the decision to remove the Appellant from the register. Counsel again repeated that this was a safeguarding position and that there was a risk of damage occurring behind closed doors. Counsel contended that if we found there was no physical issue about 6 and 13 March taken as a whole there was still a risk of emotional damage to children.
121. Counsel reminded us that in looking at the fairness of the decision, OFSTED were carrying out an administrative and not a judicial function and this is what Parliament intended and they had properly followed the statutory provisions. Whilst we accept that OFSTED may be fulfilling an administrative function they clearly have an obligation to do so fairly and following full enquiries. Whilst we do accept they did fully enquire and in our view went on a clear "fishing" escapade from April onwards to find people prepared to give evidence against the Appellant, what they have failed to do is to identify whether they believed in respect of each incident that the Appellant had done what was alleged against her. It is quite clear that their system properly and fully identifies the complaint which has been made and its outcome but fails to identify whether they believe there was any merit in the complaint. This failure to deal fully with complaints particularly those which are made anonymously puts at risk the fairness of the investigation as does the failure to be share fully with the Appellant the full nature of the complaint.
122. In two cases, clearly OFSTED felt there must have been some merit because they did indeed either make a recommendation to the Appellant or ask the Appellant to take action. After the first incident they made a recommendation. On the facts we have found that it was wrong for them to do so, on the basis of the complaint alone. We note however in any event that an inspection of the Appellant subsequent to this complaint graded her child minding as "good"
123. The second time that OFSTED clearly felt that the concerns were upheld by them was the issue of the tarpaulin sheet. The Appellant quickly and fairly accepted that with hindsight this might not have been a good strategy to use. We have commented and explained our views about this above, but it was not unreasonable for OFSTED to ask for the Appellant to carry out the two actions that they did. We note that by the end of February responses had been received both from her and from parents that these have been properly implemented and that no further action would be taken by OFSTED.
124. We find it surprising that Ms Turner believes that the Appellant's denial of certain key facts means that she has failed to acknowledge that she might have used inappropriate behaviour management methods in connection with the March incidents. No evidence has been given to us, neither has the Appellant ever been told so far as we can see by OFSTED what precisely she did which was in breach of Standard 11, or what strategies she might have used for this particular child with his particular behavioural and communication difficulties. Not surprisingly, she took a defensive approach. Ms Turner seems to totally ignore that the reason the Appellant did not recognise that the force used to make the boy drink was unnecessary was because she denied that she had ever used any force. Ms Turner repeats that stance in her Witness Statement and before us and relies on it as evidence of some breach and failure by the Appellant. In fact it was a clear denial, which we have believed on the evidence is correct, that she did not use any force to make the child drink.
125. For the reasons we have set out above, we have concluded that there is little or no evidence to support the notion that the Appellant has been in breach of any National Standard so as to bring into doubt her suitability to be registered as a child minder. We particularly want to make clear that we find beyond doubt that no child has ever been at risk of physical harm under her care and that there is no child protection issue. In many of the cases the children, the subject of these complaints, have remained in the care of the Appellant. Similarly we can find absolutely no evidence that supports the suggestions that there might have been some risk to the emotional well being of the children in her care. In fact all of the evidence which we have set out above points to the complete opposite. Many parents have been more than satisfied. Many indeed and the majority of the local child minders interviewed believe that the care provided by the Appellant is of a high standard.
126. We find the comments made by Mrs ST in her evidence in writing to us illuminating. Dealing with the reporting of these incidents about the Appellant she says "my idea of a Child Minding group is that we should all be there to support each other and encourage each other in all areas. Unfortunately over the years this has changed drastically, so much so it actually put me off attending some groups as some child minders are so opinionated. We all work individually and run our settings in the way we feel work for the children and people in them, working within the statutory framework for the Early Years Foundation Stages. Like any setting there are individuals in it with different ideas, views and needs. I feel sometimes that in large groups of child minders there can be a lot of difference of opinion in the way individual child minders run their settings and what other people think of this. I think that this sometimes cloud the way they think of each other."
127. This statement appears to us to demonstrate precisely what has happened in this case. Undoubtedly the Appellant has a different style to many other, perhaps younger, child minders. She may indeed be strict, firm and may even have believed her rules were the best way of developing children. None of this in itself means that she is unsuitable to be a registered child minder.
128. We cannot leave this case without commenting upon proportionality and the outcome for children. We are sure that the purpose of all of the action which has been taken by OFSTED has been to safeguard children. The actual impact on the child at the centre of this case in the two March allegations has been catastrophic. Evidence before us shows that no Child Minder in the Lymington area and its wider surrounds was prepared to take on the child. Faced with that witness ST took the child on for four months but had to give him up because she could not cope with him. This is a marked contrast to the evidence which showed that the Appellant was making good progress with this child and was able to communicate with him in Makaton, a skill that very few child minders have. As a result of this, the mother had to give up work and has been unable to pay the rent on her house and has recently been made homeless. The child has had to go and live with his aunt in Bournemouth and is separated from his mother. In balancing the risks in coming to their decision OFSTED seem in our view to have acted totally disproportionately. If we were considering this case by way of a review of the decision of OFSTED we would have concluded the appeal in favour of the Appellant because we conclude that OFSTED did not fairly weigh the evidence and consider which allegations they found proved against the Appellant, and as such could not have fairly reached an opinion as to whether she was suitable to be registered as a child minder. We would also have found that the cancellation of her registration was a disproportionate response to the allegations and that other action could have been taken to address the issues OFSTED were concerned about.
129. For the reasons that we hope we have clearly set out we have concluded that OFSTED have not satisfied us that on the balance of probabilities there is any risk to the emotional well being of children who have been in the Appellant's care or who might have been in her care had she remained registered. We find that whether taken individually or as a whole the incidents relied upon by OFSTED do not demonstrate any material breach of National Standards nor any lack of suitability on the Appellant's part.
130. The Appellant has made clear to us and to OFSTED that she has no intention of returning to being a child minder even if her appeal is successful. Because we find there is no risk of emotional harm being caused actually or potentially to a child by the Appellant, we clearly find that she remains and always has been a suitable person to be registered as a Child Minder and her appeal is therefore allowed.
131. Finally we heard submissions as to whether the restricted reporting order made by this Tribunal on 7^th October 2008 should be continued up to and beyond the date of this decision. We have concluded that it should.

Accordingly, our Unanimous decision is:

132. That this appeal be allowed.
133. That the Restricted Reporting Order of the 7^th October 2008 under Regulation 18(1) prohibiting the publication (including by electronic means) in a written publication available to the public, or inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child, will continue in effect until this Tribunal shall order to the contrary.

Tony Askham

(Nominated First-Tier Tribunal Judge)

David Cook

(Specialist Member)

Judith Wade

(Specialist Member)

Date: 21 January 2009