AM

 

-v-

 

Ofsted

[2009] 1611.EY & [2009] 1712.EY

 

 

-Before-

 

Ms Liz Goldthorpe (Nominated Tribunal Judge)

Mr Jim Lim (Specialist Member)

Ms Sallie Prewett (Specialist Member)

 

 

Decision

 

Heard on 7^th, 8^th, 9^th and 10^th June 2010 at The Care Standards Tribunal, 18 Pocock Street, London S.E.1

 

Representation

 

The Appellant appeared in person, assisted by her husband Mr AM. 

 

Ms Samantha Broadfoot of Counsel represented the Respondents, instructed by Ms Nicola Kincey of the Treasury Solicitors.  

 

Oral Evidence

 

We heard evidence from Mr B, the Appellant’s son, Mr AM, and the Appellant, who had also supplied an undated and unsigned statement.  

 

The Respondents witnesses were Mrs Gillian Cubitt and Mr Stuart Busbridge, Inspectors and Mrs Alison Bailey, a former Assistant Divisional Manager and Compliance Investigation and Enforcement (‘CIE’) Manager, Mr Mervyn Webb, a former CIE Team Manager and Ms Cheryl Walker a CIE Inspector.

 

Appeals

 

1.               The Appellant’s appeal was dated 4^th September 2009.  She initially appealed pursuant to Section 74(1)(e) of the Childcare Act 2006 (‘the 2006 Act’) against Ofsted’s decision dated 17^th August 2009 to cancel her registration as a childminder (Appeal 1– ‘the Registration Appeal’).   On 3^rd February 2010 His Honour Judge David Pearl, Principal Judge, gave the Appellant leave to amend her original appeal form to include an appeal under section 74(2) of the Childcare Act 2006 as provided by Regulation 10 of the Childcare (Disqualification) Regulations 2009 (the Disqualification Regulations) (‘Regulation 10’), against Ofsted’s decision dated 14^th August 2009 refusing to waive the disqualification in respect of her husband under regulation 10 of the 2009 Regulations (Appeal 2– ‘the Waiver Appeal’).  Judge Pearl directed that the waiver appeal be registered and consolidated with the first appeal. 

 

2.         In summary the Appellant’s registration was cancelled on two grounds, namely that:

i)                 As she was living in the same household as her husband, who was a disqualified person by virtue of having a conviction in 1976 for wounding with intent, she was also disqualified under the relevant part of The Childcare (Disqualification) Regulations.

 

ii)                She no longer satisfied the prescribed requirements for registration because by her conduct in failing to disclose details of the alias she had used in the past, under which she had received convictions for prostitution, she failed to demonstrate her role in safeguarding children

 

Preliminary Matters

 

3.         On 23^rd February 2010 Judge Pearl made a third party disclosure order pursuant to Rule 16(1)(b) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (‘the HESC Rules) requiring a named local authority to disclose to the Treasury Solicitor copies of the Complex Strategy Meeting Minutes dated 20^th November and 16^th December 2009 relating to child protection investigations carried out by that authority’s social services department regarding Mrs AM’s youngest daughter.

 

4.         We continued the Restricted Reporting Order under Regulation 14 (I) (b) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 originally made by Judge Pearl on 3^rd February 2010. This order prohibits the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England or Wales of any matter likely to lead members of the public to identify the Appellant, her husband or adult children, or any child or any vulnerable adults. This order continues in force and is designed to protect the identity of the Appellant’s youngest child. Accordingly this decision is anonymised.

 

The Burden of Proof

 

5.               In the registration appeal the burden of proof is on the Respondent to establish on the balance of probabilities that the decision to issue a cancellation notice was appropriate (Thorley v Ofsted [2006] 0834/0835.EY). 

 

6.               In the waiver appeal, we accept the approach as set out in MM v OFSTED [2006] 846 and approved in CF v Ofsted [2010] 1722.EY, namely that the burden of proof is on the Appellant to prove, on the balance of probabilities, consent should have been given to waive the disqualification. In MM the tribunal was applying the Daycare and Childminding (Disqualification) (England) Regulations 2005 but these reflect the Disqualification Regulations for the purposes of this appeal.

 

7.               But in essence, the tribunal takes an inquisitorial, not an adversarial, approach to the hearing.   This is a fact gathering exercise governed by equitable principles and by the overriding objective set out in Rule 2 of the Health, Education and Social Care Chamber Rules 2008 (the ‘2008 Rules’), which states: 

 

(1)(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a)    dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b)    avoiding unnecessary formality and seeking flexibility in the proceedings;

(c)    ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d)    using any special expertise of the Tribunal effectively; and

(e)    avoiding delay, so far as compatible with proper consideration of the issues.

 

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a)    exercises any power under these Rules; or

(b)    interprets any rule or practice direction.

 

(4) Parties must—

(a)    help the Tribunal to further the overriding objective; and

(b)    co-operate with the Tribunal generally.

 

Therefore, the general principle is that each party must provide sufficient evidence to support their case, but where relevant information is available to the Respondents, an organisation with far greater resources than the Appellant, it is for the Respondents to produce that information.

 

8.         We agreed with Counsel that the Respondents should outline their case on both appeals together and give evidence first at the hearing, despite the differing burdens of proof, provided a careful distinction was drawn between the evidence relevant to only one appeal and that which overlapped.   This would enable the Appellant to present her case with the benefit of the fullest possible information, since she had no independent advice or representation other than some basic help from the National Association for the Rehabilitation of Offenders (‘NACRO’). 

 

9.         We also explained carefully to the Appellant that unless she could overcome the hurdle of disqualification her appeal against the decision to cancel her registration must fail.   Counsel reinforced that in a list of questions given to the Appellant in writing on 7^th June, which reflected the key issues set out below.  We also considered carefully the order in which the Appellant should present her evidence and excluded Mr AM whilst Mr B gave evidence.  

 

The Law

 

Registration and Cancellation

 

10.       The statutory framework for the registration of childminders is provided under the Childcare Act 2006 (“the 2006 Act”). This Act establishes two registers of childminders: the early years register and the general child care register.   Section 33(1) requires a person who wishes to provide childminding services to be registered in the Early Years Register. Section 35 sets out the relevant registration process and provides that the application must be granted by the Chief Inspector if a) the applicant is not disqualified from registration by regulations under section 75; and b) it appears to the Chief Inspector that any relevant requirements are satisfied and are likely to continue to be satisfied.

 

11.       Section 36 provides for prescribed requirements to be made for registration and continuing to be registered. These are set out in Part 1 of Schedule 2 of the Childcare (Early Years Register) Regulations 2008, and include the suitability of the applicant, provision of an application for an enhanced criminal record certificate in respect of themselves to the Chief Inspector, and compliance with the Early Years Foundation Stage (‘EYFS’) welfare requirements. These requirements include addressing the learning, development and welfare needs of young children.  The prescribed requirements for registration under the 2008 Regulations must continue to be met if an existing registration is to continue.  

12.       The welfare requirements are regulated by The Early Years Foundation Stage (Welfare Requirements) Regulations 2007.  Regulation 3(3) places a duty on providers to have regard to the guidance in the document “Statutory Framework for the Early Years Foundation Stage”, which applies equally to a provider who was practising before 1^st September 2008.   Section 3 of this document states: “Providers must ensure that adults looking after children, or having unsupervised access to them are suitable to do so.”  

 

13.       Cancellation of registration is governed by section 68 of the 2006 Act.   The chief Inspector may cancel registration if it appears to her that a) the prescribed requirements for registration of the individual have ceased, or will cease, to be satisfied and c) that the registered individual has failed to comply with a regulatory requirement.

 

Disqualification

 

14.       For the reasons set out in the facts, the relevant decision on disqualification was not actually made until the Respondents considered whether the Appellant should have her registration cancelled and, in effect, reviewed the circumstances leading to her registration.   This raised the issue of whether the appeal against the waiver decision invoked the 2007 Regulations or the 2009 Regulations. 

 

15.       The complexities of the disqualification and waiver regime turn at least in part on the transfer of responsibilities from local authorities in England to Ofsted in September 2001 for regulating under 8s childcare under Part XA of the Children Act 1989.  The original power of waiver available to local authorities before September 2001 was not given to Ofsted until the Education Act 2002 and Children Act 2004 amended Part 10A of the Children Act 1989.   As the 2004 consultation letter explained, “The proposed regulations contain a longer list of offences and orders which would normally disqualify someone, but give Ofsted the power to override that when circumstances indicate that they pose no threat to children. This power of waiver is similar to that which was available to local authorities before September 2001.”  The Explanatory Memorandum to the 2005 statutory instrument stated “In re-introducing this we wanted Ofsted to be able decide whether to register persons who may otherwise be disqualified, providing that there is no threat to children.”

 

16.       The 2006 Act then replaced the provisions under the Children Act 1989 and section 76 set out the consequences of disqualification from registration as they applied to the Early Years Register (‘EYR’).   For the purposes of this appeal, a disqualification and waiver regime was available to Ofsted under the Day Care and Child Minding (Disqualification) (England) Regulations 2005.  These regulations specifically defined categories of people who were disqualified from registration as childcare providers. They also provided a power under Regulation 9 to the Chief Inspector to waive disqualification in certain circumstances. The Education Act 2002 also amended section 79M of Part 10A of the Children Act 1989 to allow for appeals against decisions in respect of the use of the power of waiver.

 

17.       Schedule 2 paragraph 1 (i) (f) and 1 (ii) of The 2005 Regulations, was replaced by similar provisions in Regulation 3(5) of the Childcare (Disqualification) Regulations) 2007, which came into force on 6^th April 2007.   The 2007 Disqualification Regulations were amended in 2008 so that the Chief Inspector could waive disqualification for all or any of the purposes set out in section 76(2) of the Act.   From 1^st September 2009, the 2007 Regulations were replaced by The Childcare (Disqualification) Regulations 2009.  

                            

18.       Under regulation 4(8) (a) of the 2007 Regulations, a person is disqualified if they have been found to have committed an offence against a person aged 18 or over, mentioned in paragraph 2 of schedule 4 to the Criminal Justice and Courts Service act 2000 (‘Schedule 4’).  This schedule covers offences under section 18 or 20 of the Offences Against the Person Act 1861, which includes wounding with intent.  Regulation 2(2) of the 2009 Regulations provides that a person has committed a relevant (i.e. disqualifying) offence if a) they have been convicted of an offence or, d) on or after 6^th April 2007, had been given a caution by a police officer in respect of an offence after admitting that offence.   The offences are those set out in Schedule 4, the only difference being the addition of a caution to the relevant categories. 

 

19.       The Disqualification Regulations 2005, 2007 and 2009 all made provisions in respect of disqualifying offences, i.e. those that would lead to an individual being disqualified from childminding and all of them provided for a power of waiver and appeal.  They also provided that anyone with whom a disqualified individual lives is automatically also disqualified.  All these Regulations gave the Chief Inspector a discretion to waive the disqualification from early years provision where otherwise the individual would be automatically disqualified. 

 

20.       Section 74 of the 2006 Act gives the right of appeal against decisions or determinations of the Chief Inspector.   On appeal, the tribunal must either confirm the original decision or decisions or allow the appeal with or without conditions.  For both appeals the hearing considers matters afresh so we were not confined to a review of the facts before Ofsted at the date that they made their decision. 

 

21.       Section 74 provides that on an appeal the Tribunal must either—

(a)        confirm the relevant decision, or

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

In the latter case, the Tribunal may also impose conditions on the registration of the person concerned.

 

22.       By virtue of Regulation 2(2) of the 2009 Regulations, the tribunal cannot go behind the fact of the convictions.

 

23.       Insofar as it is relevant to consider whether there is any issue of harm or risk of harm to children, “ harm” is defined by reference to section 31 (9) of the Children Act 1989, namely “ ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill treatment of another”.

 

Standard of Proof

 

24.       The standard of proof applicable to appeals to this tribunal is the civil standard of proof, i.e. on the balance of probabilities.   That is a lower standard of proof than the criminal standard i.e. ‘certain so as to be sure’ (or as it used to be known ‘beyond all reasonable doubt’).  In paragraphs 31 and 32 of In re B (Children) FC [2008] UKHL 35, Baroness Hale stressed the importance of oral evidence in reaching decisions based on this standard, “especially from those who were present when the alleged events took place”, stating that in making up their minds whom to believe, judges are guided by many things, “including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses…if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other.”   She concluded at paragraphs 70 and 72 that the standard of proof “is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies…As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability”.

 

25.       In short, there is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had to inherent probabilities, to whatever extent that is appropriate.   It is this test that we apply.  

 

The issues

 

26.       As set out by Counsel for the Respondents these were:

 

i)                 is Mr AM still part of the Appellant’s household?

ii)                If he is, should the appeal against the refusal to waive his disqualification be allowed?

iii)              If the appeal against the refusal to waive the disqualification is allowed, or the tribunal found that the couple had permanently separated, did the Appellant nonetheless remain unsuitable for registration by reason of her failing to be open and honest with Ofsted, and in particular by her lack of candour in her CRB application?

 

27.       At the request of the Panel, Counsel gave the Appellant a more detailed breakdown of these issues in the form of a list of questions as follows:

firstly, in respect of the waiver appeal;

i)                 what evidence was there to prove that Mr AM lived elsewhere?

ii)                How long had he lived away from the marital home?

iii)              Why did he live away from the marital home?

iv)              What evidence was there to support ii) and iii)?

v)               How often was he at the marital home?

vi)              Was there any evidence to back up his explanations about his convictions?

vii)             What evidence was there to show that Mr AM was a ‘reformed character’?

 

Secondly, in respect of the appeal against cancellation;

 

i)                 why did Mrs AM not disclose her previous names on her CRB?

ii)                Did the Tribunal accept her explanation?

iii)              Did she understand the welfare requirements, in particular the need to ensure that unsuitable people are not left unsupervised with minded children?

iv)              Did her past offences and her explanations make her unsuitable to look after minded children?

 

Background

 

28.       The Appellant is married woman with 3 children, two of whom are adults.   By her own account, Mrs AM became pregnant at 15 and homeless:  her son, Mr B, is therefore now aged 27.   Mr AM came to this country from Jamaica in 1960 and, by his own account, was abandoned by his parents.  Mr and Mrs AM have been together for some 30 years and married for 18 years.   They have 2 daughters, the youngest of whom is now aged 6.   Mr AM has a history of convictions from 1969 to 1991, including two convictions in 1986 and 1991 respectively, of living off immoral earnings (or living on the earnings of prostitution as it is now termed).

 

29.       The Appellant applied for registration as a childminder on 31^st March 2006 and completed a CRB Enhanced Disclosure Form.  Ofsted were unable to provide a copy of the original form signed by the Appellant because it routinely destroys such forms within 3 months of receipt.   It was also unable to locate a copy of the standard form then in use.   However, the Appellant accepted the contents of the current form were not dissimilar. Under the heading “Additional personal details”, in three separate boxes the form asks for the applicant’s surname, and any other surname or forename used and the dates from when these were used, and the explanatory notes advises applicants to “provide details of any other names used at any time during your lifetime and the dates during which the names were used”.   The Appellant did not deny she had replied in the negative to the questions about any other names.   The form also asks whether the applicant has any unspent criminal convictions.   The Appellant appears to have attended a pre-registration induction course after she had filled in this form.

 

30.       Her husband, Mr AM, also completed an Enhanced Disclosure Form.   This revealed that he had a conviction in May 1976 of wounding with intent under section 18 of the Offences Against the Person Act 1861 (‘OAPA 1861’).   This offence is listed in paragraph 2 of Schedule 4 to the Criminal Justice and Court Services Act 2000, which should have meant that Mr AM was disqualified under the relevant disqualification Regulations.  However, the Ofsted officer responsible for processing the Appellant’s application did not treat this as a disqualification offence.    

 

31.       Therefore the Appellant was duly registered as a childminder on 13^th April 2007 to care for a maximum of 5 children under 8 years of age at her home.   At this point she lived at the premises with her husband and her 3 children, the daughters then being 15 years and 4 years old respectively.  Until January 2009 Mrs AM was also a volunteer at her local primary school.   

 

32.       There were no concerns or adverse reports about the Appellant’s childminding service and Ofsted had no criticism of Mrs AM’s ability to care for children.  On first inspection on 7^th May 2008, the quality and standards of her care were found to be good.

 

33.       On 3^rd October 2008 a local authority social services department referred an anonymous complaint to Ofsted.   The informant alleged the Appellant had worked under a different name as a prostitute, had convictions for prostitution and had served time in prison.  The informant, who was almost certainly the Appellant’s sister, also alleged Mr AM had received a prison sentence for firearms offences.  Having telephoned the Appellant on 7^th November to inform her Ofsted were aware she might have had another identity, Ms Cubitt and a local authority social worker visited her on 10^th November. The Appellant freely admitted that in the past she had used an alias and had convictions for prostitution.  At this point she was caring for one child part time, but another 5, including a child aged 10, were due to be placed with her.

 

34.       A separate allegation of domestic violence in 2007 that was reported by police as part of their checks was subsequently found to have been completely false.

 

35.     A Police National Computer search revealed the Appellant apparently had 78 convictions for prostitution under an alias and confirmed that Mr AM had two convictions for living off immoral earnings and a number of other convictions for offences such as theft and possession of an offensive weapon. On 17^th November 2008 Ofsted suspended the Appellant’s registration as a childminder for an initial 6 weeks whilst it conducted investigations into her suitability and that of her husband. 

 

36.       During these investigations both the Appellant and her husband completed new Enhanced CRB Disclosure forms, which were submitted for processing on 14^th November 2008.  Ms Cubitt and another Ofsted inspector interviewed the Appellant and her husband the same day, but the Respondents’ subsequent investigation was subjected to prolonged delay due to the failure of the CRB and the police to process the application relating to Mr AM.  Although Mrs AM’s CRB check was received on 21^st January 2009 and disclosed that in fact she had 69 convictions (not 78 or 79 as variously stated previously), Mr AM’s took many months to be processed was not received until 3^rd July 2009.  Ofsted made a number of protests including two formal written complaints, firstly to the CRB Customer Relations Manager and then to the Chief Executive and the Appellant also made representations through her MP, all to no avail.   As Ofsted rightly pointed out, this had a severe impact on the decision-making process as various meetings and decisions had to be postponed as a result. 

 

36.       There were a total of 7 extensions to the period of suspension, punctuated by regular reviews of progress. The Appellant continued to care for one child without payment, having told the parent about the circumstances. Ofsted made unannounced inspection visits during the period of suspension and were satisfied, despite further allegations by the previous informant, that the Appellant was not continuing to childmind whilst suspended. On 4^th February 2010 an Ofsted inspector was also satisfied that, the Appellant having already informed the Respondents her husband was no longer living at the premises, there was no evidence he resided there.

 

37.       In March 2009 Ms Cubitt and her colleagues decided to continue chasing the CRB for a response, rejecting the alternative option of considering Mrs AM’s suitability on condition her husband was absent when children were minded. On 23^rd March the Appellant requested a review of the suspension, stating that her husband was not usually present when children were being minded and was willing to reside at a relative’s address until the CRB checks were completed, with any home visits being supervised closely by her. The application was refused on 25^th March on the basis that the investigations were still in progress.  In April 2009 Ofsted decided that without the CRB check no further decision could be taken on the review request.  On 28^th April 2009 the Appellant informed Ofsted that she had now lost the children who were to be placed with her as their parents had had to make alternative arrangements.  She had made an application for youth work but was continuing her childcare diploma studies.  

 

38.       On 9^th July, having finally received Mr AM’s CRB check, which confirmed his convictions including living off immoral earnings and possession of a firearm, Ofsted officers agreed the 1976 conviction was a disqualification offence.  Ofsted wrote to the Appellant on 10^th July to confirm that she was disqualified by virtue of her husband’s qualifying conviction and sent her a waiver application to complete. On 14^th July Ms Cubitt and a colleague interviewed Mr and Mrs AM about the convictions and explained the disqualification position. 

 

39.       It extended the suspension for a further 6 week period, confirming that it was not satisfied with Mr AM’s responses regarding his convictions and continued to believe that there was a risk to minded children in the light of the unresolved concerns about the Appellant’s suitability and integrity. At a strategy meeting on 24^th July 2009 Ofsted decided to cancel the Appellant’s registration in the light of the CRB checks.  The seventh suspension notice was issued on 29^th July and on 30^th July 2009 Ofsted issued a Notice of Intention to cancel the Appellant’s registration.

 

40.       The Appellant applied for a waiver on 30^th July 2009 and provided further supporting information on 3^rd August.   On 11^th August Ofsted refused the application citing concerns about Mr AM’s pattern of offending and his responses at interview which led them to believe he had not taken full responsibility for these offences.  It took the age of the disqualifying offence into account, but noted that there had been other convictions since that time.

 

41.       On 17^th August 2009 Ofsted issued a Notice of Decision to cancel registration.   Its reasons were that:

·        the Appellant was automatically disqualified from registration because her husband was already disqualified

·        Ofsted considered she no longer satisfied the prescribed requirements for registration and other regulatory requirements because she had withheld information on her CRB form which effectively meant details of her previous numerous convictions for prostitution had been withheld from Ofsted during the application process, which raised concerns about her ability to work with Ofsted in an open and honest manner regarding her registration and in particular about suitable persons on the premises and that she lacked the necessary integrity and was therefore no longer suitable to remain registered. 

·        Ofsted found that Mr AM’s new CRB check showed a pattern in the number of convictions relating to violence and carrying weapons.   It acknowledged most of them had occurred when he was young, but there was a conviction only 10 years ago and a recent caution for possession of a blade.   It was concerned about his suitability as a household member and her openness:  “you have stated throughout this checking process that there would be no new information on your husband’s CRB check since you first applied for registration…Given the number of concerning convictions and offences we are worried that again you have not been forthcoming in sharing this information with Ofsted prior to these new checks being carried out.”   

·        When provided with the opportunity on 14^th July 2009 to explain his convictions to inspectors and to acknowledge his awareness and understanding of these convictions on minded children, Mr AM had not given plausible responses or clear explanations, did not appear to take responsibility for his actions, often laying the blame elsewhere.    Ofsted remained concerned about his long history of offending.

·        Although both the Appellant and Mr AM had told inspectors on 14^th July that they did not keep any contact with people from their past did not associate with any unsavoury characters, and would not let such people into their home even if they were family members, Ofsted remained concerned about the potential risk of harm to minded children given that two other family members had committed offences, one of whom was in prison for a serious sexual offence and the failure of the Appellant to explain why it was important to safeguard children from unvetted and unsuitable people or what her responsibilities as a childminder were to keep child safe from a potential risk of harm.

 

42.       On 21^st August 2009 Ofsted informed the Appellant that the grounds for suspension no longer applied and she could continue to childmind.   A letter to the parent of the child still being cared for on a voluntary basis stated “we have completed our enquiries and have found out the grounds for suspension no longer apply.   This means that we will lift the suspension from 21 August 2009 and that Mrs AM will be free to resume childminding under their existing registration.” (our emphasis).  No other information was given.    

 

43.       At a decision-making discussion held on 24^th August there were mixed views about whether there was a potential risk to minded children or whether any such risk fully met the threshold for suspension.  It was noted that no complaints had ever been received about Mrs AM’s childminding and she had given assurances her husband would not be present when children were minded nor would she leave children unsupervised.  But there was concern that lifting the suspension would send “mixed messages” to the Appellant when a decision had already been made to cancel her registration.   A decision was taken to lift the suspension whilst giving the Appellant “an adequate explanation” that in spite of this, she would be committing an offence if she provided childminding services because she was automatically disqualified anyway.   The decision was recorded as follows:  “the childminder will be able to resume childminding again until the Tribunal make a decision about the Notice of Decision to cancel or until the childminder’s registration is cancelled.” [sic – our emphasis]

 

44.       On 23^rd November during a monitoring visit, Mrs AM told an inspector that her husband had never had anything to do with the minded children, that he was no longer living on the premises and she would not allow him to have unsupervised access to any minded children in any event.   She said she was “stringent on protecting children at all times and of protecting herself.”   At a further monitoring visit on 4^th February 2010, Mr Busbridge was satisfied that there was no evidence to suggest Mr AM was living at the premises.

 

The Evidence

 

45.       We read a bundle of 697 pages of written evidence.  We also received further evidence at the hearing from the Respondents consisting of Ofsted Case Commentary notes, a Memo List with copies of all entries for contacts from the registration application process up to 28^th May 2010 (‘the Memo List’), the 2007 Regulatory Support Application records, a copy of the Enhanced Disclosures dated 30^th June 2009 (for Mr AM) and that of 22^nd February 2010 for the Appellant, and from the Appellant evidence regarding her husband including utility bills and character references.

 

46.       In Ofsted’s Registration Toolkit the inspector noted Mrs AM was due to attend her compulsory childminding registration course from 6^th May 2006.   The inspector also recorded she had seen the marriage certificate dated 14 February 1992 and that Enhanced CRB checks had been completed for all family members, including Mr AM.   She was satisfied Mrs AM met all the criteria for registration and had an understanding of child protection issues.

 

47.       The Memo List contained an entry dated 31^st August 2006 from an officer suggesting that if there were further delays in CRB and health checks Mrs AM might be better to withdraw her application, an entry for 21^st July 2006 confirming the concern about Mr AM’s CRB check and another recording receipt on 29^th September 2006 of the outstanding CRB check on Mr B. It also contained notes of various contacts with the Appellant including telephone calls from her on 31^st July and 18^th August 2009.  On 31^st July she provided comments on the suspension letter to explain her husband’s difficult childhood and to fill in the apparent gaps in his explanations.   She said he greatly regretted his past and its impact on her ability to childmind.   The information dated 18^th August was new evidence in that it had not appeared anywhere else in the evidence filed by the Respondents.   Mrs AM was recorded as having said that she had shared enough personal information but now thought she should report that her husband had left the household in July, information she had hitherto held back for personal reasons. She asked for clarification about whether she continued to be disqualified.  The officer sought advice from Mrs Bailey who confirmed the Appellant should be told she “was no longer disqualified” and advised of her right of appeal against the decision to cancel her registration as the relevant notice had been issued. The officer confirmed this to the Appellant who stated she wished to make a formal complaint about having been registered in the first place.  The record of a further phone call showed the Appellant was told later the same day by another officer that “if we lift the suspension she can continue to mind until she receives a tribunal date and a decision is made by the tribunal to either agree with her and decide that Ofsted should not have cancelled her registration, or alternatively that Ofsted was right to cancel her and then she must stop minding completely.”   The officer also explained that if she did not appeal then she would be “automatically cancelled after 28 days and must stop at this point.”   There were no detailed notes of Ms Cubitt’s subsequent visit on 25^th August to indicate precisely what further explanation or clarification was given to the Appellant.

 

48.       The Appellant’s explanations about her past use of an alias and her convictions were given during interviews, telephone calls and in her own documentation.  Ms Cubitt’s notes of the two initial interviews in November 2008, recorded the Appellant had told her she had used an alias when she was a student trying to earn money by “acting as a female escort” because she was hoping to study law eventually and had not wanted a criminal record. She had not told her husband and he said he knew nothing about her past.  She had not intended to deceive, had considered the convictions as spent and said the guidance on the CRB form was not clear.  The notes of the second interview recorded Mrs AM’s denial she had been a prostitute but had just enticed men into clubs: she said police would class prostitution and escorting as the same because both involved money.  In her statement Ms Cubitt confirmed that the Appellant had claimed the explanatory notes to the CRB form were unclear, which had led her to believe there was no requirement to disclose her alias.  She also confirmed the CRB on Mr AM had “revealed serious convictions.”

 

49.       A Case Officer’s notes of a telephone call from the Appellant on 19^th November 2008 recorded that Mrs AM had raised the convictions issue, telling her she had been working as a club tout, which had resulted in a number of fines, ending in a few days imprisonment for non-payment.  The notes of a further Ofsted interview on 10^th July, recorded Mr AM was clear his wife had never been a prostitute and he had had no part in her activities: he felt very guilty about his past and the fact this had stopped his wife being a childminder.  Both were firm about not accepting “any unsavoury persons” into their home. This included another of Mr AM’s children who had not ever lived with him and was serving a prison sentence for a serious sexual offence.

 

49.       In her initial appeal form, the Appellant explained her failure to disclose her previous convictions in her registration application as an unfortunate oversight.  She claimed she had been confused about the CRB question on unspent convictions, believing her convictions were “civil not criminal”.  In her undated statement in support, she said she had had no advice on how to fill in her first ever CRB form and had regarded parts of it as ambiguous: she had interpreted ‘other names’ to mean legal and permanent name changes arising from marriage, adoption or deed poll.  She had also been suffering from lack of sleep at the time due to her daughter being ill for several days. Prior to the inspectors’ visit on 10^th November, a friend with legal training had pointed out the mistakes in the form. She had apologised to the inspectors and explained the circumstances, saying she had used an alias to prevent her mother finding out about her activities and to avoid difficulties in pursuing a legal career. She had been otherwise open and transparent with Ofsted, had cooperated fully despite a very long period of suspension, considerable delays by the CRB and the police and her inability either to afford or obtain legal advice without payment.  

 

50.       There was no copy of the original CRB form completed by Mr AM.  The original process of registration had been prolonged for a variety of reasons, but an entry on the Memo List for 21^st July 2006 showed that an officer had alerted her colleagues to the fact that this CRB check was not clear and required a check decision.  Despite this, other written evidence appeared to suggest Ofsted had been insufficiently aware of Mr AM’s convictions until his second CRB check in 2009.   The notes of the interview with him on 14^th July 2009 showed he had given various explanations of the circumstances of his convictions. His 1968 conviction for possessing an offensive weapon was the result of being stopped by police for wearing a studded belt. The disqualifying offence in 1976 was the result of a knife fight with a friend, during which he had cut him on the arm, an incident he very much regretted.  He admitted he was mixing with the wrong crowd when first convicted for living off immoral earnings in 1981.  The 1991 firearms offence had occurred when he had been given a package to look after but was not aware of the contents until the police opened it when they searched the house.  He said as a black man he was regularly stopped and the caution had occurred when police found a small knife in his car he had been using for repairs.  The Case Officer’s recommendation not to waive disqualification noted he was living with his wife and recorded concern about “his long history of offending and the pattern of his offences, in particular violence towards other adults and carrying dangerous weapons in public….[his] most recent offence was only 10 years ago when he was 46 years old and was cautioned for possessing a knife in a public place.”

 

51.       In her statement the Appellant maintained her husband was a reformed character but they were no longer living together.  She did not permit him to enter the house when she was caring for the one child, even when he was collecting their daughter for contact visits.  She had nearly completed a Diploma in Home-Based Childcare and wished to continue childminding.  She stated she fully understood Ofsted’s concerns but was anxious to reassure and reiterate that her “drastic errors” had not been a deliberate ploy to mislead anyone but a genuine belief her convictions were spent and did not need to be disclosed.

 

52.       In her application for the waiver, the Appellant explained her husband’s family background had been very difficult.   When he was 3, his parents had come to the UK from Jamaica as part of the Windrush exodus, leaving him and 3 of his siblings to be cared for by relatives.   He had joined his parents in the UK at 7 years old but his turbulent childhood led to a lack of contact with his parents and had left him with feelings of anger that coincided with the period of his offending.   She had helped him to seek counselling, which had had a beneficial effect on family relationships.  He had deep regrets about his past offending, had been open and honest about this and the only offence he had denied was the assault with intent to rob in 1970, which he still maintained was a case of mistaken identity.  He had been a positive role model to her son.   She said she was fully aware of the importance of safeguarding children as well as the need to protect her own family and would not allow unsupervised access to minded children by any member of her family.   Studying for a diploma had given her a deeper insight into the need for raising standards and constantly strived to improve her own practice.

 

53.       She addressed what she described as the “awful dilemma” that she and her husband had been presented when one of his older children was convicted of “a terrible sexual offence” for which he had received a life sentence some 2 years previously.   They had agreed he posed “a great danger” to their family and she was clear this was a child protection issue for both her children and those children she minded.   If he turned up at the house when she was on her own she would call the police and would seek an injunction to prevent him returning.

 

54.       She also addressed her own convictions for “loitering with the intent of prostitution”, saying she had pleaded guilty to these even though she was not a prostitute.  She explained she had been a club tout, which involved approaching lone males and encouraging them to enter clubs, for which she would receive commission. She had done this to sustain her family: due to two pregnancies, she had been unable to finish her education or to afford qualification courses despite being offered a place at South Bank University.  She had not include her convictions on the CRB form because she had been advised that her convictions were spent and was not aware this did not apply to enhanced CRB checks:  she repeated she had been confused by the reference on the form to ‘spent’ convictions.

 

55.       She described herself and her husband as responsible people who had made mistakes in their respective pasts, but were determined to improve the opportunities they offered to their children. Her son had academic qualifications, her first daughter was going to college and her second daughter was settled happily into school.   She felt strongly that, despite past mistakes, she was able to offer a safe environment for children and a professional childcare service of a high standard that afforded children protection, rights and access to the outcomes set out in Every Child Matters.   In a further email on 3^rd August 2009 she had emphasised her husband accepted full responsibility for his past actions and provided more detail on the circumstances of some of his previous offences, including the caution for possessing a knife, stating that he was frequently stopped by police but this was the only occasion there had been an issue of concern and he was not in the habit of carrying weapons.

 

56.       The local authority children’s services department conducted a separate investigation in accordance with their statutory safeguarding duties. Complex Strategy Meetings were held between October 2008 and July 2009 and attended by Ofsted inspectors including Ms Cubitt.  The local authority’s final decision was also affected by the CRB delays.   It concluded that, noting there had been no previous referrals to social services, there was no evidence to justify any further checks, including checks on Mrs AM’s own children.

 

Evidence at the hearing

 

57.       It became clear that Ofsted had known about Mr AM’s history of offending at the time of his wife’s registration application, which included the two offences of living on the earnings of prostitution. Witnesses also said they were trained to ask questions about the CRB forms. Ms Cubitt said inspectors dealt with very few waivers and decisions on registration were always put through to managers to check.  

 

58.       In her oral evidence Ms Cubitt said she had made weekly calls to CRB and had “made a nuisance of herself”.  She had taken contemporaneous notes on her laptop at interviews.   She had been checking CRB forms since 2001 and the current one was identical to preceding versions.  She confirmed that enhanced CRBs had been completed for Mrs AM’s husband and son and she did not know why the disqualification had not been picked up, although she had only dealt with one in 9 years.   She conceded that the information about Mr AM’s convictions, including the conviction in 1991 for living off immoral earnings, was known at the time of the registration application.

 

59.       Mr Busbridge said trust was a vital part of maintaining the integrity and effectiveness of the system and for safeguarding children:  this depended on those registered or seeking to be registered being open and honest in all their written and oral dealings with Ofsted.   Withholding information made it difficult to evaluate any

potential current risk.   The CRB form was very clear and it was highly unlikely the Appellant was confused.   The scale and nature of concerns about Mr AM had left Ofsted with no alternative but to cancel her registration since he had not provided any firm grounds for believing that potential risks of such behaviour had now been removed.  Mr Busbridge did not believe it would be possible to ensure open and honest communication with the Appellant since the receipt of inaccurate or misleading information made it extremely difficult to establish a proper working relationship.  

 

60.       He conceded the lifting of the suspension had been the subject of debate and explanations about the legal reasons and implications were likely to be confusing:  he thought the phrasing in the letter was misleading and did not know why it had been expressed like that.   He referred to the process as treading a tightrope between what was legally acceptable and providing information that recognised the bar on sharing concerns with a parent.   He accepted the letter gave the impression to the parent that she could send her child back to be minded by the Appellant but said the responsibility was on the provider to explain the real situation as it was her information.   He then said possibly Ofsted should have taken the decision earlier ie when they decided the offence was a disqualifying one, it should have been explained to her then, although he would have thought the inspector had explained the position to her in a thorough discussion about the legal position.

 

61.       Ms Bailey took us through a detailed explanation of the Ofsted system and the recorded history of the case using internal documentation on her laptop.   This showed that a team manager had dealt with a reported concern about Mr AM’s CRB check in 2006 but had not recognised the disqualifying conviction.   Mrs Bailey said she thought this was because disqualification was automatic then and there was no power of waiver until the 2007 Regulations.  But she conceded that as Ofsted were expecting these Regulations to be introduced it should have taken more care.  She maintained that the information about Mr AM’s convictions had not been known to the officer conducting the registration visit as the CRB check was not back by then.   The sole reason for the length of the registration process was the delay in the health check.

 

62.       Mrs Bailey said she recalled speaking to the officer who had taken the call from Mrs AM on 18^th August 2009 and explained the disqualification no longer applied if Mr AM was no longer living with his wife, and she could provide sufficient evidence in the form of official documentation to satisfy Ofsted this was the case and the relationship had therefore ceased.   She explained that once the decision to cancel had been made the suspension could not continue but the combined process of disqualification, suspension and cancellation were undoubtedly confusing.   She had not checked what explanations or clarification Ofsted staff had given and accepted that the relevant letters could have made the position clearer.

 

63.       In her statement, Mrs Bailey had said that when the powers of waiver were introduced, Ofsted had decided a national panel should deal with all applications for waivers in order to develop a consistent threshold in recognition of the gravity of the decisions being made.   She was a member of the panel that considered the Appellant’s application for a waiver and confirmed the reasons for refusal included the panel’s rejection of the Appellant’s explanation she had been confused by the CRB form.  This was not accepted because it was not one of the reasons she had put forward previously.  Mrs Bailey confirmed that attendance at the induction evening and the compulsory childminding preparation course is intended to advise applicants on how to fill in CRB forms and the implications for registration before embarking on that process and provides a great deal of material to assist them.

 

64.       Mrs Bailey accepted that Mr AM only had one firearms offence, in 1991, and that the only offences that came into the category she had termed sexual offences were the convictions for living off the earnings of prostitution.  She also accepted that it would have been more helpful to decision-makers if the offences had been more explicitly described as categorising these as sexual offences implied some form of sexual assault.  She conceded that Mr AM’s explanation for the caution he had received in 1998 for possessing an article with a blade in a public place was not unreasonable.  She reiterated that she had been concerned about a pattern of offending over time that involved violence and prostitution and the level of acceptance and exploitation this implied.  

 

65.       She remained concerned that there were continuing connections and contact with criminals and that the Appellant would not be honest with Ofsted or with parents in the event of a fight or a violent incident.  There was a risk that children would witness violence and the Appellant would be unable to explain this to a child.   She accepted Mrs AM had been very clear that her husband’s other son, the sexual offender, would not be allowed into the house but she did not know if she could trust her on this or that she was capable of protecting children.  She had never met the Appellant before the hearing but it was clear she had intentionally misled Ofsted in order to become registered and whilst the resons for that might be understandable, they were not acceptable.   Therefore, Mrs Bailey did not know what Mrs AM might say in order to remain registered.   Mrs Bailey told us she was sympathetic to the Appellant’s desire to put the past behind her but she could not place sufficient trust in her:  she was unable to quantify the risk Mr AM presented and could not rely on Mrs AM to keep Ofsted informed taking account of the whole picture.   Cross-examined by the Appellant she said parents would expect childminders not to have convictions, but convictions were not necessarily a bar to registration.  The key was the assessment of risk taking into account the attitude of the relevant people in the household.  Mr AM had portrayed himself as just part of the circumstances rather than taking direct responsibility for his actions.

 

66.       Mr AM’s evidence was hindered by his inability to recall dates or the sequence of events with any great clarity:  he freely admitted he relied on his wife as his memory.   To the extent that he recalled events, he was candid about his past life, admitting quite freely he was a serial womaniser, who had fathered several children to different mothers both before and after he met the Appellant.   He told us he had first met her when she was 16 and he was 28, and said he believed she was working in a typewriter company at this point.   He had met her again a year later and started living with her about a year after that.  He described their relationship as on and off for about 10 years but they had now been married for about 16 years.

 

67.       Mr B, the Appellant’s adult son, has not lived at home for some years, and has his own family.   He was unaware of his mother’s activities or her convictions

 

68.       Mr AM did not seek to deny he had a series of convictions dating back to 1967.  He described himself as ‘a bad boy’ in his early years.   He explained his first conviction in 1986 for living off immoral earnings was the result of a relationship with a woman who he knew was a prostitute.   He accepted in hindsight that although he had never lived with her, the conviction was probably correct because he had received gifts from her and to that extent he was benefiting from her activities.  

 

69.       He was adamant in his denials about any involvement in drugs.

 

70.       In December 1991 Mr AM was convicted for a second time of living on the earnings of prostitution and was sentenced to four months imprisonment.  In the course of giving evidence to us, Counsel produced a Court of Appeal judgment from which it was clear Mr AM had appealed against this conviction, challenging the definition of prostitution.  Both had accepted Mr AM lived at least partly on his wife’s earnings in that they shared their living expenses.   Therefore the main issue in the case was whether he was thus living on the earnings of prostitution knowingly.   The prosecution said at that point he had lived with her for 11 years, the past five of which she had on her on own account been a clipper, but not a prostitute.  From the evidence at the initial trial it appeared she had said she had been doing this for four or five nights a month, earning up to £400 on a good night.   A key part of the judgment included the summing up by the judge at first instance, which referred to Mrs AM’s evidence to the court in which she said: “Yes, I do offer sexual services, but I do not mean to make that offer good.”

 

71.       The appeal was dismissed. In its judgement the Court of Appeal held the crucial feature in defining prostitution was the making of an offer of sexual services for reward. The distinction between “clippers” and “hookers” was immaterial:  a "clipper" was a woman who offered sexual favours for reward but took the money without the least intention of providing the favours and was nonetheless a prostitute, albeit a dishonest one.  Therefore a man who lived off the earnings of a clipper was guilty of living off the earnings of prostitution and most people might consider such earnings doubly immoral.  

 

72.       Confronted with this judgment, Mrs AM said a clipper was someone who worked as a tout at clip joints, rather than as described by the court.  Mr AM denied the evidence in the judgment that he had driven his wife to work or assisted in her occupation.  Both said the evidence given by the police officers that they had observed her with Mr AM and at in various places in the West End she had offered both officers sexual favours in return for money had been inaccurate and untrue.

 

73.       Mrs AM told us the only other members of the family who presented a risk were Mr AM’s son, who had been in foster care and was now in prison, and her sister who was a drug user.   Her sister’s partner had attacked Mr AM several years ago:  Mr AM reported the attack to the police and the man received a custodial sentence.   According to Mrs AM she disapproves of this sister’s lifestyle and has had no contact with her for at least 5 years.  She believed her sister had learned of her current life through their mother and jealousy was the motivation for the passing on information about Mrs AM’s past.

 

74.       The Appellant made it clear she had been very confused about the lifting of the suspension, the process and implications of her disqualification status and her registration.   She had not fully grasped the consequences of this at the time and thought it meant she could resume childminding.   She had not been aware of any restrictions and had only understood the real position for the first time at the hearing, i.e. that she was barred because her husband was disqualified.     

 

The written submissions

 

75.       Both parties were directed to make closing submissions in writing.   The Appellant had the opportunity to comment on the Respondents’ submissions.

 

76.       For the Respondent, Ms Broadfoot argued that in summary, the relevant questions were

i)                 was Mr AM still part of Mrs AM’s household?  

ii)                If he was, should the appeal against the refusal to waive his disqualification be allowed?   This, she argued, turned on the nature and number of his convictions and the evidence as to his character now

iii)              If the appeal against the refusal to waive the disqualification was allowed (or the tribunal found that the couple have permanently separated) did the Appellant nonetheless remain unsuitable for registration by reason of her failing to be open and honest with Ofsted, and in particular by her lack of candour in her CB application?

 

77.       The Respondents doubted the reality of the separation.  Ms Broadfoot argued that this was a question of fact and degree and absence from the home was not necessarily sufficient to prove that Mr AM was not  “living in the same household” as the Appellant.   She cited case law from other jurisdictions in which the distinction between ‘living together’ and the term ‘household’ had been considered – the latter being a term referring to “people held together by a particular kind of tie, even if temporarily separated”.  In Gully v Dix [2004] 1 FLR 918, a claim under the Inheritance (Provision for Family and Dependants) Act 1975, the court had relied on section 1(6) of the Matrimonial Causes Act 1973 and the judgments in Santos v Santos [1972] Fam 247 and Witkowska v Kaminski [2006] EWHC 1940, to conclude that the central issue was whether the parties recognised the marriage as subsisting.   That involved considering attitudes of mind, the court recognising that the judicial determination of which in a particular case may on occasions be great.   Nevertheless, the ties of relationship sufficient to satisfy the test of whether a couple were a household or not were based on a number of different elements, including:

·        “the public and private acknowledgement of their mutual society”

·        “the mutual protection and support that bind them together”

·        a transitory interruption, serving as a pause for reflection about the future of a relationship going through difficult times but still recognised to be subsisting or “a settled acceptance or recognition that the relationship is in truth at an end…an irretrievable breakdown of the relationship.”

 

78.       She argued that theirs was an engineered, and temporary, separation, citing such factors as the length and nature of the marriage, Mr AM’s desire for a reconciliation, the reasons for the separation, the pressure of these proceedings, and their current domestic and financial arrangements.  Although Mr AM was not currently living at the marital home, nevertheless he was still part of his wife’s household for the purposes of the 2009 Disqualification Regulations, and Ms Broadfoot submitted that it would be right to dismiss the disqualification appeal on the basis of Mr AM’s convictions alone.  

 

79.       The tribunal could not go behind the fact of the convictions and Mr AM had:

·        given explanations that must be rejected as inconsistent with the fact of the conviction and, in one case, with the facts set out in the appeal judgement

·        sought to minimise certain offences, but received a prison sentence for at least one of these, i.e. his conviction for living off immoral earnings in 1981

·        a history and pattern of offending that showed a serious lack of responsibility and criminal associations, a failure to take responsibility even now for his past actions or to tell the truth about the circumstances of his offending

·        a caution, the circumstances for which he had given implausible explanations

 

80.       The evidence also reflected poorly upon his character and was sufficient to justify dismissing the appeal even without taking into account the additional evidence about the Appellant’s own lack of honesty.

 

81.       Ms Broadfoot also argued that whilst the acceptance of the disqualifying offence at the time of registration was wrong, it was understandable given the lack of power to waive at that point in time.   Furthermore, this error could not prevent Ofsted from relying on its subsequent exercise of its powers.

 

82.       If the disqualification appeal were allowed, nevertheless it would be right to dismiss the registration appeal on the basis of Mrs AM’s unsuitability by virtue of her lack of honesty and integrity, because she had:

·        deliberately omitted from the CRB disclosure application the alias she had used and in which name she had convictions for prostitution in order to deceive Ofsted

·        given an inconsistent and changing account of the circumstances in which she had omitted the alias and the reasons for so doing, as shown by her varying responses over time

·        given an explanation about her activities that was inconsistent with the evidence ,in particular the record set out in her husband’s appeal against conviction for living off immoral earnings

·        had failed to be honest with Ofsted from the outset or to be honest with Ofsted or the tribunal in her subsequent explanations.

 

83.       The Appellant had the assistance of NACRO in completing her submissions but said she had not had the time to respond in as full or considered way as she would have wished due to other commitments.   She denied either she or her husband had been untruthful, deceitful or disingenuous or that they were not to be trusted.   The fact that there were inconsistencies between their respective accounts suggested they had not been manipulating the facts in order to gain registration.

 

84.       However, the Respondents relied on events a long time in the past to justify its claim that it could not trust her. This ignored the critical evidence that there was no suggestion she was a risk to children, and ignored the quality of her childminding and her proven ability to nurture and support children, ensuring their development in line with good practice.

 

85.       She described the Respondents reliance on case law from a different jurisdiction to define the term ‘household’ as a legal nicety with little relevance to her own situation.  Mr AM did not live in her house any longer and had not done so since August 2009:  this was not a temporary situation and the fact that for the first time in some 30 years of marriage they had not lived together for 10 months was an indication in itself that the relationship had changed.   The separation had not been engineered as shown by the fact that it had occurred some five months after Ofsted had refused her request in March 2009 to lift the suspension.

 

86.       Mr AM had left the marital home with no permanent address to go to, so had not removed his name from the electoral register.  He had stayed at various addresses at various times, including the home of his stepson.   Any perceived conflict in his evidence and that of his stepson did not mean Mr AM was living in the marital home at the time, and in any event undermined any notion of conspiracy.  She conceded she had not claimed any additional benefit entitlements because she did not know whether the separation was going to become permanent, but subsequently she had provided the tribunal with utility bills in her sole name.  After 30 years and two daughters, there was every reason to maintain an amicable relationship.  

 

87.       She recognised the tribunal had to accept the convictions at face value, but asked to note he did not deny any of the offences (bar one).   She argued the behaviours that lead to convictions raised a number of subjective issues:  these were not necessarily as clear cut as the convictions themselves and might well result in explanations for the convictions that might appear to be inconsistent with the bare fact of conviction.  

 

88.       It was unrealistic to believe that the charging of offenders was an exact science or that scrupulous care was always taken to match a category of offence to the description of the behaviour that led to the offence or that courts convicted on the basis of absolute certainty.  Mr AM was not inventing anything:  the fact that his explanations did not always comfortably fit with the offence labels did not necessarily mean he was lying.

 

89.       The only offence he absolutely disputed was the attack on his female neighbour following a house break-in, but this was by no means the most serious and it was difficult to see what advantage he would gain in disputing only one offence amongst many.   Mr AM had a right to feel aggrieved that the neighbour had later admitted the attacker was her husband, but too late to prevent Mr AM serving his sentence.

 

90.       The Respondents were naïve in their grasp of the accuracy of police record keeping and had failed understand the significance of past media coverage about this issue and the transfer of this work to the Court Service.

 

91.       Whilst the Respondents were right to take into account Mr AM’s history and pattern of offending generally, this implied the 1976 disqualifying offence would be insufficient to justify disqualification.   That was a valid view given the conviction was 34 years ago and committed at the age of 24:  to rely on that offence after this length of time would be unreasonable.  Furthermore, the pattern showed he had stopped offending a long time ago:  all the offending, apart from one offence in 1991, had been prior to 1981.   She argued Mr AM was fully rehabilitated and presented no risk, asking us to note that he had not retaliated when seriously attacked in 2004, but had pursued the perpetrator through the judicial system, resulting in imprisonment for his attacker.   The 10 year gap in offending until 1991 undermined the Respondents sweeping assertion that the 1991 conviction showed he was still associating with other criminals and in any event suggested that he was not himself committing offences.

 

92.       The Appellant challenged the assumptions made about prostitution, asserting that the Court of Appeal’s definition was a legal nicety rather than a reflection of what most people understand prostitution to be about. She suggested that a lay person might not recognise it, but would regard ‘having’ sex in return for money as prostitution “rather than what I did”, and to that extent her husband’s evidence was perfectly valid.   It was also important to recognise that the conviction was 19 years ago.   Whilst the jury had found Mr AM guilty of living on earnings of prostitution, it did not follow he was necessarily lying when he said evidence had been fabricated by the police, a possibility that the Respondent appeared to doubt had ever happened.

 

93.       She said Mr AM’s explanations for the circumstances that led to the caution were entirely plausible.  This was only time he had been caught with a knife and the pocket knife was not in the car for any sinister purpose, hence the caution. If he were a regular knife carrier, there would have been other convictions and cautions given the considerable number of times that he as a black man has been stopped and searched.  The theory of the cautioning process differed from the practice and in very many instances the formal niceties are not observed and people leave the police station unaware that they have been cautioned. This demonstrated the Respondents’ detachment from the real world.  It did not follow that just because a knife was less than three inches long that the police would not issue a caution.  Given police practice, it was perfectly possible that Mr AM had received the caution by post:  it was also possible his memory was faulty, but that did not necessarily mean he was lying.

 

94.       The Appellant reiterated she had used an alias in order to prevent her mother who lived locally reading about her arrests in the local newspapers.  She did not dispute she had not disclosed this alias on the CRB form but maintained this was because she mistakenly believed her convictions were spent after three years. She had waited three years before applying to register as a child minder.  Her belief that spent convictions did not show up on CRB Disclosures was supported by the implication behind question 66 on the application form.

 

Tribunal’s conclusions with reasons

 

The Waiver Appeal

 

95.       The first issue we were invited to consider was whether the Appellant had shown on the balance of probabilities that Mr AM was no longer part of her household.  The Respondents’ key submission on this issue was whether the relationship had “irretrievably broken down”, which are the grounds for divorce.  It seems to us that this test is too stark and does not reflect the reality of marital separation, particularly in the context of a longstanding relationship in which the couple have lived together for 30 years and have two children, one of whom is still very young.   We prefer the alternative tests:  is the interruption transitory, does the relationship still subsist, or has it been extinguished?

 

96.       We gave the Appellant the opportunity of not giving evidence in her husband’s presence, but she was content to do so.   In that context the nature of their relationship was clear – he depends upon her and her body language was enough to show that she has had enough of his philandering.  Whatever he believes about the future of the marriage, it is to his credit that he has continued to maintain contact with his daughter and continues to make financial contributions to his family. The sad reality for this couple is that whilst Mr AM believes in the possibility of reconciliation Mrs AM’s evidence clearly showed he was no longer living with her and the potential for reconciliation was much weaker. 

 

97.       We gained the impression that Mrs AM has been the dominant partner in the relationship and Mr AM has relied on her very heavily.   To an extent, she has ‘carried’ him during the marriage.  From the description of their current arrangements it is clear they have not severed all ties, indeed to do so would be to undermine the strong sense of duty both have towards their children and the clear affection they still have towards each other.   Despite the fact that the reasons for the separation centre on Mr AM’s continued philandering, to their credit they have managed to retain good relations and to behave in a mature and responsible, even good-natured way towards one another, not least for the sake of the children.   Indeed, not to have done so would have laid them open to criticism for failing to behave as good, responsible parents, a charge laid against many other separating couples who may be accused of causing considerable detriment to their children.   In that sense, the Appellant cannot win: she would have been damned if she said otherwise and the Respondents now seek to damn her because she did not conceal the current arrangements.

 

98.       All the evidence in support, including the utility bills, the letters from family friends and the oral evidence of Mr B, supported to some degree the view that there had indeed been a separation of some months.  There was no reason to doubt the veracity of Mr B, the Appellant’s adult son:  we accept he knew little of his mother’s past life and was somewhat preoccupied about his own life to recall, or to even to want to know, the exact details of the marital separation.   In this context, the precise commencement date and reasons for his stepfather’s presence in his house do not assume the importance attached to them by Counsel and are not proof that either Mr or Mrs AM have been lying about the length and nature of the separation.

 

99.       The Appellant made the point that the separation had not occurred until 5 months after she had asked Ofsted to waive the disqualification.   We accept the primary reason for the separation was her husband’s behaviour and we are satisfied they are not living together in the same household.   But it is worth noting that since we could impose conditions on her registration anyway, we do not necessarily regard this issue of the household as fatal.

 

100.     In those circumstances, the second issue we must consider is whether it would be right to uphold the refusal to waive disqualification.   We cannot go behind the fact of the convictions, save for the caution in 1998.   Furthermore, with some reluctance, we agree Ofsted’s failure to treat the 1976 disqualification offence as such is not a bar to it subsequently using its discretion to reach the conclusion that the disqualification should not be waived.   Nevertheless, we are entitled to take Ofsted’s failure into consideration when reaching conclusions about the overall conduct of this case and the effect upon the Appellant.   We are also entitled to look at any circumstances surrounding the convictions insofar as they relate to issues arising from the Respondents’ specific invitation to look at the history and pattern of Mr AM’s offending and the impact that perception had on Ofsted’s decision-making.

 

101.     We have examined that alleged history and pattern in determining whether it is now right to exercise our power to waive the disqualification.   We have also taken into account Mr AM’s marked inability to remember anything in any great detail let alone salient events in his life such as the birth of his children.  He freely admitted he relied heavily on his wife to recall such matters.   In assessing Mr AM’s credibility we note the change in his somewhat laid back demeanour when expressing his disapproval of drugs and his strong view about the nature of his other son’s conviction.

 

102.     In determining the pattern of Mr AM’s offending the history of the convictions can be divided into 3 distinct periods.   The first of these periods ends in 1970 and is made up of 5 different convictions mainly centred on offences of dishonesty, all committed whilst he under the age of 18.   Mr AM only disputed the offence of assault with intent to rob.   We have attached no weight to these convictions for the purpose of assessing Mr AM’s credibility having concluded that, insofar as they impact on our decision, these were juvenile offences committed a long time ago and against a very difficult family background.  Mr AM’s youth and the account he gave of his family history lend credibility to his explanations of this period.

 

103.     A gap of 6 years with no offending was followed by a second period from 1976 to 1981, in which Mr AM was convicted of 3 very different offences that could be said to reflect a response to a chaotic lifestyle.  As he freely admitted, these convictions showed he had been out of control. The first of these was the disqualification offence in 1976 of wounding with intent, contrary to s.18 of the Offences Against the Person Act 1861.   We note this was 34 years ago when Mr AM was 24 years old.   Whilst disregarding any element in his explanations that might be said to go behind the fact of his conviction, we observe that his account of the circumstances that gave rise to the event was entirely credible.   If this account was the one he gave at the time of his conviction, then there is little doubt that, as he himself recognised, he over reacted to the provocation and should have walked away.   We were told he is now a friend of the victim and he assured us he would not react like this again.   We do not regard his explanations to us as amounting to an attempt to lie about the events or to minimise them.

 

104.     We did not go into the circumstances of the second offence of breaching bail conditions save that we noted it was committed whilst he was on remand.   But the third offence in January 1981 is of greater concern, in that, at the age of 31, Mr AM was convicted for a second time for living off the earnings of a prostitute and received a 2 year prison sentence.   He appears to have been at least on the margins of criminal activity up to 1981 and only later acquired sufficient insight into the consequences of his behaviour.  His belated recognition of his guilt did show he had achieved a measure of maturity and insight.   He has certainly had an opportunity to reflect upon the effect of this history upon his wife’s chosen career as a childminder.

 

105.     Mr AM served one year of his 2-year prison sentence for the 1981 conviction.   We note that this was followed by a 9-year period in which Mr AM had no convictions at all.  On leaving prison in early 1982 he met up again with the Appellant, then still only a young woman, and began living with her.  At this point she was working in and around Soho clubs but says she told him she was working as a cloakroom assistant or bar staff.     

 

106.     We believe it is reasonable to conclude that whatever attention he paid to the Appellant’s ‘agenda’, there must have come a point when he knew the real nature of her employment.   He was clearly worried about her as well he might be given at the very least her age and the circumstances in which she was, as she put it, ‘touting’.   She had convictions for prostitution between 1986 and 1995 and there was a quality of truth about his account of his concern about her.   If Mr AM did know the reality of his wife’s activities at an early stage of their relationship, nevertheless It was evident they managed to protect her son from the consequences.  

 

107.     Mr B was very clear his mother and stepfather had brought him up very well, with a strong emphasis on protecting him from risk and on ensuring he had a good education, enabling him to get a good job.   Mr B was unaware of his mother’s history of activity up to 2002, even at an age when he might well have been sufficiently cogniscent of such matters – most notably, he said she was helping with the issues in his life rather than burdening him with her problems.  He came across as a well-adjusted and sensible adult with a relaxed attitude to being stopped by the police, for which Mr and Mrs AM must be given considerable credit.  

 

108.     There is no proof whatsoever that Mr AM engaged in any pattern of offending during the period from 1981 to 1991, so if there was a previous pattern, it had apparently been broken by this stage and he kept out of trouble for some years.   Given the disproportionate number of times black people were (and still are) stopped by the police (as amply illustrated by Mr B’s evidence) we believe that if Mr AM had been involved in any criminal activity he would have had convictions for this 9 year period. The most that can be surmised is he may have been associated with offenders but he was not in the thick of any serious criminal activity.  

 

109.     The third set of convictions is critical, both connected and arising in 1991 from a report to the police that Mr AM was selling drugs, which led to his house being searched.   There is absolutely no evidence that Mr AM has ever had any dealings with drugs and no drugs were found during this raid:  he has no convictions that point directly or indirectly to such an offence.   We note he was at his most animated in giving evidence about the issue of drugs.  The first of these convictions was possession of a firearm in circumstances that we accept were most unwise.   That was discovered in the same raid that apparently led to the discovery of conviction records relating to the Appellant.   We find that if he was not aware of her activity before then he most certainly was wholly aware at that point.   We accept that the one police raid led to the relevant convictions and the failure to meet bail, but were dealt with by two different departments of the police and run as separate charges and convictions. Therefore, this is one event, not a pattern of events for this set of convictions.

 

110.     Witnesses for the Respondents referred to evidence of ‘a continuing history of offending’.  There is a pattern, but it is divided into particular periods that do not necessarily support the Respondents’ contentions.

 

111.     We do not accept the Respondent’s contention that Mr AM sought to minimise the seriousness of his conviction for living off the earnings of prostitution during his interview in 2009.  The notes of the interview support the view put forward in the appeal and in the supporting evidence, i.e. that neither the Appellant nor her husband actually believed she was a prostitute in their terms, to the extent that he appealed against his conviction to the Court of Appeal.  By contrast, we note that he did not appeal against his earlier conviction elsewhere for the same offence.   We also note the Appellant was clear that, whilst she was wholly prepared to accept the fines for prostitution, neither she nor he were prepared to accept he was living off immoral earnings.   It is clear that both participated in his appeal and it appeared there was a form of morality operating in their approach to this issue and in their determination to overturn the conviction.   In effect, he accepted he was living off her earnings, but neither accepted that these arose from prostitution.  Neither of them accepted that the definition of prostitution included what the Appellant was doing at the material time:  in effect, they regarded the definition as a form of ‘catch-all’ for those working in the sex industry.

 

112.     We note Mrs Bailey thought Mr AM’s explanation of how he came to be in possession of a knife some 10 years ago was reasonable.  As for the circumstances of the caution we do not think his understanding of the situation was beyond credence.   As an example of what can happen, we note that in CF v Ofsted [2010] 1722. EY the tribunal accepted the Appellant was genuinely not aware that she had received a caution until she saw a copy of the CRB check in January 2010.

 

113.     There was no evidence before us from either Social Services or the police that there are any current concerns about Mr. AM, and we note there seems to have been some confusion about whether Mr AM presented or presents a risk to children.   The Chair of the strategy meeting on 24^th July said she would be referring Mr AM to the new Independent Safeguarding Authority as she was concerned that he should not be involved in the care of children.  However, the suspension was lifted because the threshold was deemed not to be satisfied.  

 

114.     We are satisfied that the Appellant is no longer living with her husband and were he to return she would be more than capable of controlling the circumstances in which he had access to the household.

 

The registration appeal

 

115.     The Appellant made her application to become a childminder some 4 years after her last conviction for prostitution.   She did not seek to deny she had failed to provide her alias on the CRB form and gave various explanations that have a certain substance.

 

116.     The Respondents were clear that the issue of dishonesty was central to this case:  the Appellant had been dishonest with Ofsted and had continued that dishonesty at the time of the appeal and during the hearing.

 

117.     The Court of Appeal judgement clearly set out a description of the Appellant’s    activities at the time of her husband’s convictions together with an apparent admission at his trial that she had been a clipper.   Nevertheless, she sought to persuade us that she had not been a prostitute and that the facts set out in this appeal judgment were incorrect.     

 

118.     The differences in her evidence as reported by the Court of Appeal and her subsequent oral and written evidence to Ofsted and then to the tribunal, goes directly to the issue of her current credibility and that of Mr AM.   It is important to be clear that this evidence is not just a matter of minimising the seriousness of the conviction, but a question of whether either of them had lied to the Respondents, and then lied to us.

 

119.     In the absence of any evidence to the contrary, it would appear that the Appellant accepted in 1991 she was clipping (in the sense that she was offering and taking money for sexual services with no intention of carrying out the act), but later sought to deny this to Ofsted and subsequently to us.  The evidence from the Court of Appeal judgment appears to rule out any conclusion other than she was clipping.   The question then is, if either of both can be said to have lied or at least attempted to mislead, is that sufficiently serious to justify the conclusion that the refusal of a waiver was, and remains, correct.  

 

120.     We have no doubt that in the murky world of the sex industry there is no such thing as an accurate job description.  The terminology used by providers, customers and those responsible for policing the streets and clubs may well be as loose as the morality involved.  We are not persuaded by Counsel’s reliance upon the Appellant’s changes in terminology as evidence of the Appellant’s dishonesty.

 

121.     Despite her attempts to explain the differences, the Appellant herself would no doubt have no argument with the view that in the minds of the public the terms ‘female escort’, ‘club tout’, ‘prostitute’ are distinctions without a difference and all carry with them much the same moral approbation.  The boundaries between activities have a tendency to slide into murky obscurity when confronted with the realities of streetlife.  The Appellant’s past and her accounts of it are no doubt clouded by her own experiences and perceptions of life and her evident desire to escape from that past.  Ofsted stressed it had not applied any moral judgment to her history, and the fact of her convictions was not necessarily a bar to registration.   Nevertheless, many people can have little notion of the reality of such activities and on the face of it there is no reason why they should, but it is important to guard against unacknowledged perceptions that may affect impartial judgment about an individual’s approach to the truth.  We have no evidence to suggest what Ofsted’s conclusion would have been had it known about the convictions in 2006/2007.

 

122.     The real importance of this unusual case and the key to its progress and outcome has been Ofsted’s reliance upon its view of the Appellant’s honesty and integrity.   Quite rightly, it argues that public confidence in the system has to be maintained and it must be able to rely upon having an honest and open relationship with providers.   Registration authorities frequently need to make judgments about the suitability of those whose work involves caring for children and vulnerable adults and they cannot make these judgments unless they can rely on the individuals concerned to be open and co-operative and to give accurate information.   Ofsted were entitled to expect the Appellant to be frank and truthful with them, and to have read and understood the legal requirements for registration as a childminder. They needed to know that children were being cared for by a suitable person in a safe and suitable environment and that unsuitable people were not living on the premises. It was Mrs AM’s responsibility to satisfy them about all these things.

 

123.     In circumstances where an individual desperately wishes to overcome such an adverse past, they may well be all too aware, albeit subconsciously, that absolute honesty will do them no favours whatever.  Judged by that standard, if Mrs AM lied, she did so fuelled by the very strong desire to put the past behind her and to gain a foothold on a respectable career path.   However, that does not necessarily mean she cannot be trusted to work with Ofsted in future.   In both respects the Appellant and her husband demonstrated a desire to put a gloss on the past but also an admission with hindsight that they had both made mistakes.  

 

124.     As Mrs Bailey rightly recognised, a conviction of itself does not necessarily mean that a person must have their registration cancelled, nor does a past life as a prostitute.  The Respondent (and the tribunal on appeal) must look at the whole picture in making their decision.  The Appellant’s convictions were not offences of dishonesty relating to child care or the running of an organisation, and they did not involve behaviour that put children at risk. Indeed there is evidence to suggest that certainly her eldest son was remarkably unaffected and indeed protected from her activities during his upbringing.

 

125.     Cases concerning dishonesty largely fall into 2 categories:  those where the Appellant is to be judged by professional standards, ie by some identifiable Code of Conduct or by the standards set by the profession in which they have qualifications eg social worker, teacher, nurse etc. Those individuals are judged by the expectations of the level of trust and confidence by the public based on those professional standards.

 

126.     The second category of cases centres on the running by individuals of services eg care home, childminding etc. If that individual has convictions for dishonesty, it is all the more likely that a tribunal dismiss an appeal because it will perceive rightly that users of services, particularly those who are vulnerable, have a right to expect standards of honesty and trustworthiness from providers or their employees and there can be no confidence in someone who, for example, is prepared to steal or cheat.

 

127.     The Appellant’s offences are not comparable to, for example, the owner or manager of a care home with convictions for theft.   Where the convictions have no such direct bearing on the service to be provided, the issues must be judged by the standard of openness and integrity to be expected by the regulatory body in its relationship with the provider.  Furthermore, most individuals offering childminding services cannot usually be judged by the standards of a professional business person.   In the relationship with the regulator the balance of power is reversed:  the regulator has the power to deny or to remove someone’s livelihood based on its perception of their honesty and trustworthiness.   We must judge this by reference to some reasonably independent and neutral evaluation and a test that takes account of human frailty but does not put vulnerable service recipients at risk.  It is not a question of making value judgments, but of deciding whether, on the balance of probabilities, the evidence amounts to conduct with such serious implications that we must conclude that the Appellant is not suitable to be registered as a childminder.  In so doing it is also important to draw a distinction between matters that are essentially historic and those that are current.

 

128.     Mrs AM appears to have made attempts to pursue a career in law on at least two occasions, and managed to get on a course for access to law in 2002.   That last attempt was brought to an end by the birth of her last daughter.  She undoubtedly wanted to become a good childminder and did so with some apparent success until the revelations about her past.  She was clear that she had closed the door on that past and in that sense she obviously does not fall into that category of appellants to this tribunal who continue activities that are inconsistent with registration and the standards to be expected of those who are registered.  On the facts of this case, it is useful to compare the case of YD v GSCC [2006] 0739.SW-SUS where the appellant was advertising herself as a prostitute through an escort agency, whilst also currently employed as a social worker.

 

129.     Mrs AM came across as an intelligent and personable woman with many good qualities.  We would not describe her evidence as necessarily evasive, nebulous or convoluted or an instinctive defence mechanism, but delivered from the perceptions of a woman with a different view of a world she has chosen to try and escape from. Her conduct throughout a very difficult and prolonged registration investigation and a complex and difficult appeal process had been exemplary, as Counsel readily acknowledged. It is clear that she has made great efforts to overcome her own very damaging upbringing.   It is to her credit that she appears to have managed not only to protect her children from the effects of that and from her offending behaviour, but, judging by the favourable impression we gainedcreated by her son during his evidence, has managed to produce at least one adult child of whom she is rightly very proud.

 

130.     We note that Ms Cubitt said at one of the Complex Strategy meetings in November 2008 that, after a bad start, the Appellant had pulled herself together and started a new life for herself. She described Mrs AM as a “pleasant and likeable character…actively cooperating with Ofsted…very honest with the minded child’s mother..[who was] reportedly happy for AM to continue looking after her child...”   In discussions with colleagues in April 2009 she observed she was impressed by the Appellant’s commitment to continue her training and to remain positive throughout this prolonged process. 

 

131.     Mrs Bailey, who had not met the Appellant prior to the hearing, based her views and her decisions on what she had read.   She was a persuasive witness who said in oral evidence that Mrs AM had “cooperated really well during an incredibly difficult suspension period that went on far too long”. 

 

132.     We have a great deal of sympathy for the Appellant in her attempts to create a new life for herself and we are persuaded that she has been successful, albeit somewhat late in life.  She has conducted herself not only with great restraint and impeccable behaviour, but has also continued to pursue training opportunities and to advance her knowledge of childcare and the responsibilities of childminding throughout a very difficult and prolonged period that would have challenged the patience of many.  This reinforces the need to judge this Appellant by reference to her current conduct rather than by her history. 

 

133.     We have decided to allow this appeal subject to attaching very stringent conditions to Mrs. AM’s registration.  As an expert Tribunal we have taken account of the very real difficulties of protecting children against contact with unsuitable individuals but we believe Mrs AM is a strong character who has a good deal of valuable experience in dealing with difficult circumstances and people and is fully capable of safeguarding children.   There is no evidence that the children she minded in the past were ever at risk and we do not believe that any future children will be at any more risk than other children who are minded.

 

134.     We gave careful consideration to Mr AM’s involvement and any potential risk he might pose to any minded children. The balance of power in the marital relationship leads us to believe that even if he did return, Mrs AM would be more than capable of dealing with him.   We do not believe he presents any real risk, if he ever did, but for the sake of any doubt, and to ensure that Mrs AM is fully supported in her future role, we make the following conditions:

 

i)                 Mrs AM must take all reasonable steps to ensure that Mr AM does not visit the home during the hours of childminding unless in an emergency, for example in the event of illness or accident of his and Mrs AM’s own children. Alternative arrangements would be expected.

ii)                Mrs AM to inform Ofsted if she intends to resume co-habitation.  Mr and Mrs AM to be made aware that this is likely to lead Ofsted to conclude that Mrs AM’s registration as a childminder should be cancelled once again.

iii)              Mrs AM to report to Ofsted if she believes she has had to take steps to safeguard children in her care, for example in refusing entry to unsuitable persons such as her sister or Mr AM’s convicted son.

iv)              Mrs AM to report to Ofsted if any family member or member of the household is involved in any kind of police investigation.

v)               Mrs AM to inform all parents of children minded at the time of registration that Mr AM is not allowed to have contact with children as he is disqualified from childminding due to his 1976 conviction for wounding an adult with intent

 

We note Ofsted’s undertaking to write to Mrs AM making the position regarding a resumption of full cohabitation with Mr AM clear.   We would stress that we regard it as important for Ofsted to set out clearly to Mrs AM in writing what is expected of her in taking account of all of these conditions.   

 

135.     Finally, we would make a number of observations about this case that have concerned us:

 

a)         Ofsted’s conduct of the initial registration process

This is open to criticism and we are not persuaded by the explanation given by the Respondents for the initial oversight.

• The right to apply for a waiver of disqualification has existed since (if not before) the Day Care and Child Minding (Disqualification) (England) Regulations 2005 that came into force on 3^rd October 2005 and which provided for waiver under Regulation 9.  A refusal to waive the disqualification would have triggered a right of appeal to this Tribunal under Regulation 11. 
• Furthermore, Ofsted had access to the details of Mr AM’s convictions for living off the earnings of prostitution and the inspector would have seen the couple’s marriage certificate.   We are surprised no connection was made in the inspector’s mind or that of the manager responsible, that might have led to further questions about the circumstances of the second conviction. 

 

b)         The suspension process

Ofsted’s subsequent issuing of the separate and confusing decision letters regarding the suspension are also to be criticised.  The letter stating she could recommence childminding was utterly misleading and in the circumstances wholly wrong.   We note there was little challenge to the well-founded criticism that the process at this point was unacceptably confusing, poorly explained and not well understood even by Ofsted officers.

 

c)         The CRB checks

Severe criticism must be made about the completely unacceptable delays on the part of the CRB and the police.  These delays caused a long period when absolutely no decision could be taken to resolve matters for the Appellant either by Ofsted or by social services.   Ofsted did its best to put pressure on but the situation was wholly unacceptable, which their officers properly acknowledged had huge financial implications for the Appellant. Bizarrely, the position got so bad that in late June Ofsted seriously considered submitting a fresh CRB check on the basis that this would be quicker.  The eventual explanation in June 2009 that the volume of applications and the lack of police staff were to blame was given far too late and by that stage must have sounded very hollow indeed to a very distressed Appellant

 

d)         Conducting an appeal

·        In a case as complex as this, involving dual issues of disqualification and registration further complicated by Ofsted’s original error, the absence of public funding to provide the Appellant with proper advice and representation must cause some alarm.   The Appellant’s original interest in pursuing a legal career and her undoubted intelligence are no substitute for the proper safeguards to enable any appellant to conduct their case fully and fairly.   We are indebted to the Respondents’ Counsel for her skilled and sympathetic assistance to the Appellant within the proper confines of her professional code of conduct, but that is also no substitute for proper advice from an independent representative with knowledge of the relevant law and the ability to address the difficult issues faced by the Appellant.

·        We note that public funding is available for some other tribunals such as the Employment Appeal Tribunal, and it is unfortunate that the difficulties faced by childminders have not yet been recognised as meriting the same support in circumstances where their livelihood has been removed and may be permanently removed.  As Baroness Hale pointed out in the Kerr judgement referred to above: 'The general public cannot be expected to understand these complexities.. It would have been difficult if not impossible for the claimants adequately to represent themselves on the issues these cases raise ...Whilst nothing we say can or should be taken as a judgment on the merits of any application for funding, had there been no legal representative to put the claimants' case, the resulting inequality of arms would have been a real concern.”  We do not believe that good quality information, effective procedures and well-conducted hearings, and competent and well-trained tribunal members, are sufficient in themselves to enable childminders to conduct their own appeal, particularly one that involves issues such as this one.

 

136.     As a result, the Appellant would be perfectly justified in feeling very aggrieved about a series of events that began with an application for registration that the disqualification should have denied, followed by the loss of her livelihood for a very long period of time and the necessity to conduct her appeal in such difficult circumstances.  She is not without blame in that process but it is a testament to her integrity that she has conducted herself throughout with dignity, restraint and good humour.   She has also not resorted to paid childminding nor engaged in any other behaviour that might be described as deceptive.  

 

137.     We have not treated Ofsted’s concerns lightly and to a degree we share them, particularly given the utmost seriousness with which such matters as the CRB check must be dealt with.   But we must judge matters as they are now.  In many respects, Mrs AM gave a good account of herself that in the final analysis was sufficient to overcome Ofsted’s objections.   We have no doubt she has learnt a great deal from this experience and certainly understands what is expected of her in her dealings with Ofsted:  Mrs Bailey was generous enough to overcome her doubts and say that Ofsted would make every effort to repair the relationship in the event of a successful appeal.   We believe the Appellant has the ability, insight and motivation to restore Ofsted’s confidence in her capacity not only to provide a good service, but one based on an open relationship with the regulator that is not tainted by the past.   We recognise the serious errors she has made, and the probability that she has been guilty of some evasion and even untruth in her registration application.   Her history means she may not fall into the category of the usual run of childminders, but there is little to convince us that she presents a risk to children or that her future suitability is in serious question.  She presented as evidently very genuine and determined to keep up her commitment to childminding good practice.  We are persuaded that she has retained the capacity to be a good childminder and one who is most unlikely to place any vulnerable child at risk. Most importantly, there was no evidence that her previous care of children raised any concerns from either Ofsted or from the parents of children she minded, indeed the very opposite.

 

138.     We accept that whilst Mr AM is not guilty of any current offending and his current presentation suggests there is cause for optimism, his past offence did come within the category for disqualification and was part of a history of offending.   Therefore we accept there is a level of legitimate concern and an issue of public confidence that need to be addressed.   We believe it is right to do so by imposing certain conditions that make it clear any suggestion of a return to the past offending behaviour on the part of either Mr or Mrs AM would be unacceptable.  It seems to us that the overriding purpose of the regulatory legislation, which is to safeguard children, can best be served by balancing optimism with appropriate caution.

 

139.     Accordingly our unanimous decision is that the appeal against cancellation is allowed with the conditions set out at paragraph 134. By reason of the fact that the Appellant is no longer in the same household as her husband, she is no longer a disqualified person under the Disqualification Regulations and therefore the waiver appeal is dismissed.

 

ORDER:

 

i)          Appeal against cancellation upheld with the conditions set out in paragraph 134 above.

ii)         Appeal against waiver dismissed

 

 

 

Ms L Goldthorpe

(Nominated Tribunal Judge)

Mr Jim Lim

Ms Sallie Prewett

 

Date: 31^st August 2010

Decision amended under Rule 44 of the The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008

12^th November 2010