AC v Ofsted

This is an appeal against a decision dated 3 December 2003 of Her Majesty's Chief Inspector of Schools (OFSTED) under regulation 3 of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 to suspend the registration of the Appellant as a child minder.

At the hearing, the Appellant was represented by Mr Paul Spencer of counsel instructed by DLA solicitors and the Respondent by Miss Susan Freeborn of counsel instructed by Borneo Linells.

Orders were made at the start of the proceedings under regulations 18 and 19 of the Care Standards Tribunal Regulations 2002. Also in this decision individuals other than OFSTED employees, will be referred to by their initials pursuant to Regulation 27(3). These decisions were taken so as to safeguard the welfare of any child who might otherwise be identified and to protect the private life of those persons concerned in this matter.

In reaching our decision we have (with the support of the parties) adopted the approach as to the standard of proof and the questions to be answered by the tribunal in AG v OFSTED [2003] 232. EYSUS at paragraphs 10-12.

Mrs AC has been a registered child minder since September 1999 and is entitled to mind up to four children. Before November 2003 there had only been one matter giving possible cause to question her suitability as a child minder. This was an incident which took place in March 2003 and was investigated by Hertfordshire Children, Schools and Families Department. There was no finding adverse to Mrs AC and in her very helpful closing submissions, counsel for OFSTED indicated that she did not rely upon it as a reason to continue the suspension.

One of the children minded by Mrs AC prior to suspension was C. On 24 November 2003 C's mother Mrs KM telephoned OFSTED and complained about the conduct of Mrs AC generally and in respect of two incidents in particular both relating to C which she said took place at Mrs AC's house. Mrs KM stated that on the first occasion she had witnessed Mrs AC become visibly very angry with C, she picked him up and pushed him onto some stairs so causing C to graze his arm. Mrs KM said she was also present when a second incident took place. C went to run upstairs, Mrs AC grabbed him by the ankle and pulled him downstairs so causing him to bang and graze his chin. The dates of these two incidents can be inferred from other evidence before us as 3 October and 7 November 2003. Mrs KM withdrew C from being minded by Mrs AC on 21 November.

OFSTED referred the matter to the appropriate local authority and a Child Protection Strategy meeting took place on 2 December. It was decided that the local authority would make enquiries pursuant to section 47 of the Children Act 1989 in respect of C and Mrs AC's son but there would be no police investigation.

On 3 December OFSTED held a case conference. It was decided to suspend Mrs AC's registration and the letter notifying her of the suspension was served the same day. The following day Mrs AC gave notice of appeal to the CST and applied to OFSTED for a review of the suspension decision. On 6 December she was notified that her application had been considered and refused by OFSTED. An appeal against that decision was made on 11 December.

Following the strategy meeting on 2 December the local authority took no action until 22 December when Mrs AC was interviewed by a social worker. We accept Mrs AC's evidence that this meeting only took place because of her requests for some action in respect of this matter. It appears that this inquiry is not regarded as a matter of high priority by the Local Authority.

The evidence adduced by the Respondent came from the OFSTED employees who were involved in the suspension process, particularly Mr Gould who took the decision to suspend Mrs AC. He helpfully explained to us the reasoning underlying his decisions to suspend and not to revoke that suspension. Mr Gould also told us of his telephone calls to the local authority concerning the lack of activity in relation to the section 47 enquiry.

We consider it unfortunate that we did not receive any evidence from Mrs KM either orally or by way of a statement particularly as we understand that she had been interviewed for the section 47 enquiry sometime before 22 December 2003. In consequence the only evidence before us to support the Respondent's case was a file note of a telephone call. As to this we can do no more than repeat what was said at paragraph 33 of AG v OFSTED,
"Compulsory Suspension is a serious step, and one would expect more in the way of evidence to be provided …..so that the Tribunal can satisfy itself that Compulsory Suspension was the appropriate and proportionate response".

We also heard and read evidence to the effect that there had been difficulties in the relationship between Mrs KM and Mrs AC concerning the care of C and their respective roles, responsibilities and attitudes. Mrs AC told us that she had raised the issue of her difficulties with Mrs KM with an OFSTED Inspector who had visited her on 21 November. The Inspector's report made no adverse comment at all of Mrs AC.

When Mrs AC was served with the Suspension Notice, she produced to Ms Kelly of OFSTED a number of documents evidencing disputes and latterly bad feeling as between herself and Mrs KM. In particular there was a note dated 24/11/03 recording a telephone call that day with Mrs KM relating to a dispute over money in which Mrs AC records Mrs KM as saying that if she did not get her deposit money back from Mrs AC then "I'll do whatever it takes to ruin your business". Following this incident Mrs AC made a number of telephone calls to OFSTED seeking advice and on 25 November she spoke to Mrs Smith of OFSTED who gave evidence before us.

We heard evidence from both Mrs AC and her husband, both of whom refuted the allegations set out in the note of the telephone call to OFSTED from Mrs KM. We also heard from Mrs JH, two of whose children have been cared for by Mrs AC since September 2002. She told us that in the light of her previous experience of carers, she had carried out unannounced visits at times when her children were being cared for by Mrs AC and had found no cause for complaint. In Mrs JH's experience, "Mrs AC takes her responsibilities professionally".

We considered all the evidence, both written and oral, put before us and addressed the question as to whether there is reasonable cause to believe that the continued provision of child minding by the appellant exposes or may expose one or more children to whom it is or may be provided to the risk of harm.

The only source of evidence relied upon by the Respondent in support of its case is the untested and unsupported assertions of Mrs KM made in the telephone call to OFSTED. There is no medical or other evidence confirming the existence of the injuries of which she complains. Nor do we have any explanation of why she made no complaint at the time the injuries were said to have been caused given that she was present on both occasions. Or why she allowed her son to continue being cared for by Mrs AC after both these alleged incidents had taken place.

There is evidence before us, apparently contemporaneous to the telephone call to OFSTED, calling into question Mrs KM's good faith (paragraph 13 above). We do not know what was said by Mrs KM when interviewed for the section 47 enquiry. Set against this evidence we have heard and read evidence to the effect that Mrs AC has an excellent record as a carer and that the matters alleged by Mrs KM are inconsistent with the experience of other parents and the situation disclosed on inspections.

In these circumstances and applying the standard of what at the date of the hearing a reasonable person assumed to know the law and possessed of the above evidence would believe, we are not satisfied that a child might be at risk if Mrs AC were to continue child minding while the section 47 and OFSTED enquiries are carried out

Accordingly, we allow these appeals.

Our decision is unanimous

APPEALS ALLOWED AGAINST THE DECISION DATED 3rd DECEMBER 2003 TO SUSPEND THE REGISTRATION OF AC AS A CHILDMINDER AND AGAINST THE DECISION DATED 6th DECEMBER 2003 TO REFUSE TO LIFT THE SUSPENSION OF AC AS A CHILDMINDER.

Mr Anthony Wadling
(Chairman)
Mrs Carol Caporn
Ms Janice Funnell

Signed by the chairman on this 10th day of January 2004