SA v HM Chief Inspector of Schools in England [2004] EWCST 0342(EYSUS) (02 August 2004)

DECISION

[2004] 0342.EY-SUS
SA v HM Chief Inspector of Schools in England

William Evans (chair)
David Cook
Sally Derrick

Hearing date 29 July 2004

Application

1.	The applicant appeals under regulation 8(1) of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 (the Suspension Regulations) against a decision of the respondent (the Chief Inspector) to suspend, under Part XA of the Children Act 1989, her registration for acting as a childminder. 

Preliminary

Representation

2. 	At the hearing the applicant appeared in person, and was assisted by her son JA. The respondent was represented by Ms Susan Freeborn of counsel, instructed by Bevan Ashford, Solicitors.

Relevant regulations

3.	Regulation 3 of the Suspension Regulations empowers the Chief Inspector to “suspend the registration of any person acting as a child minder or providing day care if he has reasonable cause to believe that the continued provision of childminding or day care by that person exposes or may expose one or more of the children to whom it is or may be provided to the risk of harm.” He may do so if “the purpose of the suspension is for one or both of” the following purposes: “(a) to allow time for the circumstances giving rise to the Chief Inspector’s belief to be investigated; (b) to allow time for steps to be taken to reduce or eliminate the risk of harm.”

4.	By regulation 4, the suspension lasts for 6 weeks. 

5.	By regulation 5, the Chief Inspector must give the registered person notice of the suspension. The notice must include the reasons for the decision, and give details of the registered person’s right of appeal.

6.	By regulation 8(1), the person whose registration has been suspended may appeal to this Tribunal against the Chief Inspector’s decision to suspend the registration. By regulation 8(2) the Tribunal may confirm the decision to suspend the registration, or direct that the suspension cease to have effect. If the Tribunal confirms the decision to suspend, it can nevertheless direct that the suspension shall cease to have effect if at the time the Tribunal makes its decision “it is satisfied that the conditions for suspension are no longer met.”

Procedure

7.	The President issued directions on 15 July 2004. Those directions did not include a restricted reporting order, or an order excluding press and public from the hearing. At the start of the hearing we invited representations from the parties on whether we should make such orders. 

8. 	Under regulation 19 we may exclude the press, the public or both from all or part of the hearing if we are satisfied that such a direction is “necessary in order to (a) safeguard the welfare of any child or vulnerable adult, (b) protect a person’s private life, or (c) avoid the risk of injustice in any legal proceedings.” The written evidence included references to (a) disputed allegations that children suffered abuse whilst in the applicant’s care, and (b) an allegation that a man the Chief Inspector has been told has been convicted of a sexual offence on a child has visited the applicant’s house. It seemed likely that both those matters would be the subject of oral evidence and argument at the hearing, which would lead to identification of both the children concerned and the man. We considered that the need to protect those children from publicity outweighed the public interest in being informed of the detail of the proceedings, so we made an order excluding the press and public from the hearing. In the event no members of the press or public attended any part of the hearing.

9.	Under regulation 18 of the 2002 Regulations we may make a restricted reporting order “if it appears appropriate to do so.”  For the same reasons as given in the paragraph above, we made an order under regulation 18(1) of the 2002 Regulations prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child referred to in the proceedings. The appeal is about suspension only, and is confined to the issues in regulation 3 of the Suspension Regulations. The purpose of suspension is to allow investigation of allegations which may or may not prove to be true. Publicity given to the allegations might adversely affect the applicant’s livelihood as a child minder. That would be unfair if the allegations turn out not to have been true. So we made a restricted reporting order to prohibit identification of the applicant as well. The order prohibiting identification of the children lasts indefinitely; that regarding the applicant lasts until the suspension of her registration ends, or her registration ceases if that is earlier. 

Evidence and burden of proof

10. 	The main issues we have to decide are whether the Chief Inspector had reasonable cause to believe that the conditions for suspension in regulation 3 of the Suspension Regulations existed, whether the purpose of the suspension was as stated in that regulation, and whether the conditions for suspension exist at the date of the hearing. As only the Chief Inspector can know the basis on which he made his decision, we think it would be unreasonable to expect the burden of proof to be on the applicant, so we regard the burden of proof as being on the respondent. The degree of proof required is a balance of probabilities.

Facts

11. 	The applicant is registered as a child minder. Her current registration certificate, dated 3 December 2003, includes conditions that (a) she “may care for no more than 4 children under 8 years; of these, not more than 2 may be under 5 years, and of these, not more than 1 may be under 1 year at any one time;” and (b) she “may provide overnight care for 1 child under 8 years.” We take that to mean that the applicant must not provide overnight care for more than 1 child under 8 years.

12. 	The applicant’s household includes her nephews I aged 12 and D aged 14. In this decision we refer to them together as the nephews. The applicant has looked after them for some 3 years following the deaths of their father (the applicant’s brother) and mother in Nigeria. Also in the household are the applicant’s partner (who supported the applicant at the hearing), and others whose identity is not relevant to this decision (though it may or may not be relevant to the applicant’s child minding).

13. 	On 11 June 2004 D told his counsellor at school that he and his brother had been abused over a period of time by the applicant and by their cousins, the applicant’s children. He said they were very unhappy at home and lived in fear of being physically abused.

14. 	The school told the local authority’s social services department, who started a child protection investigation as required by s.47 of the Children Act 1989. On 17 June 2004 a local authority social worker and a police officer visited the applicant’s house. The nephews were taken into police protection under s.46 of the Children Act, and were placed with foster parents. 

15. 	On 18 June 2004 a local authority social worker telephoned that information to OFSTED, the office of the Chief Inspector. She confirmed that telephone call by letter sent the same day. The letter also said that one of the nephews’ cousins, JA, aged 34, was “believed to be a Schedule One offender and frequently visits the home address. He was released from prison in January 2004. He is also alleged to have been one of the cousins who physically assaulted D recently.” 

16. 	In October 2003 the Probation Service at HM Prison Parkhurst had notified the local authority social services department that JA, who had been “convicted of an offence or offences against a child”, would be released from prison on 4 January 2004 and would reside at an address in south-east London (not the applicant’s address). The local authority social services department told OFSTED that it understood JA had been convicted of an indecent assault on a 9-year-old child.

17. 	The applicant had not told OFSTED that JA had visited or was likely to visit her house. He is one of the applicant’s sons.

18. 	On 21 June 2004 two OFSTED inspectors went to the applicant’s house. They told the applicant that OFSTED had received information of concern relating to her household, and asked her to consider ways of making sure that children using her minding service were safeguarded until the outcome of the local authority’s child protection enquiries was known. They asked the applicant to consider voluntarily suspending her child minding, and left with her a form of undertaking to that effect. Whilst they were there, one of the inspectors (who gave evidence at the hearing) noticed that there were present 2 minded children who appeared to be under the age of 5.

19. 	On 22 June the applicant told OFSTED by telephone that she would not voluntarily suspend child minding. She said her nephews were never assaulted but were “grounded” (which we take to mean confined to the house), and had their privileges withdrawn. 

20. 	On 22 June the local authority social worker told OFSTED’s investigator that D, the older of the nephews, had told his school counsellor that on 6 June he had been physically removed from his bed during the night; that he had been taken to the park and had been beaten by 3 of his cousins; and that the applicant had denied the allegations and had said there was no incident in the park. 

21. 	On 23 June OFSTED drew up a notice to the applicant of suspension of her registration for 6 weeks until 4 August 2004. It said the ground for suspension was that the Chief Inspector had reasonable cause to believe that the continued provision of child minding by the applicant exposed or might expose one or more of children to whom it was or might be provided to the risk of harm. The notice said that the purpose of the suspension was to allow time to allow for the circumstances giving rise to the Chief Inspector’s belief to be investigated. OFSTED’s area manager, who gave evidence at the hearing, made the decision to serve the notice. 

22. 	On 24 June an OFSTED team manager and a childcare inspector (who gave evidence at the hearing) served the applicant with the notice in person at her house. Whilst they were there, the inspector (a) saw 3 minded children under the age of 5, and a fourth child, whom the applicant at first refused to identify but later said was her niece, aged 3½; and (b) saw in the hall an entry on a calendar for Monday 14 June 2004 saying “Disciplined I and D by Jr and J.” The inspector noted other matters relevant to the quality of the applicant’s child minding, but not the subject of the suspension notice or this appeal. 

23. 	On 25 June the nephews were medically examined. D had a bump on his nose; he said that was from when one of his cousins punched him on the nose. I had scars and marks on his body, but said they were from falling over. 

24. 	On 30 June OFSTED was represented at a strategy meeting. The local authority social worker told the meeting that the nephews had said that JA did not live at the applicant’s house, but was a regular visitor to the house for parties and family gatherings; that if D had known that social services were going to be involved, he would not have disclosed the information to his school counsellor; that the boys had refused to give taped interviews; and that the police were withdrawing from the case. 

25. 	On 7 July 2004 the applicant appealed against the suspension, on the grounds that she is an excellent childminder; that the allegations of ill-treatment of the boys were not correct; and that she is supported by the parents whose children she minds. The applicant enclosed letters from 2 of the parents concerned. A neighbour, who is a graduate qualified teacher and chartered engineer and is a voluntary child protection representative in the local Roman Catholic diocese, is abroad until 24 August but wrote in support of the applicant’s character. In a letter dated 22 July to the Tribunal Secretary the applicant’s general medical practitioner expressed support for the applicant, and said the practice had no record of any physical abuse of the nephews. 

26. 	On 13 July there was a second strategy meeting. The local authority was to make further enquiries about how frequently JA visited the applicant’s house. The police had not yet completed checks on members of the household.

27. 	On 19 July an official of the Metropolitan Police’s local Public Protection Unit told OFSTED’s investigator that JA was not on licence and that there were no restrictions on his movements. On 22 July the Unit told OFSTED that JA was subject to police monitoring under the Sexual Offences Act 2003. He had been interviewed by the police the previous day, and had said the assault allegations (which we take to mean the allegations of assault on the nephews) were not true and had been made out of spite; and that although he may have visited the applicant’s house frequently in the past because of his own circumstances at that time, he was not a very regular visitor to the applicant’s house. 

28. 	On 26 July there was a third strategy meeting. OFSTED was told that the local authority’s investigation was continuing. 

29. 	On 26 July OFSTED officials made a further visit, unannounced, to the applicant’s house (a) to check that she was complying with the notice, and (b) to ask for details of the children who had been present on 24 June, but the applicant was not at home. 

30. 	On 27 July the local authority social worker visited. She told OFSTED that the applicant refused to give details of the children who had been present. The same day the applicant refused to meet OFSTED officials to discuss OFSTED’s concerns, whether before or after the hearing of her appeal. 

31. 	The local authority has called another strategy meeting for 11 August. It has told OFSTED that the nephews have now agreed to give taped interviews, which will probably take place the week after next. The local authority has not yet decided whether to start public law proceedings regarding the nephews. 

32. 	The local authority social worker has told OFSTED that she believes that JA visited the applicant’s house daily between about 3pm and 7pm during May 2004, but that since he has obtained work he has visited only once a week. Her sources for that are one of the nephews and a police officer in a Public Protection Unit.

Submissions

33.	The applicant contends that (a) the quality of her child minding is excellent; (b) the allegations of ill-treatment of her nephews are not true; (c) JA does not visit the house frequently, and when he does, there are no minded children present; (d) she has never minded children overnight; and (e) she is strongly supported by parents whose children she minds, by her neighbour, and by her local community. She says she was upset by OFSTED’s approaches and the allegations; in particular, by the unannounced visit, which she considers implied that she was being treated like a criminal. She says that whilst she refused to talk to OFSTED before the hearing, she never said she would not talk after it. She disputes several aspects of OFSTED’s accounts of events. Child minding is her livelihood, and she wishes to resume it. The applicant is supported by her partner, who is surprised by the allegations; says he has never seen the nephews abused; and asks us to take into account the applicant’s good intentions and the trouble she has taken to look after the nephews.

34. 	The Chief Inspector contends that (a) the allegations by the nephews are serious, are relevant to the care of children, and require investigation; (b) the nature and amount of visiting by JA require investigation, not least because of inconsistencies between what he says and what the applicant says, and until investigation is concluded the Chief Inspector cannot establish whether JA presents a risk to the welfare of children minded by the applicant; (c) further concerns have arisen since the service of the notice of suspension, such as over-minding; (d) the applicant’s refusal to discuss that with OFSTED or give information about the children minded means that those concerns remain; (e) whilst the letters in support of the applicant should be taken into account, allowance must be made for their authors not having the information that has been disclosed to OFSTED; and (f) suspension does not mean that the Chief Inspector accepts the allegations as true: the suspension is to allow investigation, which has not yet been completed.

Conclusions and reasoning

Whether the Chief Inspector had reasonable cause

35. 	On all the evidence, oral and written, including all the letters presented by the applicant, and taking into account the representations of the parties, we are satisfied that the Chief Inspector had reasonable cause to believe that the continued provision of childminding by the applicant had exposed and might expose one or more children minded by her to the risk of harm. He had before him cogent information from reliable professional sources (a) that the nephews had made allegations of ill-treatment which, if true, would imply that children minded by the applicant had been and might be at risk of physical or emotional harm or both; and (b) that a man convicted of an indecent assault on a child was living in the area and was an occasional visitor to the applicant’s house.

Whether the purpose of the suspension was to allow time for investigation

36.	Similarly, we are satisfied that the purpose of the suspension was to allow time for the investigation of the circumstances that had given rise to the Chief Inspector’s belief. Until the allegations had been evaluated, there might be a risk to children minded by the applicant. That evaluation would involve investigation, required by law, under current child protection procedures. Those investigations were still continuing and had not enabled those concerned to draw conclusions. Time for that to be done was required.  At the same time it was not clear what risk JA might present to children minded by the applicant. That called for enquiries, which were not complete, and time was required for that too.

Whether to confirm the Chief Inspector’s decision 

37. 	As we are satisfied that the Chief Inspector’s decision was lawful and proper, we will confirm the decision to suspend the applicant’s registration.

Whether the conditions for suspension are no longer met

38. 	Regulation 8(2) of the Suspension Regulations says that if we confirm the decision to suspend, we may nevertheless direct that the suspension shall cease to have effect if at the time of making our determination we are satisfied that the conditions for suspension are no longer met. On the evidence, particularly that given at the hearing, we are not satisfied that the conditions for suspension are no longer met. The local authority’s child protection investigation has not been concluded. There are inconsistencies between what OFSTED has been told about JA’s visiting, what the applicant says about it, and what he says about it. The Chief Inspector is not in a position to form a view on those issues, and OFSTED needs more time, partly for its own enquiries and partly because the local authority’s investigation is not completed. So long as the applicant refuses to discuss matters with OFSTED and resolves their concerns, those issues will still be outstanding. We conclude that the conditions for suspension are still met.

39.	Given that conclusion, we are not satisfied that the conditions for suspension are no longer met, so we will not direct that the suspension shall cease to have effect.

40.	Our decision is unanimous.

41. 	This decision is confined to the question whether the applicant’s registration should continue to be suspended pending further investigations. So nothing in this decision should be taken as deciding or implying anything else, such as whether the nephews’ allegations are accepted, or whether the applicant should continue to be registered; or if so, under what conditions.

Order

1. 	The decision to suspend the applicant’s registration is confirmed.

2.	We prohibit indefinitely the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify:
i.	any child at any time minded by the applicant;
ii.	any other child referred to in these proceedings.

3.	We prohibit the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the applicant, this prohibition to last so long as the applicant’s registration as a child minder is suspended, or until she ceases to be registered, if that is earlier.

Dated  2 August 2004

Signed

William Evans, Chair 
David Cook
Sally Derrick