SJ v OFSTED [2004] EWCST 0344(EY) (22 December 2004)

SJ
-v-
OFSTED

Before

His Honour Judge David Pearl
(President)
Mrs L Gladwin
Mr J Hutchinson

[2004] 0344.EY

Heard at the Care Standards Tribunal on 20th December 2004.

1.	This is an appeal under the Children Act 1989 s.79M against a Notice of Decision made by the Respondent refusing an application for registration as a childminder under Children Act 1989 s. 79L(5). 
2.	The Applicant submitted an application for registration as a childminder on 28th March 2003. The Respondent sent the Applicant a Notice of Intention to refuse registration on 14th November 2003. The reasons for refusal are stated, in the Response Form (B4), to be “based on a reliance upon the information received from Wokingham District Council, which indicated that the Applicant was unsuitable to care for children under the age of eight years old as well as the information which had been submitted by the Applicant herself.”
3.	The Applicant objected to this Notice of Intention and there was an Objection Panel Hearing on 21st June 2004 held under the provisions of the Children Act 1989 s 79L(4). The Panel rejected the objections made orally by the Applicant. She was advised of this decision by means of a letter dated 29th June 2004.
4.	On 12th July 2004, the Applicant appealed against the decision to refuse her registration as a childminder.
5.	There was a Directions Hearing on 23rd September 2004. The Applicant appeared in person, and the Respondent was represented by a Solicitor from Bevan Ashford (as it then was). A detailed timetable was agreed for the preparation of the case for the hearing, arranged for 20th and 21st December 2004 with a time estimate of two days. The Applicant was told at the preliminary Directions hearing of the possible availability of the Bar Pro-Bono Unit who may be able to help her, given the lack of public legal funding in this category of appeal.
6.	By letter dated 16th November 2004, Pye-Smiths, Solicitors, on behalf of the Applicant sought a “stay/adjournment” of the hearing. The Solicitors wrote “whilst it would be [the applicant’s] preference for the hearing for 20th December 2004 to remain, we would respectfully request that the same be adjourned generally.” The letter said that the reason for the application was linked to public funding.
7.	This application was refused on 17th November 2004. Adjournment applications are governed by Regulation 7(6) of the Tribunal Regulations which state that the President shall not adjourn the hearing unless satisfied that refusing the adjournment would prevent the just disposal of the case. 
8.	A further application by Pye-Smith was also refused. It is not necessary to set out the basis of the application, as the application for an adjournment was renewed at the hearing.
9.	At the hearing on the 20th December 2004, the Applicant appeared in person, although accompanied by a friend. She renewed her application for an adjournment. She said that the Bar Pro-Bono Unit had agreed to represent her, but that the Barrister who was to take on the case was not able to represent her on 20th December 2004 as he was engaged elsewhere and she had not had an opportunity to talk to him. She said that she was at a major disadvantage representing herself, and that she had been advised that an up to date medical report should be prepared for the purposes of the appeal. She said that she did not feel able to deal with the appeal herself as it involved complex family law matters.
10.	Miss Budden of Counsel, who appeared on behalf of the Respondent, opposed the application to adjourn. She said that the case was not in fact a complex case. It was submitted that the Applicant had received detailed advice from two firms of Solicitors during the course of her application and the subsequent appeal. Miss Budden said that the Tribunal was not being asked to make any finding on the Applicant’s mental state, and that the only issue that was being placed before the Tribunal was that she had, and she continues to have, a fixed belief that her daughter had been sexually abused by a former partner, her daughter’s father (Mr P). Miss Budden submitted that the Applicant maintained this belief notwithstanding the Court Judgments in Care Proceedings exculpating Mr P. 
11.	We gave very serious consideration to whether we should adjourn or proceed with the hearing. We decided first that we should not be helped by any further medical report. It was clear to us on the basis of the appeal papers that the Applicant continues to deny that there had been no sexual abuse. In her Witness Statement dated 27th November 2004 she states: “I continue to believe that my daughter was the victim of sexual abuse by her father and that my son was vulnerable to the same risks when visiting his sister during contact at the home of her father.” 
12.	His Honour Judge Kenney in July 1995 said: “I reach the conclusion…that there is no evidence that [Mr P] sexually abused [L]…. Indeed, having now considered all the evidence…I am satisfied to the extent of being sure that he never did sexually abuse [L] or mistreat her in any way.” Mr Justice Kirkwood on 27th October 2000 said: “This case has been going on for too long. It imposes considerable burdens on the father and his family, and perhaps on the mother…The mother says that she believed that over the years of this litigation (which goes back to 1990) she has suffered repeated injustice.” She still believes that she has suffered injustice. 
13.	New medical evidence would not be of any assistance to us, for we are not in a position to go behind the findings of His Honour Judge Kenney and Mr Justice Kirkwood. Miss Budden is correct in submitting that this fixed belief, a concern of all the psychiatrists who have seen her and reported on her, remains as a central theme, and that further medical evidence would not be relevant. 
14.	The Tribunal is used to hearing appeals where the applicant appears in person, possibly with the assistance of a friend who can provide general help and support. The Tribunal, in this situation, devotes considerable time to assisting an Applicant by asking detailed questions of the Respondent’s witnesses, in providing frequent breaks during the course of the day, and in adopting a less formal approach to the presentation of the evidence than would be appropriate when Counsel appeared on both sides. Public Funding is not available in this category of case, and one of the reasons may be that it has been felt by Government that a relatively informal Tribunal can deal speedily and fairly with such appeals. The Pro Bono Unit is able to help in some cases, and it was for this reason that the Applicant was informed of that particular possible source of help at the Directions Hearing in September 2004. 
15.	We formed the impression that the Applicant in this case was an articulate person, and she did of course have a friend present at the hearing to help her if need be. 
16.	The original application for registration goes back as far as 28th March 2003. A Notice of Intention was not served until November 2003, and the Objections Hearing was not initiated until June 2004. One of the points raised by the Applicant at the Objections Panel was why it had taken eight months to inform her that she would not be registered. It was another seven months until the Objections Hearing, and five months have of course passed in preparation for this appeal. Thus many months have gone by already. 
17.	We do not think that an adjournment would be in the interests of the Applicant in this case. We are not satisfied that refusing the adjournment would prevent the just disposal of the case. The Tribunal is of course aware of its responsibilities under the Human Rights Act 1998 and in particular to Article 6 of the European Convention on Human Rights. The Tribunal would ensure that the Applicant was in no way disadvantaged by the lack of legal representation, by adopting the safeguards as set out in the paragraph 14 above. 
18.	We therefore refused the application for an adjournment and informed the Applicant of this decision. The Applicant requested time to consider the matter, which we gave her. After some fifteen minutes, the hearing was resumed and the Applicant informed us that, although she did not wish to withdraw her appeal, she was unable to deal with the appeal herself. She raised the issue of a hearing defect. The Tribunal has a hearing loop available for use, but she said that the loop would not assist her. We informed her that the refusal of the adjournment request meant that the Tribunal would hear the case on the basis of the evidence presented by the Respondent, and the documentation that we had in the Hearing Bundle. The Applicant was aware of this fact, but nonetheless chose to leave the building.
19.	We heard the evidence of three witnesses; Ms Juliet Penley, Ms Sarah Gibbs, and Mrs Lena Mead. 
20.	Ms Penley is the Team Manager for the Family Support Team within the Social Services Department at Wokingham District Council. She has been a professionally qualified social worker since 1980 and has been responsible for SJ’s son from 1997 to 2003 and for her daughter since 2000, although as she is now approaching 18, the daughter has been transferred to  the “leaving care” team. In her witness statement, and confirmed in her evidence to us, Ms Penley stated that after the hearing in 1995, the Judge decided that Mr P had not sexually assaulted the daughter, and that in contrast “SJ was subjecting them to emotional abuse and adducing states of psychiatric anxiety in them.” Ms Penley informed us that in 1996, the children were made the subject of Care Orders as the Court found that they were at risk of significant harm from SJ. The subsequent proceedings are set out in her witness statement, culminating in the Order made by Mr Justice Kirkwood on 26th June 2003.  The Judge ordered that there be a residence order in connection with the son in favour of his father, and that the mother has direct supervised contact on two occasions a year. The daughter remains the subject of a care order, and she resides with her father. Ms Penley states in her statement that she believes, in the light of this history, that “she would have extremely serious concerns were SJ’s application to become a childminder granted.”
21.	In 2000, the Applicant attempted to go to the Press as she believed that she was the victim of an injustice. Mr Justice Kirkwood refused her application for leave to publicise matters arising from or relating to the litigation and specifically referred to this in his judgment at that time. Indeed, an injunction was granted in November 2000 preventing publication, and the Judge pointed to the fact that he felt that the Applicant was blind to the emotional effects such a publication would have had on her children.
22.	The second witness was Ms S Gibbs, who is currently employed as Projects Manager for Applications for the South East Region of OFSTED. She informed us that in the application form, the Applicant declared that she had an order made against her removing a child from her care, that she had a previous application for registration as a childminder refused, and that she had been referred to the Protection of Children Act List. She said that in April 2003, OFSTED received a letter from Wokingham Social Services confirming that the Applicant was known to Social Services and that the children had, for a time whilst still being in her care, been placed on the Child Protection Register. A further letter from Social Services said that “many psychiatrists had assessed SJ and advised the courts that she had a personality disorder consisting of fixed ideas which were not amenable to change or treatment.” 
23.	OFSTED received also a Doctor’s Health Check form from her General Practitioner. This stated that from SJ’s complicated history and her current unresolved emotional factors concerning the removal of her children, it was probably not appropriate for SJ to take on the role of a childminder. 
24.	The Tribunal asked Ms Gibbs why it had taken so long for the initial Notice of Intention to be made. She confirmed to us that the target that OFSTED has set itself for applications for registration is 70% in 12 weeks, and that they manage to make most decisions within the 12 week period. It would seem that in this case, following advice from the OFSTED medical team, SJ was advised to put the application on hold because she was at that time on anti-depressants although slowly coming off them. It is not clear from the documentation how long the application was placed on hold, but this was done, so it would seem, in order to enable SJ to come off anti-depressants. We are satisfied that the delay in this case did not prejudice the Applicant. 
25.	The third witness was Ms L Mead, the Area Manager for the North Area of the South East Region of OFSTED. She was present at the Panel Hearing, and she confirmed that she wrote to SJ to inform her that the panel had decided to uphold the Notice of Intention to refuse registration because the information provided by SJ had not disproved the opinions obtained by Social Services and that the panel felt that they had been asked to believe SJ over Social Services and the Courts.
26.	We have read the Applicant’s statement very carefully, and we have given due weight to everything that she says in this statement. She continues to believe that Mr P sexually abused her daughter, she has suffered a breakdown in December 2001 and shortly after this time began a course of anti-depressant treatment. She had to leave full-time employment at this time. She refers in her Statement to approaching her GP in April 2004 for a further opinion from her GP. She says that the GP told her “I possessed the required ability to perform the work involved in childminding.” There is no letter from the GP confirming this, and we are unable to attach any significance to this statement. She accepts a level of personal anxiety connected to her own physical health but strenuously asserts that this has no bearing on her suitability to care for children.
27.	The application is governed by the Children Act 1989 s 79B(3)(a). This states that a person is qualified for registration for childminding if she is “suitable to look after children under the age of eight.” 
28.	The burden of proof is on the Applicant in applications for Registration. (OFSTED v Spicer [2004 EWHC 440 (Admin)). 
29.	In Jones v CSCI  [2004] EWCA Civ 1713 (the analogous situation of an application for registration as a Manager of a Care Home), Brooke LJ said: “I have no hesitation in holding that an applicant must demonstrate to the Commission, and if there is an appeal, the Care Standards Tribunal, that he is a fit person before he can be qualified for registration…It would be absurd if the onus of proof were placed on the Commission to demonstrate unfitness before it could refuse registration.”  
30.	The point was made powerfully by Thomas LJ in the same case: “ A manager of a care home occupies an important position of trust and must…demonstrate that he is fit and proper to hold such a position; any doubts must be resolved against registration.” 
31.	We consider that the same public interest considerations apply to the equally important position of a childminder. Any doubts must be resolved against registration.
32.	However, in this case we have no doubts whatsoever. On the basis of the Applicant’s own witness statement we know that two of her children have been removed from her care, she continues to believe that Mr P sexually abused her daughter, the Judgments of the Court make clear that she was responsible for abusing emotionally her children, she has suffered a breakdown in her health as recently as 2001 and as a result had to leave work. We believe that all this information points in one direction only, namely her unsuitability to look after, as a registered childminder, children under the age of eight.  We dismiss the appeal.
33.	Our decision is unanimous.

APPEAL DISMISSED

His Honour Judge David Pearl
(President)
Mrs L Gladwin
Mr J Hutchinson

22nd December 2004.