Quigley (Kinderland Montessori Nursery School) v OFSTED [2004] EWCST 0285(EY) (28 January 2005)

DECISION							Case No: [2004] 0285.EY

Miss Elaine Quigley (Kinderland Montessori Nursery School) 	Applicant

v
OFSTED  									Respondent

- Before -

Ms Liz Goldthorpe (Chair)
Ms Linda Redford
Ms Sallie Prewett

Hearing at the Care Standards Tribunal
Pocock Street, London

On 20th and 21st July, 18th, 19th, 22nd, 23rd, 25th, 26th, 30th November and 1st and 2nd December  2004

Appeal

1.	The Applicant (Miss Quigley) appealed against the decision of Her Majesty’s Chief Inspector of Schools (OFSTED), pursuant to Section 79 (l) of Part XA of the Children Act 1989 ("the Act") and communicated by letter dated 11th February 2004,  that her registration as a provider of day care for children under eight in respect of Kinderland Montessori Nursery School ("the Nursery") at 47 Palace Court, Queensway, London W2 4LS be cancelled. 

Representation
2.	Ms Lisa Sinclair of Counsel, instructed by Davies and Partners, represented the Appellant and Miss Susan Freeborn of Counsel, instructed by Messrs Bevan Ashford, represented the Respondent.

The Law
3.	The decision of OFSTED was taken under s.79G(1) of the Children Act 1989 (hereafter ‘the Act’) that provides:  the registration authority may cancel the registration of any person if ‘(b) in the case of a person registered for providing day care on any premises, the authority is of the opinion that the person has ceased or will cease to be qualified for registration for providing day care on those premises…’

4.	An appeal lies to the Tribunal by virtue of s.79M(2) of the Act as amended by the Education Act 2002.  On appeal the tribunal must examine the evidence for cancellation afresh and may consider post-decision facts, and may:
‘(a)	confirm the taking of the step or the making of the order [or determination] or direct that it shall not have, or shall cease to have, effect; and (b) impose, vary or cancel any condition.’  

5.	Under s.79B(4) of the Act, a person is qualified for registration for providing day care on particular premises if every person looking after children on the premises is suitable to look after children under the age of eight; or if or living or working there, is suitable to be in regular contact with such children, the 
premises are suitable to be used for such children, having regard to their condition and the equipment there, and to any other factor connected with the situation, construction or size of the premises; and the person is complying with regulations under s.79C and with any conditions imposed by the registration authority.

6.	The Regulations made under s.79C relevant to this case are the Day Care and Child Minding (National Standards) (England) Regulations SI 2001/1828.   Regulation 3(1) states that in exercising his functions under Part XA of the Act the Chief Inspector shall have regard to the National Standards and supporting criteria.   By virtue of Regulation 3(2) a registered person must meet the criteria applicable to the child care category in which he falls.

7.	Up to September 2001 each separate local authority was responsible for regulating and inspecting the provision of day care in its area.   In this case the responsibility for Kinderland lay with Westminster City Council, which, by virtue of the Day Care and Child Minding (Functions of Local Authorities: Information, Advice and Training) (England) Regulations 2001, retained the function of advising day care providers of improvements in relation to day care provision and child minders when OFSTED took over the regulatory functions in September 2001.   When OFSTED assumed this responsibility by virtue of Part XA of the Act, as inserted by s.79 of the Care Standards Act 2000, it undertook ‘transitional’ inspections during the ensuing 6 months.

8.	The National Standards and accompanying guidance were published in 2001 by the Department of Education and Skills in two documents entitled, respectively, ‘National Standards for Under Eights Day Care and Childminding:  Full Day Care’ and ‘Full Day Care:  Guidance to the National Standards.’   The Standards applied to existing providers with effect from 1st September 2001 and the introduction to these states ‘good quality care and education in the early years raise educational standards and opportunities, and enhance children’s social development’ and that the Standards ‘represent a baseline of quality below which no provider may fall’ and, as is made clear:
•	Providers are expected to demonstrate how they aim to achieve these requirements against which they are registered and inspected.
•	The purpose of the Guidance is to help providers meet the standards and explain how OFSTED inspectors will register and inspect against the Standards. 
The role of OFSTED therefore is to regulate day care providers and to ensure compliance with the Act, the Regulations and the National Standards. It is the responsibility of the registered provider to demonstrate compliance to OFSTED. 

9.	The Day Care and Child Minding (National Standards) (England) Regulations 2001 and the subsequent 2003 Regulations (making similar provisions) place an obligation on a registered provider to 
•	meet the requirements of the National Standards and to have regard to the specified supporting criteria
•	to notify the Chief Inspector of the occurrence of specified events, such as changes in those looking after children on the premises and any accident to a child.   
•	to keep specified records

10.	These Regulations also provide that, in the exercise of his functions under Part XA of the Act, the Chief Inspector must have regard to the National Standards and supporting criteria.   They also authorise him, if he considers that a registered person has failed, or is failing, to comply with the requirements of Regulation 4(2) or 7, to give notice to her specifying her failure, the action she should take to comply, and the period during which she should take that action.   The registered person is required to comply with the terms of that notice within the specified period.   Furthermore, any allegation that a registered provider has failed to comply with the requirements of the Regulations, or those of the National Standards, or to have regard to the criteria, may be taken into account in any proceedings under Part XA of the Act.   

11.	The main National Standards relevant to this case, with the supporting criteria are as follows:
(1) ‘Suitable Person’
Adults providing day care, looking after children or having supervised access to them are suitable to do.   The criteria include the registered person (RP) complying with all conditions of registration, ensuring that any person who has not been vetted is never left alone with children, and that all managers, staff and volunteers have the appropriate experience, skills and ability to do their jobs.
(2) Organisation
The RP meets required adult:child ratios, ensures that training and qualifications requirements are met and organises space and resources to meet the children’s needs effectively.   This will include demonstrating staff have induction training, are deployed effectively within the premises to ensure children’s safety, welfare and development, a keyworker system and a named deputy able to take charge in the manager’s absence.  The criteria also identify:
•	a maximum of 26 children in a group and minimum staffing ratios of 1:3 for children under 2 years, 1:4 for children aged 2 years, and 1:8 for children aged 3-7 years, with a minimum of two adults on duty, and a system for registering children and staff attendance on a daily basis.
•	an Operational Plan available to parents detailing staff deployment, activities, and how continuing training needs of staff will be met, 
•	suitable contingency arrangements to cover emergencies and unexpected staff absences, and sufficient staff and volunteers to cover staff breaks, holidays, sickness and time spent with parents, 
•	accessible individual records with staff and volunteer names and addresses.
(3) Care, Learning and Play
The RP meets children’s individual needs and promotes welfare, plans and provide activities and play opportunities to develop children’s emotional, physical, social and intellectual capabilities.   The manager should demonstrate that she and her staff encourage children to be confident, independent and develop their self-esteem, observe and record what children do and use this to plan the next steps for the children’s play, learning and development, and that the RP gives children opportunities to be active, indoors and out.
(4) Physical Environment
The premises are safe, secure and suitable for their purpose with adequate space in an appropriate location, are welcoming to children and offer access to the necessary facilities for a range of activities which promote their development.   Supporting criteria include clean premises maintained at an adequate temperature, with adjoining outdoor play space and if, exceptionally, this cannot be provided, children are safely escorted to local parks, playgrounds or the equivalent on a regular basis.
(8) Food and Drink
Children are provided with regular drinks and food in adequate quantities for their needs.   Food and drink is properly prepared, nutritious and complies with dietary and religious requirements.   The criteria include making fresh drinking water available to children at all times, and offering snacks and drinks routinely to children who stay for the whole day. 
(11) Behaviour
Adults caring for children in the provision are able to manage a wide range of children’s behaviour in a way which promotes their welfare and development.   Criteria include a written statement on behaviour management by the RP, stating the methods used to manage children’s behaviour, which “is fully understood and followed by all staff and discussed with parents.”   “Adult handling of behaviour should be consistent and developmentally appropriate, respecting individual children’s level of understanding and maturity, and physical punishments, or the threat of them, are not used, nor any form of physical intervention, e.g. holding, unless it is necessary to prevent personal injury to the child, other children, an adult or serious damage to property.  Any incident is recorded and the parent informed of the incident on the day.”
(12) Working in Partnership with Parents
The RP and staff work in partnership with parents to meet the need of the children, both individually and as a group.   Information is shared.   This includes giving parents details of policies and procedures, a system for regular exchange of information between parents and staff, parental access to all written records about their children, regular information about activities and ensuring children are only handed over to individuals named by the parent.
(13) Child Protection
The RP complies with local child protection procedures approved by the Area Child Protection Committee (ACPC) and ensures that all adults working and looking after children are able to put the procedures into practice.  The criteria state “the protection of the child is the registered person’s first priority”, and include a written statement by the RP, based on ACPC procedures, setting out staff responsibilities for reporting suspected child abuse or neglect with contact names and telephone numbers, and procedures for allegations against staff or volunteers.   The RP should ensure a designated member has attended a child protection training course, all staff are aware of child protection issues, possible symptoms or children at risk, are able to implement policies and procedures and their responsibility to report concerns.
(14) Documentation
Records, policies and procedures which are required for the efficient and safe management of the provision, and to promote the welfare, care and learning of children are maintained.  Records about individual children are shared with the child’s parent.   Retention of these “retained for a reasonable period of time” after children have left is a mandatory requirement under the Regulations and records should “always” be available for inspection by the inspector, who should also notified of (at the earliest opportunity):
-	any changes in members of staff and people living on the premises;
-	any significant changes to the operational plan;
-	any other significant events. 

An Annex to the Standards deals separately with the needs of children under 2 years, including criteria ensuring they are cared for in groups of no more than 12 in a separate base room.

12.	‘Suitability’ is not defined in the Act or The Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.  Under the previous legislation, consideration was given to the concept of “fit person” as defined under Schedule 5 to the Care Standards Act 2000 in TI v CSCI [2003] 0223.EA.   This case, which concerned the issue of registration of independent fostering agencies noted at paragraph 16 that “it is probably much easier to recognise the quality of fitness than to attempt to define it.”   This echoed the Tribunal in the earlier Decision No. 76 (Azzorpardi v London Borough of Havering) (1988), in which it was also said: "There is no statutory definition of a "fit" or "unfit" person… [h]owever, the word "trust", "integrity", "uprightness", "honourable", and "truthful" spring to mind. A fit person is one who can be trusted, in whom one has confidence, who acts according to high principles. It follows that a person will be unfit if he or she is untrustworthy or dishonest.’   

13.	Miss Freeborn submitted that fitness must include an ability and willingness to co-operate with the regulatory authority.  Where regulation of a registered provider (as in the case of child minders and day care providers) is not policed in the sense of frequently checked without prior warning to the provider, the system depends on the regulator being able to trust the registered provider to 
(i)	comply with the National Standards;
(ii)	comply with all relevant regulations;
(iii)	provide evidence that they have been so compliant when inspections take place; and 
(iv)	to notify the regulator of changes in the provision, such as when staff join between inspections.

14.	Miss Freeborn submitted that the same principles applied to the concept of suitability and advanced two broad propositions that where a provider:
a)	has failed to comply with several of the National Standards over a period and is unable to provide any satisfactory explanation for the non-compliance, and/or
b)	has deliberately and repeatedly misled the regulator about matters arising in the course of a child protection investigation, and no satisfactory explanation is provided for that deception, 
she is unlikely to be a ‘suitable’ person to be registered as a child minder/day care provider.   In C v OFSTED [2002] 0087EY the President observed that a failure to comply with the National Standards may make a registered provider unsuitable and in many cases will do so.   

15.	In this jurisdiction the civil standard of proof applies, requiring us to consider the i.e. a balance of probabilities, acknowledging that the more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged, Re H and R (Sexual Abuse: Standard of Proof)  [1996] 1FLR 80 reaffirmed by the Court of Appeal in the recent cases of Re LLU and Re LB [ref].   Lord Nicholls said in that case at page 586 et seq. [shorten]
"Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle…The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury…Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established, [as set out in] In re Dellow's Will Trusts (1964) 1 W.L.R. 451, 455: "The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it."  
This substantially accords with the approach adopted in authorities such as…Hornal v. Neuberger Products Ltd. (1957) 1 Q.B. 247, 266: This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters."

16.	In this jurisdiction, the issue of the burden of proof was considered in paragraph 15 of the decision in TI v CSCI and again in Spicer v Ofsted [2004] EWHC 440 (Admin) in which Burnton J suggested that, particularly where serious failures had been identified, caution should be exercised before accepting assurances that the regulatory authority had no opportunity to monitor.  It was up to the provider who has had her registration cancelled to demonstrate to the regulatory authority that she has undertaken the necessary training.  

17.	On behalf of Ofsted, Miss Freeborn accepted that, where a specific allegation is made by the Respondent of wrong doing by the Applicant, such as the rough physical handling of a child, the principle must be that ‘he who asserts must prove’.  Furthermore, where it is said that the standards relating to organisation and documentation have not been complied with, it was said that all the Respondent can do is adduce evidence that the Applicant failed to demonstrate that there had been compliance with these standards when asked to do so.   However, the burden is on the Applicant at a hearing, to prove, for example, that the relevant records had been kept.   She submitted that the evidential burden would clearly fall on one side of the line or the other and it will then be a matter for the Tribunal to determine whether such evidence of breaches or non compliance in respect of the National Standards lead to an adverse conclusion on the Applicant’s suitability.   Thus, if we were persuaded by clear and cogent evidence, we would be entitled to reach an adverse conclusion as to the Applicant’s suitability.

18.	Since this appeal was heard we have had the benefit of the Court of Appeal judgment in Jones v NCSC [2004] EWCA Civ 1713, issued on 16th December.   This considered the question of fitness in relation to the managers of care homes under the Care Standards Act 2000, and the related Regulations that sets out the conditions which an applicant must satisfy before he may be registered, referring specifically to the necessity to be a person of integrity and good character, with the requisite qualifications, skills and experience necessary, as well as physical and mental fitness.  The court held that ‘an applicant must demonstrate to the [regulatory body] and, if there is an appeal, to the Care Standards Tribunal that he is a fit person before he can be qualified for registration… They are stringent requirements…and it would be absurd if the onus of proof were placed on the Commission to demonstrate unfitness before it could refuse registration.’

19.	The Court of Appeal found that the Tribunal was wrong when it decided Mr. Jones’ appeal in his favour by saying:  “the burden is on the respondent to prove the appellant’s unfitness on the balance of probabilities (the civil standard), [and] the balance favours the appellant.”   This, the court said, ‘placed the burden of proof upside down.’   Lord Justice Thomas said:  ‘Bodies charged with regulation are frequently entrusted with the task of determining whether a person who seeks to hold a position of trust is a fit and proper person…because the provisions of some regulatory systems have been interpreted as placing the burden of proof on the regulator, the regulatory body has felt constrained to allow a person to occupy such a position of trust, despite its doubts…that outcome demonstrates the fact that in such a case there may have been a failure of the legislative scheme in seeing that, in the public interest, positions of trust are occupied by persons who are demonstrably fit and proper…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.’

20.	We regard this case as directly relevant to this appeal by analogy, supported by the conclusion of the Tribunal, chaired by the President, in the case of SJ -v- OFSTED [2004] 0344.EY on 22nd December 2004 that it considered “the same public interest considerations apply to the equally important position of a childminder.”   The requirements as to the fitness and suitability of a registered provider of day care are contained in the National Standards, demonstrable compliance with which is required by the Regulations.  There can be no different burden of proof as to fitness and suitability applicable to Miss Quigley as the manager of a nursery with young children than that applicable to the manager of a care home, whether it is a matter of demonstrating this before registration or during the life of a registration certificate. 

Preliminary Matters

21.	Adjournment
21.1	On 13th May 2004, His Honour Judge David Swift, the Acting President, set this matter down for hearing with a time estimate of 3 days and gave the usual directions for filing of witness statements by each party, disclosure of any documents either considered would assist the Tribunal in determining the case, and any supplementary material on which a party intended to rely.   The last date for the filing of evidence was 25th June 2004.   We understand that HHJ Swift was keen to limit the documentation disclosed to that which went to the core issues in the case and to avoid provision of additional, superfluous documentation.  It was that approach which led him to allow only 3 days when the matter was originally listed for hearing in July 2004, despite the representations made on behalf of the Respondent.

21.2	When the hearing started in July it rapidly became clear that this would be insufficient time.   In the course of hearing evidence from the Respondent’s first witness, DC Greenwood, a police officer, it emerged that several documents in police possession, including contemporaneous witness statements, had not been disclosed, necessitating a short adjournment to deal with this matter.   The Applicant had also made reference to further undisclosed material namely photographs of the Nursery.   We offered 3 further hearing days in August, but subsequently, difficulties with availability of witnesses due to illness led to a formal application by the Respondent for an adjournment, supported by the Applicant.  

21.3	Having carefully considered Regulation 7(6) and (7) we concluded that in all the circumstances of the case the time estimate needed to be revised to 9-10 days and that it would not be possible to achieve a just disposal if the hearing was spilt into 3 tranches spread over 4 months. As the Nursery remained closed, there was no potential prejudice to any of the children involved.   We therefore decided that the balance of justice dictated we should adjourn in accordance with Regulation 7(6).   We further considered that Directions for the production of evidence relating to the layout, organisation and staffing of the Nursery together with written records would assist the proper consideration of the case.  The adjournment was granted on the clear understanding that the parties would be at liberty to apply to the President for further Directions in the event of any other difficulties.

21.4	We continued the Restricted Reporting Order made by His Honour Judge Swift on 13th May 2004 and made the following Directions:
1)	The Appellant, and in default the Respondent where it is possible to do so, to file and serve on the Tribunal Secretariat and the other Party the following documents by no later than 4:00 pm on Monday 4th October 2004:
(i)	Photographs and a plan of the layout of the Kinderland Nursery
(ii)	Dated Nursery records relating to the staff and children attending in all the relevant periods to include:
-	registration and attendance records, to include dates of birth
-	a list of all staff employed with dates of employment  and relevant qualifications
-	staff rotas
-	the Appellant’s qualifications 
-	records relating to staff training and induction
(iii)	All Criminal Records Bureau and/or Police Checks for all staff including the Appellant
(iv)	The Nursery incident/accident book
2)	Any supplementary or additional document or other material upon which a party intends to rely to be filed and served no later than 4 pm on Monday 1st November 2004.
3)	Counsel for either Party wishing to raise and/or rely on human rights points must file with the Tribunal Secretariat details of these submissions together with full case citations in support no later than 2 days before the resumed hearing.

22.	Disclosure of evidence 
22.1	Provisions giving us power to control the submission of evidence are contained in Regulation 14 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, as amended, (‘the 2002 Regulations’).   These state that: 
“(3) the President or the nominated chairman (before the hearing or, if the case is to be determined without an oral hearing, before the case is determined) or the Tribunal may direct that a document or the evidence of any witness other than the applicant shall be excluded from consideration because - 
(a)	it would be unfair in all the circumstances to consider it;
(b)	the party wishing to rely on the document or evidence has failed to submit the document, or witness statement containing it, in compliance with any direction; or
(c)	it would not assist the Tribunal in determining the case
(4)	Instead of excluding evidence under this regulation the President or the nominated chairman or the Tribunal may permit it to be considered on such terms as he or it thinks fit, including, subject to regulation 24, the making of a costs order.’
(5) 	The President or the nominated chairman may direct that a witness (other than the applicant) shall not give oral evidence.’
22.2	The Applicant produced a large quantity of further documentation in purported compliance with the Directions given in July.   These included photographs and a layout of the Nursery, as well as some children’s record cards and registration forms, and blank undated sample children’s worksheets.   Some nursery registers were also provided, including records for the summer school each July, but registers for September 1997 to July 1999 and September 2002 to July 2003 were not made available and were said to be either lost or destroyed.

22.3	Data on children and staff went to the heart of the issues about records and ratios, and, from the outset of the resumed hearing, we made a number of further attempts to obtain clearer and more complete records from the Applicant, including a register of the children in attendance, full details of the staff and their hours of work and a staff rota.   By day 5, we were told the Applicant was ‘too depressed’ to tackle the task fully and had not attempted to identify staff working at the nursery in 1990 and 2001:  Ms Sinclair expressed ‘very strong doubts’ that anything constructive would emerge in relation to the registers of children.   None of the relevant documentation provided was complete, none of the information was cross-referenced, and the Applicant claimed she had not remembered being asked to provide an attendance register.   

22.4	It became clear to us that the Applicant simply did not have the necessary data from which to produce the full lists of children with their dates of birth and of staff.   The Applicant, through her Counsel, conceded by the end of day 5 that she had no more information other than that already supplied to us, particularly with regard to the children’s dates of birth, and was not prepared to carry out the task of producing the further material as it was ‘too onerous.’   On day 7 Miss Sinclair confirmed that the Applicant stood by the registers she had provided and their contents.

22.5	On the 8th day of the hearing, in the course of giving evidence, the Applicant also made reference to entries in her diary, which had not hitherto been disclosed, claiming these contradicted the evidence given by Ms Tyler.  She also claimed she had entered details of staff absences and payments in her diaries.   We refused to allow submission of any of these diaries on the basis that:
•	the purpose of the Tribunal’s case management process and the directions given at the outset is to achieve full disclosure of all relevant evidence
•	the Applicant had been given ample opportunity throughout the process and the hearing to produce relevant records, including the period following the July adjournment and directions, which had actively encouraged the disclosure of whatever material upon which she wished to rely
•	the first time a diary had been mentioned was after the Respondent had closed its case and disclosure would potentially represent a disproportionate disruption and further delay to the hearing in producing and analysing a quantity of material
•	the Applicant was relying specifically on a diary entry relating to one day and one witness, which we had no reason to believe was likely to greatly assist us, and disclosure of which would necessitate looking at other entries and other diaries.

22.6	The Respondent filed further evidence in response to the directions in July and maintained that it had disclosed all relevant appropriate material, but the Applicant complained at various stages of the hearing about the range of these documents.   In particular, in the course of the Respondent’s evidence, reference was made to a contemporaneous record of the initial telephone contact between Westminster Social Services department and Ms Malek-Huff regarding her allegations in July 2003.  Once this document was provided, which also included details of interaction between the department, the police and Ofsted during the period 2nd to 18th July 2003, Ms Sinclair alleged it showed omissions and discrepancies between the oral evidence of both Ms Malek-Huff and DC Greenwood.   Ms Sinclair made written submissions that, despite having already been released, both these witnesses should be recalled, in order to afford Miss Quigley a fair and unprejudiced hearing.  She asked that, in the alternative, the Respondent be required to confirm, “that only a speculation that favoured the Applicant was to be placed on the omissions.”   

22.7	We refused to allow these witnesses to be recalled:  we found there were no exceptional circumstances to justify such an unusual step, and concluded it was sufficient for us to reach a judgment as to what extent this evidence impacted upon that of Ms Malek-Huff and DC Greenwood.

22.8	Miss Freeborn also invited us to give general guidance on disclosure for future cases, a matter dealt with below.  

23.	Ofsted’s decision-making process
23.1	An Objection Panel, comprising Ms Dugdale, the area manager, Mr Georgiou, the CIE manager for the London region, and Ms Knight the Child Protection Liaison Officer who had had oversight of the investigation into the allegations was convened on 4 February 2004. The Applicant alleged this Panel was unfair and had breached her rights under Article 6 of the European Convention on Human Rights, since it was made up of a number of people who had been involved in the investigation and de-registration process.   

23.2	Section 79L of the Act requires a notice of ‘intention to take steps’ to be sent to the registered provider, which, in this instance, was dated 3rd December 2003.   The provider then has an opportunity by virtue of s.79L(3) to state her objection to the step being taken.  Under s.79L(4), the authority must give her an opportunity to do so either orally or in writing, by herself or through a representative.   

23.3	Mr Georgiou explained in his oral evidence that the purpose of the Objection Panel is to ensure compliance with ss. 79L (3) and (4) of the Act.   This is not an appeal panel and whilst an intention to take the decision to cancel Miss Quigley’s registration had been formed at the stage at which the meeting took place, no final decision had been taken.   As he testified, there are circumstances where, if the provider brings information to the panel that undermines the basis of the intention to take the step, then a decision is taken not to proceed with the step contemplated.  

23.4	We can see no real foundation for Ms Sinclair’s contention that the constitution of the Panel in this case breached Miss Quigley’s human rights and specifically her rights under Article 6.   As the President concluded in relation to a similar point in C v Ofsted [2002] 0087.EY at paragraph 21, in that case there was no such breach “because [of] the right of a full merits appeal to an independent Tribunal…” an analysis that clearly follows the line of cases decided by the European Court of Human Rights.  Oakes v Ofsted [2003] 0226.EY can be distinguished as this case was apparently decided without the benefit of C v Ofsted and in circumstances where a member of the panel was missing at the beginning of the meeting.    

24.	Evidence:  Witnesses
24.1	We were supplied with a total of nine bundles of written evidence that included 39 witness statements, with 19 potential witnesses for the Applicant and 17 for the Respondent.   One of the Respondent’s witnesses, Ms Swan, was still suffering from ill health preventing her attendance at the resumed hearing and, having had the particular personal circumstances explained to us, we accepted the position, supported by the agreement of the Applicant, without the necessity for a medical certificate. 

24.2	On day 5, following our request to be given full details, the Applicant finally provided a list of the witnesses that were available and she wished to call.   Most of these were parents of children that had attended the nursery, many of whom had filed short general statements in support of Miss Quigley.   Miss Freeborn indicated she had no wish to cross-examine the vast majority of these witnesses.   We made it clear that the witnesses should be confined to those who could contribute to the material issues in the appeal, and four witnesses were called for the Applicant.  

25.	Withdrawal of the Appeal
25.1	At the end of the resumed hearing, the Applicant stated she wished to withdraw her appeal.   This intention was expressed orally at the end of day nine when the evidence of both parties had been concluded, but before final submissions.   Ms Sinclair stated this decision had been arrived at because the Applicant had only been able truly to appreciate her position at the conclusion of her own case and had become aware, especially in the light of the concessions she had made on the last day of evidence, that it would not be appropriate to continue the appeal.   

25.2	Regulation 33 of the 2002 Regulations, as amended, states as follows:
(1) If the applicant at any time notifies the Secretary in writing, or states at a hearing, that he no longer wishes to pursue the proceedings, the President or the nominated chairman (or at the hearing, the Tribunal) must dismiss the proceedings, and may, subject to regulation 24(2) and (3) make a costs order.
(2) If the respondent notifies the Secretary in writing, or states at a hearing, that he does not oppose or no longer opposes the proceedings, the President (or at the hearing, the Tribunal) - 
(a) must without delay determine the case or, as the case may be, the application for leave in the applicant's favour;
(b) subject to regulation 24(2) and (3) may make a costs order; and
(c) must consider making one.

25.3	s.79M sets out our powers to determine appeals that proceed to a concluded hearing.   Having heard preliminary oral submissions from both Counsel, we indicated we were extremely concerned about the unusual circumstances and timing of the withdrawal and its potential consequences.   By this final stage of the proceedings the Applicant had made a total of 19 formally recorded concessions in examination in chief and cross-examination that were serious in nature and focused on the key issues in the case, (save for the allegations in relation to rough handling of children).   Whilst in principle we accepted that dismissal of the appeal under Regulation 33(1) appeared to be an inevitable consequence of withdrawal, we took the view that we should invite further submissions.

25.4	Ms Sinclair argued that there was no statutory or common-law authority for the proposition that we had power to do anything other than to dismiss the appeal.   She submitted that we had no jurisdiction to do other than as expressly and unambiguously prescribed, since neither the Regulations in general, nor specifically Regulation 20, which gives us power to regulate our own procedure, purport to give the Tribunal power to describe its own jurisdiction.   Furthermore, the Respondent’s arguments about the overriding necessity for findings and the expenditure it had incurred in the investigation and appeal could not generally constitute a basis for the Tribunal re-defining the scope of its jurisdiction.   She contended that findings of fact were merely an historical record and could not be used to influence any future application by Miss Quigley, since to do so would be entirely prejudicial and unsupported by statutory guidance.

25.5	Miss Freeborn invited us to address what she described as a wide and troubling range of issues raised in the case in a fully reasoned judgment, despite the apparently unequivocal terms of the Regulation.  She urged us to set the issue of dismissal against the matters that had come before us in the 9 days of oral evidence, and the vast quantity of written evidence.   She emphasised that, in the absence of such a judgment, by her withdrawal the Applicant would manage to avoid any findings of fact being made.    She also stated that the Respondent regarded the issue of findings as of crucial importance since:   
•	they would assist Ofsted should the Applicant make a further application to be registered as a child minder or day care provider, as she would be entitled to do on any terms, 
•	without findings, and consideration of such an application would necessitate going through all the available material if Ofsted wished to resist that application
•	significant financial resources had been expended by Ofsted in investigating the case and responding to the appeal which would otherwise be wasted.   

25.6	She went on to contend however, that in contemplating the particular circumstances of this case, section 79E of the Act provided a relevant consideration.   This states that: 	
‘(2) An application for registration shall 
(a)	give prescribed information about prescribed matters;
(b)	give any other information which the registration authority reasonably requires the applicant to give.’
…
(4) Where the registration authority has sent the applicant notice under section 79L(1) of its intention to refuse an application under this section, the application may not be withdrawn without the consent of the authority.’

Miss Freeborn argued that this showed statutory authority for the proposition that there must come a time when some adjudication must be made on the matters to be taken into account about registration.  If the Applicant re-applied and the Respondent sought to rely on the full material and not a judgment in issuing a notice under s.79L, and the Applicant appealed that decision, her application could not be withdrawn without Ofsted’s consent. In the range and number of issues conceded in this case, Miss Freeborn submitted, adjudication was therefore statutorily required.   Miss Sinclair entirely disputed this point, but conceded that if adjudication was required in the overriding interests of the legislation, namely to protect children, that issue might have some force.

25.7	We have very carefully considered this difficult, and as yet untested, area of the Regulations.   Regulation 33 requires a determination of the case “without delay” in the event of a withdrawal, seemingly at whatever stage that occurs during the proceedings.  However, to instigate a withdrawal when all the evidence has been heard and, moreover, a number of crucial concessions have been made, seems to us to be wholly unacceptable and in breach of the spirit of the legislation.   Effectively, a dismissal without more would negate the effect of the Applicant’s concessions by removing any power to adjudicate upon them and the conclusions to be drawn from them, regardless of any other findings we might be minded to make.   Additionally, it would prevent any findings with regard to the matters on which the Applicant made no concessions, namely the child protection issues.   This we regard as a particularly serious consequence and one that would not be properly rectified by leaving the Respondent to rely on the evidence to date.   We are charged by the legislation to look at matters afresh, and to judge the reliability or otherwise of the witnesses making what amount to very serious allegations about the treatment of young children, and to accept that we are effectively disenfranchised from making findings about child protection issues seems to us to be a step too far.   

25.8	We do not believe that is what was intended by the legislation, nor can it be right that the Applicant can successfully seek to avoid the consequences of her own admissions.   We understand that it might well be right in many circumstances for an Applicant to exercise their right to withdraw their appeal, having, for example, given proper consideration to their chances of success, or their own contribution to bringing about the de-registration.   But we are not persuaded that that is the case here:  indeed, we are of the view that this Applicant is merely seeking, very belatedly, to avoid the inevitable.   In practical terms and with reference to what might constitute ‘delay’ in such circumstances, any difference in the determination of a case where the proceedings are effectively at an end and one where a determination is made in the form of a judgment after closing submissions, must be almost non-existent, and, in this case, is a distinction without a difference.   Indeed, in WH v NCSC [2003] 176.NC where the appeal was withdrawn at the outset of proceedings due to an agreement between the parties, the Tribunal delayed accepting the position until satisfied about the welfare of two of the children concerned:  only on receipt of faxed assurances that the two residents would be moved from the unregistered home, did the Tribunal approve the withdrawal of the appeal and dismiss the proceedings.

25.9	Full adjudication on the issues in a case is undertaken at the end of a hearing, which is the point we had reached, subject only to final submissions, when the Applicant sought to withdraw her appeal.   We considered merely giving a judgment based on the concessions made by the Applicant, but have concluded that we should deal in a full judgment with all the material issues in the case and make findings as appropriate.   In the particular circumstances of this case where all the relevant evidence had been fully aired, the hearing properly concluded and the proceedings had elicited a wide range of concessions by the Applicant that centred on the material issues, and with regard to the overriding purpose of the legislation and in the overwhelming interests of the children for whom it was designed to protect, we believe it is not only right, but in the public interest, to give a full public decision with reasons.   We are also mindful of the observations of the court in Jones v NCSC [2004] EWCA Civ 1713 about the overriding public interest in safeguarding children.

25.10	Miss Freeborn said the Respondent did not seek to make an application for costs and we would have been unlikely, in the final analysis, to have made one.   Whilst a great deal of public expense has been incurred in the investigation, the fact remains that the nursery stayed open for a period of 13 years despite an increasing amount of information about the way in which it was being run.  We believe that this may have led the Applicant to make assumptions about how seriously her conduct was being treated and therefore how the Tribunal might also perceive it.

Facts

26.	Throughout the course of the appeal Miss Quigley disputed much of the evidence in relation to both registration and inspection matters and the allegations made against her by staff and parents, either giving alternative explanations or simply denying that the events had taken place as described or that she had been at fault.   However, in the course of the hearing she made various concessions through counsel and in oral evidence, both in examination in chief and cross-examination.   We have set out the history at some length, insofar as it is possible to establish it from a combination of contemporaneous records, the unchallenged evidence and in the context of Miss Quigley’s own concessions.

27.	The Applicant opened Kinderland as a Montessori Nursery School in 1990 in basement premises in the Notting Hill Gate area of London.   She was first registered in 1992 as a day care provider by Westminster City Council under the Children Act 1989.   Her conditions of registration allowed her to care for a maximum of 24 children aged between two and a half and to five years old, of whom no more than 8 could be under the age of 3.   These was subsequently amended in August 2001 to no more than 26 children aged 2 to 5, of whom no more than 12 could be under 3.

28.	The 1992 registration certificate required staffing ratios of 2:8 for the younger age group and 2:16 for the older children, a total of four staff required, two of whom had to be qualified, with a minimum of two staff on duty at all times, regardless of the numbers of children present.   Students, by definition, cannot be included in the term ‘staff’.

29.	The registration requirements were set out in a document signed as accepted by Miss Quigley, dated 19th October 1993, and included:
•	maintenance of adequate records on each child, to include their names, dates of birth and attendance, and parental and medical contact details
•	no more than four children over 4 years of age to stay all day, with their lunch stored in a fridge
•	adequate supervision of children and not leaving them with any unauthorised person 
•	notification of any changes in staffing to the Day Care Adviser
•	the requisite declarations of health and disqualification by all employees and those assisting, together with agreement to submit to police checks and the obtaining of references
•	a training policy to enable staff development
•	a varied and balanced diet
•	safe, hygienic and adequately heated premises

30.	Throughout the thirteen years of Kinderland’s operation, Miss Quigley employed a large number of foreign staff on a part time, sessional basis, recruited mainly through friends or contacts.   Whilst some of these staff remained for periods in excess of a year, as far as we can establish from the incomplete records there were several, and sometimes frequent, changes in personnel.

31.	In addition, the Nursery took students on placement.   Originally, the London Montessori Centre sent students, but in a letter dated 22nd July 1994 confirmed that it had stopped doing so after what it described as ‘angry exchanges’ about one student’s punctuality.   

32.	The inspection procedure carried out by Westminster included pre-inspection questionnaires completed by the provider, followed by inspection visits and an annual report.   From 1992 to early 1997 the Westminster City Council Day Care Adviser (DCA) with responsibility for Kinderland was Ms Tyler.   

The Westminster years 1992 to 2001

33.	The relevant questionnaire dated 24th August 1993 completed by Miss Quigley showed 2 staff, Ms Irons and Ms Devine, and one student, Ms Zahedi, with a total of 24 children, including four aged 2 to 3 years and 8 aged 3 to 5 years.   Miss Quigley stated she kept a list of teachers to cover staff absences, and that both she and staff had been on a child abuse course.   She expressed a wish to extend her registration to cover 8 children aged 2 to 3 and 16 aged 3 to 51/2.

34.	Ms Tyler made three visits between September 1992 and October 1993.  Her annual report contained some positive aspects, including well-maintained premises, outdoor play in gardens nearby, and staff capable of managing behaviour.   But she also noted the lack of:
•	satisfactory procedures for staff recruitment
•	induction training, supervision and staff meetings
•	adequate records and parental consent forms
•	a child protection procedure
•	a keyworker system
•	fire drills and the display of certificates

She concluded that, as Kinderland had not been open long, the provision was not therefore fully established, and recommended the production of written policies and procedures.

35.	In May 1994, there were allegations about Miss Quigley from Mrs P and Mrs S, parents of children at the nursery, and former members of staff, including Ms Irons who had worked there for two years until December 1993.   The overall substance of these, included Miss Quigley:
•	Shouting at children
•	Shaking children
•	Children being frightened of her
•	Watering down milk
•	Making racist comments
•	Behaving aggressively or rudely towards parents
•	Not allowing parents past the front door
•	Having unrealistic expectations of children
•	Picking on children she disliked and telling them to ‘shut up’
•	Not allowing staff to comfort or cuddle children

Ms Irons gave an example of Miss Quigley screaming at one little boy, picking him up by the arms, shaking him and putting him on a ‘naughty chair’.  

36.	There were also complaints of a high staff turnover, staff leaving in tears and concerns about insufficient heating, poor nappy changing facilities, a child remaining in a soiled nappy and the condition of the nursery flooring.   Mrs P said she had withdrawn her child who had contracted a skin infection said to have been caused by cockroach eggs on the dirty nursery floor.   She also alleged other parents had withdrawn their children because of poor treatment, including a suggestion of a child being shaken.   Mrs S’ allegations were similar to Mrs P’s and to those of the staff.      

37.	Ms Tyler made an unannounced visit on 27th May 1994.   There were two members of staff and 13 children at the nursery.   Five children were, by Miss Quigley’s own admission, aged between 2 and 3, a breach of her conditions of registration.   Three of these were said to be in nappies.  Miss Quigley was said to be nervous and anxious during the visit, ‘angrily’ refused to allow Ms Tyler to see the children’s records, eventually shouting at her and asking her to leave.   On 3rd June 1994 Miss Quigley requested a change of DCA and complained to  the Director of Westminster Social Services department (WSSD) that Ms Tyler was ‘unhelpful’ and had reduced her to tears.   She also asked Ms Tyler not to make and further visits and repeatedly telephoned WSSD wanting assurances that she would not do so. 

38.	WSSD staff and police investigated these allegations, but, at a strategy Meeting on 6th June it was decided that no further child protection action could be taken, as the complaints were not sufficiently specific and the alleged victims could not be traced.  According to Ms Tyler, the allegations were seen as serious but that the inspection service should address specific issues with Miss Quigley including her conduct with children and her behaviour management policy.    

39.	During a discussion with Ms Tyler and a colleague a few days later, Miss Quigley denied the allegations, stating they were rooted in disagreements about fees.   She requested prior warning of any contact with staff or parents, and expressed concerns about unplanned visits, ‘inquisitorial’ enquiries and unprofessional conduct by Ms Tyler.  She also declined any supportive contact with other day providers ‘for business reasons’.   Concerns from the 1993 inspection report were also raised.   Miss Quigley undertook to resolve, by 26th July, the outstanding issues of a key worker system for the younger children, maintenance of the correct child/staff ratios, improvement of nappy changing facilities and not exceeding the numbers of children she was registered for.   In July she confirmed to Ms Tyler that she had appointed a key worker and used nearby gardens as an outside play area in the afternoons.    

40.	On 19th July 1994, another former member of staff wrote to Ms Tyler expressing a range of concerns about Miss Quigley.   Ms Jackson (now known as Mrs Lawrence) had worked at Kinderland, initially as a student from early 1991, and thereafter as a young, qualified Montessori teacher from about July 1991 to 1992.   Her allegations included Miss Quigley:
•	frequently leaving her alone in sole charge of the children for periods of time up to an hour when absent from the premises, making long telephone calls or talking to a friend in the kitchen.  This included a day coinciding with a visit by an inspector when Miss Quigley had gone to a wedding;
•	having a “very bad temper”, shouting on the telephone, and telling her off in front of the children; and her insistence on no contact with parents outside the nursery as “they may ask awkward questions.”   
•	allowing children to stay all day resulting in Ms Irons having to look after them during lunch on her own
•	removing food brought by parents

41.	Mrs Lawrence described children as ‘scared’ of Miss Quigley and said she 
•	shouted at children,
•	forcibly shook them and made them cry, 
•	picked on them (giving as an example, child M), 
•	humiliated them, 
•	used a ‘naughty chair’ to discipline them or, in one example, to stop a child crying about being separated from his mother/carer.   
However, another member of staff, Ms Zahedi, confirmed on 18th July in writing that she had no complaint about the way in which the nursery was run.

42.	By August Ms Pappacoda, Ms Tyler’s Team Leader, noted improvements in Miss Quigley’s practice and her relationship with the DCA.   Ms Pappacoda dismissed Miss Quigley’s June complaints against Ms Tyler as unfounded.  She told her she had asked Ms Tyler to discuss WSSD child protection procedures with Miss Quigley and to continue investigating Mrs Lawrence’s allegations.   Ms Tyler had been carrying out extra inspections of Kinderland, and it was agreed regular visits would continue to discuss issues highlighted by inspections as well as child protection procedures.  

43.	Mrs Lawrence repeated the substance of her allegations to Ms Tyler on 31st August, stating that she had witnessed child M being shaken and child TK being humiliated.   She had described her former employer’s behaviour towards children as “very harsh, totally inappropriate, aggressive and intimidating.”   Mrs Lawrence also revealed she herself had no knowledge of first aid, procedures (including child protection procedures), and no access to contact numbers or records relating to the children.  She gave her reason for leaving as Miss Quigley telling her she could no longer afford to employ her as the numbers were down and confirmed she had been given a good reference. 

44.	The child protection investigation having already ended, Ms Tyler made three further visits in 1994, preceded by a pre-inspection questionnaire.  This showed 6 children attending in September aged 2 to 3, and 6 aged 3 to 5, with two other staff, Ms Zahedi and Ms Fernandez, and a student, Mr Harrington.   Miss Quigley stated staff cover was achieved either by nannies remaining with the children or through contacts from other schools and she had had made arrangements for input on child protection issues.   Whilst de-registration had been considered, Ms Tyler’s annual report noted that most of the recommendations from the 1993 inspection had been met, and Miss Quigley was now using Westminster’s Record Cards.   However, there were still no satisfactory recruitment procedures, formal staff meetings or supervision and Ms Tyler had made a second request to be given copies of the staff job description and contracts.   

45.	Ms Tyler also noted children were not taken out despite access to the nearby gardens, and packed lunches were not in the fridge, but that nappy changing facilities were ‘clean and satisfactory’.   She decided to make unannounced visits in future, noting that Miss Quigley now “seemed to have understood the Local Authority role in Registration and Inspection”, although there were still outstanding issues on policies and procedures to be addressed.   Despite Miss Quigley’s previous assurances in October that she had started writing these, Ms Tyler had still not received them.   In a December visit Ms Tyler noted Ms Zahedi was very tearful and apparently leaving as the result of a disagreement with Miss Quigley.   

1995 to 1999 

46.	Successive inspectors expressed continuing concerns in their reports and notes about various failures by Miss Quigley, above all, to 
•	provide adequate and updated policies and procedures in compliance with the recommendations of the 1993 inspection report
•	give notification of staff changes 
•	keep adequate records on the premises, accessible to inspectors and to staff as appropriate
•	operate consistently adequate staff ratios, or provide a breakdown of staffing for each session
•	provide regular access for staff to relevant training, supervision, and formal meetings
•	provide formal induction training for staff
•	supply copies of job descriptions and staff contracts to inspectors on request despite promises in 1995 and 1996
•	demonstrate that the necessary paperwork, including health forms and declarations, was completed on new staff.
•	employ staff with relevant qualifications

47.	In February 1996, advised by Ms Pappacoda, her Team Leader, to set a timetable for outstanding issues to be met within a maximum of three months, Ms Tyler went through these with Miss Quigley, who agreed to complete a number of items by the following September.  The following November Ofsted also inspected the Nursery as part of a national programme of inspecting nursery education for 4 year olds.   Despite a largely positive report, which was well received by Miss Quigley, the inspector, observing that Miss Quigley was central to the provision of continuity at the nursery, noted some weaknesses in addressing children’s physical development, provision of play resources, staff knowledge of the nursery curriculum and their involvement in planning, assessment and record keeping.   The report recommended a planned programme of staff development and outdoor play.

48.	Various inspectors including Ms Cameron, the responsible DCA from 1997, also made observations about Miss Quigley’s practice in relation to the multi-cultural resources and outdoor play space, and the lack of a key worker system.   Recommendations in her 1997 inspection report included weekly, medium and long term plans, regular staff meetings, allowing parents freer access to the premises and deep cleaning of the quarry-tiled floor.  Ms Tyler concluded: “if all the points are addressed, Kinderland will continue to give children a sound educational basis’.

49.	In response to repeated requests previously to draft adequate policies and procedures, Miss Quigley had:
•	produced one side of an A4 sheet in February 1996 with brief details, promising to produce a separate booklet containing policies and procedures for parents by September 1996
•	confirmed they were all verbal only in a pre-inspection questionnaire in 1997, with a promise that they would be in the new prospectus by Easter
•	justified the brevity of those she had drafted by April 1998 by stating parents would be daunted by too much written material, despite the statement by Ms Tyler in January 1997 that Miss Quigley was aware they were ‘insufficient’

50.	On at least two occasions in 1998 Ms Cameron stressed in writing their importance as agreed codes of practice and principles for staff and parents, and that drafting, with subsequent training for staff, was now a high priority because “staff must have agreed codes of practice and principles to follow if they are to provide consistency of care and opportunity for children to learn and develop their full potential in a regulated and safe environment [and] parents should be provided with a service that not only clarifies its ethos, but also its responsibilities and practice.”  She stressed they needed to be comprehensive, and include Child Protection, which was a legal requirement and Behaviour.

51.	When addressing matters in questionnaires such as staff appraisal, supervision and training as well as any issues staff might have identified for discussion during inspection, Miss Quigley 
•	frequently confined her responses to the single phrase ‘common sense’ 
•	on several occasions confirmed she did not take up police references on staff or, alternatively, failed to answer questions on vetting 
•	claimed there were regular staff meetings
•	identified no serious training issues
•	in response to arrangements for staff cover, said staff were ‘seldom sick’ 

52.	All the staff worked part time and for different sessions.   From Miss Quigley’s own responses to pre-inspection questionnaires and some of the limited records available, it is clear there were a number of staff changes and several students, for example:
•	From 1995 to 1997 the staff group largely consisted of 3 staff, including Ms Summers, a mother and daughter by the name of Baabaaissa, who were joined by Ms Miles by the annual inspection in January 1996, and in 1995 a student, named only as ‘Zarah’, with a total of seven 2-3 year olds and twelve 3 to 5 year olds
•	In April 1997 staff included Ms Polak-Widlak and Ms Dubois, and Ms Anderson, an exchange student, with a total of eight 2 to 3 year olds and sixteen 3 to 5 year olds
•	In 1998 Ms Cameron noted two staff had left to be replaced by two whose details had not been notified. 

53.	None of these staff appeared to have Montessori qualifications, and, for example, in 1998 only one of the new members of staff held a relevant qualification.   In February 1999 Ms Cameron emphasised in writing to Miss Quigley the requirement for 50% of the staff to have relevant qualifications and asked how she intended to fulfil parents’ expectations that their children were receiving a Montessori education when she did not employ staff with Montessori qualifications.

1999 to 2001

54.	In 1999 staff included:
•	Ms Scott, a young, qualified Montessori teacher, employed between September 1998 and January 1999, from 9 am to 4.pm on Mondays and Tuesdays; 
•	Ms Swan, employed from summer 1999 to December 2001, initially from 12 to 4 pm on Mondays, Tuesdays and Thursdays, later changing to Wednesday and Friday mornings; 
•	Ms Polak-Widlak, employed mornings only Monday to Friday from April 1998 until June 2002 
•	Ms Dubois, employed to work Monday to Friday mornings only from September 1997
•	Ms Skribic for 3 mornings a week part time 
•	Ms Ikhlef on the same 3 mornings as Ms Skribic from June 1998

55.	On 27th January 1999, Ms Scott contacted WSSD to report that, two days earlier, alerted by the sound of Miss Quigley shouting, she had seen her hitting child J, aged 3, on the back.   In her subsequent contemporaneous written description of this incident, Ms Scott stated J had not been distressed, but that Miss Quigley had been ‘furious’.  Ms Scott said she felt strongly about the incident and had remonstrated with Miss Quigley about it, but Miss Quigley had responded that child J ‘had not fallen over’.   Ms Scott accused her of being ‘rough’ with the children, ‘grabbing’ and ‘shaking’ them, giving a previous example of her grabbing child R, who was not yet 2.   She also raised with her the issue of children not being taken out.  In an interview with a social worker, Ms Mitchell, Ms stated she had seen Miss Quigley 
•	generally handling children roughly, often holding their arms down by their sides, and shaking them when they had done something wrong
•	yelling at children on other occasions

She repeated her concern about children not being taken out and said she had decided to resign because she could not work in the environment of Kinderland.      

56.	A few days later, Ms Hall, a contemporary of Ms Scott, told Ms Cameron that children were constantly shouted at, grabbed on the shoulders and shaken, often made to sit down and not play and not taken out all day.   She also alleged their snack consisted of half a biscuit and a small amount of milk, lunches were often thrown away and parents not informed of this.

57.	The allegations were investigated by the Westminster Child Protection Unit.   Within a matter of days, Mr Desjardins, a WSSD Child Protection Specialist confirmed his view that, whilst he had no reason to believe the allegations were malicious, they were ‘not obviously a child protection matter.’   He said the allegations fell between poor practice and complaints involving physical contact, necessitating discussions with Miss Quigley.     

58.	In a subsequent interview with Ms Mitchell, Miss Quigley said she had discussed the incident with child J’s parents the day it happened, stating she had only ‘patted’ her on the shoulder when she refused to pick up pencils from the floor.   She conceded she did occasionally raise her voice as a necessary part of disciplining children, but alleged Ms Scott’s referral was motivated by dissatisfaction about lunchtime staffing arrangements and criticised certain aspects of Ms Scott’s work.

59.	The focus having returned to practice issues, Ms Cameron visited Miss Quigley and wrote stating only 3.5 of the 10 recommendations made at the last inspection in June 1998 had been met.   She enclosed an agreed Action Plan setting out ongoing areas of concern, which reiterated the need to notify changes of staff and their details and to draft policies and procedures on a number of topics, including Behaviour Management.   It gave set timescales for compliance of one week for notification details, five weeks for a Behaviour management policy and written procedures for staff and two months for compliance with most of the recommendations in the 1998 report and for the provision of regular physical exercise for the children.   But Miss Quigley told her if the DCAs did not like her ‘style‘, she did not need to meet any of the recommendations.  

60.	In April 1999 Miss Quigley complained about Ms Cameron, making a range of allegations about treatment by the social worker and DCAs, whom she said had ‘bullied’ her for 9 years.  She said she felt she was being “told how to run the school,” and complained about having to deal with pre-inspection matters the first day of the nursery term.   Ms Cameron agreed to change the date of the inspection.   Ms Delahunty, the Westminster Quality Assurance Manager investigated her complaints and confirmed that, bar such issues as an apparently inappropriate reference to Miss Quigley’s health, none of her complaints were upheld.   She also stated another DCA would accompany Ms Cameron on the inspection due on 13th May 1999.   Miss Quigley confirmed she was pleased with the outcome of this investigation.   

61.	In her pre-inspection questionnaire, Miss Quigley recorded eight 2 to 3 year olds and sixteen 3 to 5 year olds on the premises with 3 other staff, Ms Polak-Widlak, Ms Dubois, Ms Skribic and Ms Ikhlef.   At inspection Miss Quigley was in breach of her permitted numbers by one child, but this was accepted by Ms. Cameron.   Miss Quigley’s questionnaire responses again showed a failure to answer issues on police references.   She said staff were ‘seldom sick’, covered all areas, but had not completed any specialist training, and there were induction procedures and regular staff meetings, but not recorded in writing.  Ms Cameron noted improvements, for example in resources:  her report stated Miss Quigley had supplied the details requested in the Action Plan and had “demonstrated an understanding” of the requirements of registration including adopting a “rigorous approach” to ensuring an appropriate level of staff with qualifications in child care and or Early Years, including Montessori training.   Miss Quigley had assured her that each staff member had received training in child protection.   She had produced a Behaviour Management Policy, but had still to produce the accompanying procedures outlining agreed methods of dealing with difficult behaviour and appropriate responses to distressed children.

62.	Ms Cameron concluded Miss Quigley was “developing her provision to meet recommendations from previous inspections and has worked hard for this purpose in the last few months”.   Her recommendations included giving three staff designated roles in such areas as child protection, holding weekly staff meetings to include reviews of practice, extending the existing policy on behaviour management, providing outdoor play opportunities, adapting arrival and leaving procedures to provide more open access and ensuring notification of any proposals to vary the requirements of registration.   She confirmed the inspection had been “satisfactorily completed,” and continuation of Miss Quigley’s registration.

63.	Ms Szyszkowski, a WCC DCA since 1992, took over responsibility for Kinderland in May 1999.   In a pre-arranged visit in October, she noted that the few books available were in poor condition and that “staff did not express any opinions.”   She renewed the previous attempts to obtain a complete set of policies or procedures satisfactory to the department from Miss Quigley, asking for copies in December with a view to discussing a framework.   In a February 2000 visit Miss Quigley was said to have ‘reluctantly’ agreed to start on the process, with Ms Szyszkowski observing that “any progress is likely to be very slow as [Miss Quigley] procrastinates over the value of any change.”

64.	In June 2000 Ms Szyszkowski supplied Miss Quigley with information on, and examples of, policies, protocols and procedures relating to the provision of a safe environment for children.   These included guidelines from the National Children’s Bureau on policies, an example of a first aid and child accident procedures, a detailed booklet from a recognised national organisation emphasising the need for a wide range of policies and procedures and their contribution to good communication and the smooth running of a nursery.   However, Miss Quigley said she had “no intention of changing her existing paperwork, policies and procedures”, had not followed any of Ms Szyszkowski’s suggestions in her letter and “did not intend to.”   She claimed policies and procedures were “not a legal requirement of the Children Act” and that Westminster had made unacceptable demands of her for the previous ten years, leading to her extreme distress and unwillingness to change her practice.  Later, in March 2001, she declined the offer of assistance from Ms Whinnett, a Westminster Health and Safety Adviser, in developing her health and safety policies, stating she had had assurances from a range of Kensington and Chelsea professionals that her paperwork was in good order.   

65.	The format of pre-inspection questionnaires was much more detailed by the time of the annual inspection on 9th June 2000.   Miss Quigley again gave ‘common sense’ as an answer to a number of issues, including training and positive images of diversity.  She repeated her claims that there were regular staff meetings but not recorded in writing, induction and supervision were verbal and staff had received no training during the past year.   Police references were not taken up as she claimed she had been told they were no longer in use.   She stated lunchboxes were stored on a bench and the premises were cleaned each week.   

66.	Ms Szyszkowski’s joint inspection with her colleague Ms McLean, recorded 17 children attending aged 3 to 5 years, a large proportion of whom spoke English as an additional language.  They noted positives, but also that:
•	the 1999 inspection report recommendations were either wholly or partly unmet, and comprehensive policies and procedures were still absent, 
•	individual child records contained basic information only and there were no child development records, 
•	there was no designated child protection officer, 
•	staff had complementary skills and worked as an organised team, but had not attended training and received no regular individual supervision
•	full police checks on staff had still not been carried out
•	children were seen arriving when there was only one member of staff on duty and there were still no arrangement s for parents to enter the nursery on a daily basis

Notably, they said the nursery had “chosen not to link with support networks…there is a history of dissatisfaction with the support [it] had received from the Local Authority.   The cumulative effect is that [it] is somewhat isolated and has not updated areas of practice in line with the current expectations on those providing care and education in the Early Years field.    The lack of recent staff training has added to this weakness in  [its] general organisation and practice.  [It] must now comply with the requirements of registration …There is an urgent need for the overall numbers and times of children attending to be correctly noted on the certificate of registration…”

67.	The report gave a summary of a number of requirements to be met by December 2000, including a minimum level of two staff, and a child protection procedure, with a separate set of recommendations relating to training and liaison with parents.   But in an unannounced visit in October, Ms Szyszkowski found Miss Quigley was extending care for a total of seven children aged 2 to 4 years over the lunch break, a breach of her registration conditions. Miss Quigley subsequently disagreed with parts of her report, accused her of being ‘vindictive’ and demanded she write to withdraw a suggestion she had queried the need to work with a second member of staff.  Ms Szyszkowski repeated in writing that minimum staffing levels were a registration requirement.   

68.	Miss Quigley was told in November that her June request for an increase in her registered numbers to 28 children was not possible until ‘basic requirements’ had been met, a meeting had been fixed for November to go through outstanding issues with her, and she was requested to bring policies, procedures and revised documentation then.    She then made a formal complaint to the Director of Education about what she described as ‘games’ DCAs had played with her for ten years on how she wished to run the nursery school.   She alleged, amongst other things that:
•	the 1994 parental complaints had arisen not merely from a money dispute, but also because the parent had objected to her child being at a nursery attended by predominantly black children;
•	she was ‘scared’ of Ms Cameron, who had used the 1999 allegations to force her to write many policy documents, which were then rubbished
•	Ms Cameron had made unpleasant telephone calls to her, which she had then taped by arrangement with B.T.
•	She regarded Ms Szyszkowski’s reference to the condition that only four children stay over lunch as a ‘misprint’, alleging more than this number had stayed previously during the time of Ms Tyler and Ms Cameron

69.	In January 2001 Miss Quigley said she was unavailable for a meeting before Easter, reiterated her claim about the numbers of children over lunchtime, repeated earlier allegations of being harassed and treated in a ‘racist’ manner, accused Ms Szyszkowski of being a ‘nuisance’ and stated she should not phone her again ‘under any circumstances.’   Miss Quigley raised her voice and became agitated during a subsequent unannounced inspection visit, but calmed down and agreed to a Fire Safety Officer visit and a further meeting.

70.	Two weeks later Miss Quigley met with Ms Szyszkowski, Ms McLean and Ms Delahunty and they discussed her complaints and concerns, including her view that she was being asked to do things she did not have to do such as: 
•	the production of policy documents, 
•	ensuring more than one member of staff was on duty at all times and 
•	the need to apply for a variation in registration requirements if she wished to have more than 4 children staying over the lunchtime.   

71.	Ms Delahunty’s letter confirming the discussion, reminded her that the requirements of the Children Act 1989 were specific in relation to policies and recorded her willingness to join the Westminster Provider’s Association through which, amongst other things, she could access training and policies.   It also reminded her that application for variation was likely to make her subject to Full Day Care Standards, and it would be a good time to ensure her paperwork and inspection requirements were in order, particularly in view of the imminent transfer of responsibilities to Ofsted. 

72.	The production of policies and procedures documentation was thwarted by Miss Quigley cancelling a meeting in March 2001 the day before and by her behaviour towards Ms Szyszkowski and Ms McLean at a meeting to discuss these on 27th April 2001.   Within minutes she had made accusations of ill treatment, left the meeting and going into the corridor, where, according to a number of people elsewhere in the building, she was described as distraught, screaming loudly, shouting, yelling and wailing and making accusations against council staff.   Ms North, an Assistant Director, was then called to the Reception where she had found Miss Quigley crying and distressed and wanting to complain to the Director of Education.   Interviewed by her, Miss Quigley alleged DCAs were unfair, racist and discriminatory, deliberately disrespectful and difficult, victimising her and being humiliating and derogatory towards her efforts to produce the correct documentation, and there were an unreasonable number of visits being made to the nursery.   She was most emphatic that there were no criticisms of her quality of care or anything related to the safety of the children and said she believed a fire brigade officer had been sent to visit her in order to harass her.

73.	Miss Quigley’s complaints of November 2000 had received a response from Ms Delahunty in February 2001.   In May, Miss Quigley stated this had not covered the racism issues or the ‘unreasonable’ requests for policies, and went to make further complaints against staff.   This was followed in June by her claim that another officer’s summary of her complaints was inadequate, and she took issue with, amongst other things, the ‘body language’ of staff.   

74.	In April Miss Quigley renewed her request for a variation in her terms of registration to increase to 28 children between 2 to 5 years and for 12 children to stay to lunch.   That same day Ms Szyszkowski  wrote to her saying she had still not received any revised policy documents and enclosing a copy of the National Standards.   Miss Quigley provided drafts on 26th April.

75.	In May 2001 Ms Delahunty gave Miss Quigley a formal warning about her behaviour towards staff.   She stated Council records showed she had been repeatedly reminded, advised and assisted about the requirements of the Act, had still had not produced a satisfactory set of policy documentation, was in breach of registration requirements with regard to children attending for lunch and had two DCAs allocated to her instead of the usual one.   She made it clear that Miss Quigley’s behaviour and continuing lack of co-operation had left Ms Delahunty with ‘serious concerns’ and warned her of the possibility of legal action in the event of further harassment.   Ms Szyszkowski also wrote to Miss Quigley commenting on the draft policy and procedure documents, raising various key points that had been omitted and asking her to refer to the local Area Child Protection Committee (ACPC) handbook.   She pointed out that completion of the documents was outstanding from the 2000 inspection and no application to vary the registration could be considered until this was done.   She enclosed copies of forms for declaration of health, disqualification and police checks, which all had to be completed and returned prior to the annual inspection.  

76.	There were some positive observations in the July joint inspection report by Ms Szyszkowski and Ms McLean.  But they noted minimal health and safety policy and procedures, a need for staff to have a copy of the local ACPC handbook and to attend updating training on child protection responsibilities, a lack of police checks and some records, and the need for outdoor play to be planned into the children’s routine.   The summary of requirements specifically included the need to develop policies in line with National Standards.  Most notably it concluded “as at the last inspection this nursery continues to be isolated from the support being offered through Westminster’s Early Year’s Development and Childcare Partnership and the Westminster Provider’s Association.   There is a reliance on repeated routines and a reluctance to encompass the changes and developments that constitute the recent improvements in Early Years care and education nationally.”   

77.	Despite these concerns, Miss Quigley was successful in getting a variation in her conditions of registration to a maximum of 26 children aged 2 to 5 of whom no more than 12 aged 21/2 to 5 years were allowed to stay all day, with a staffing ratio of 1:4 for 2 to 3 year olds and 1:8 for 3 to 5 year olds.   The requirements were similar to those previously applicable, including the provisions on staffing qualifications and minimum levels and she was specifically reminded of her duty to notify staff changes to Ofsted, who assumed responsibility for inspection and continued registration of Kinderland on 1st September 2001. 

The Ofsted years 2001 onwards

78.	On 15th October 2002 Ms Moore, an Ofsted inspector, and Ms McLean, the Westminster DCA, conducted a "transitional inspection", having the purpose of establishing whether there was compliance with the new National Standards laid down under regulations made under Part XA of the 1989 Act.   Their joint report, which set those Standards out in summary, noted the lack of a key worker system or operational plan at Kindlerland.   There was also a new member of staff, Ms Malek-Huff whose required checks had not yet been processed, but an assurance was given that she was never left alone with the children.   Miss Quigley also gave assurances that there were regular staff meetings and training, children were taken to the nearby gardens to play and drinking water made available to them on a regular basis.  

79.	In 2003 the staff group included 
•	Ms Malek-Huff, who had been there from September 2002
•	Ms Clifton, (a qualified teacher from Russia), who worked mornings only from January 2002 and Ms ‘Agnes’, from Poland, employed from January 
•	Ms Cheviot, who had a conviction for fraud, and Ms Mansi
A copy of the register for the weeks commencing 4th and 11th July, which was supplied by Miss Quigley, showed 18 children in attendance at various times during the week, some of whom were under 2 years old.
 
80.	On 2nd July 2003 child protection allegations were again made against Miss Quigley.    Ms Malek-Huff resigned and immediately contacted WSSD expressing concerns about Miss Quigley’s treatment of the children in her care.   She also contacted the Emergency Duty Team saying she had seen a child ‘SE’ being shaken by Miss Quigley.  These allegations were confirmed to a social worker, Ms Tobierrre subsequently in formal interview.   Ms Malek-Huff’s full accounts described SE, aged 2, who was crying when her mother left, being pushed by Miss Quigley towards Ms Malek-Huff who was told to take her away.   Miss Quigley had returned some minutes later, and finding SE still crying, grabbed her, put her in the ‘thinking chair’, holding her on each side of her shoulders, shaking her and shouting ‘No, No’.   Ms Malek-Huff had comforted the child whose body was shaking, but she continued to cry, unable to settle.   Miss Quigley had said nothing, but had then started to rub SE’s back.

81.	Ms Malek-Huff also reported that she had previously seen child ‘EL’ similarly treated when the child had accidentally put her chair on to Miss Quigley’s foot.   She made other allegations about Miss Quigley shouting, shaking children and putting them into a ‘thinking chair’, providing inadequate snacks and heating, failing to do police checks and actively discouraging staff from speaking to parents.   She said she had left because she had not been paid.

82.	Ms ‘Agnes’, who had already left the nursery, was contacted, and stated Miss Quigley had generally shouted, used a ‘thinking chair’ as punishment for misbehaviour, and she had witnessed Miss Quigley holding a child by the shoulders and shaking the child when s/he had got in the way.   She also confirmed children remained inside the nursery all the time.

83.	Ofsted did not immediately close the nursery despite concerns expressed by WSSD, but made two inspection visits on 7th and 8th July 2003 respectively, the latter being the last day of term, when Ms Tobierre was also present.   A number of concerns were recorded including a disregard of the necessity for Criminal Records Bureau checks.   Miss Quigley was given until 10 am on 8th July to find a suitable person to take over as manager.   

84.	Police took statements from various parents and staff, including
•	Mr A, father of RH, SH and LD, who confirmed RH had mentioned the chair, which had also been used for LD.  He had concerns about the children returning home with urine soaked nappies resulting in rashes, limited access to the nursery, Miss Quigley’s inconsistent attitude to this, and her mood swings.   He alleged she had failed to inform him of ‘scraps’ LD had been in, or of a specific incident when another child had kicked her between the legs resulting in vaginal soreness.
•	Ms R, a Brazilian, who said her child, L2, had been accepted at the nursery in July before the age of 2.  She said she had not been impressed by the nursery nor allowed into it, L2 had returned home hungry and she had decided not to take up the place available in September
•	Ms ST, who confirmed her son had referred to a ‘stinking chair’, but she had no concerns
•	Ms Clifton, who confirmed that, although she opened the door to parents, she had little to do with them, the children had a small amount of water and a biscuit as a snack and did not go out, nor were the windows opened.   She described the children as always working and not allowed to run around.   She said she had heard Miss Quigley shouting and confirmed she used the thinking chair for a matter of seconds

85.	Interviewed by Ms Tobierre on 8th July and again by police on 21st August, Miss Quigley denied the specific allegations, confirming she had seen child S2 upset and had lifted her under the arms and put her on the ‘thinking chair’, but had not shouted at her or shaken her.   She told police this was the nearest chair.   She recalled the earlier incident with child E, but did not accept ‘she was shouted at or slapped’ and said she and E had made a joke of the incident.   

86.	Miss Quigley also 
•	said she had used the ‘thinking chair’ only rarely when a child refused to share equipment or had hurt another, and then only for a matter of seconds and that it had been Ms Malek-Huff who had used it inappropriately.   
•	denied shouting at either children or staff stating that this would “not be in her best interests”.   
•	said allegations she was abusive were ‘rubbish’ because, with only 14 children attending, they were ‘very much left to Ms Clifton and Ms Malek-Huff whilst she occupied herself with administration’.  
•	When challenged about ratios, contended 3 of the children in July had been visitors.
•	refuted suggestions that the parents were unable to come inside, explaining that they were usually in a hurry, stating she had arranged access on Wednesday afternoons, (when the nursery was closed), or alternatively by appointment
•	denied that the nursery was cold or snacks or drinks were inadequate, contending there were cultural reasons for only giving children water
•	denied the incident with Mr A’s child LD had ever happened and alleged his children soiled nappies more than other children did and often arrived with wet nappies

87.	Miss Quigley also made various criticisms of staff, claiming Ms Malek-Huff had repeated previous demands for a pay increase on the day of the alleged incident with child S and threatened to make sufficient trouble to cause a closure of the nursery if she did not get it and
•	had reacted badly to being criticised for frequent lateness
•	was bored and not really capable
•	put a lot of children on the ‘thinking chair’ 
•	had problems with her memory and a tendency to ‘flare up’ , and was too shy to talk to parents
•	was jealous of Miss Quigley.   

88.	Furthermore, she said Ms Swan
•	had been on a great deal of medication, 
•	had mood swings and was forgetful 
•	was unable to cope when she returned to work, losing her temper and shouting at the children.
and that Ms Polak-Widlak had wanted to be sacked so that she could claim unemployment benefit.   Her explanation for the history of repeated allegations from 1994 onwards was that staff knew each other.   She also claimed she had been reluctant to sack staff, either because she was afraid of trouble or preferred them to leave of their own accord.   She said she employed staff through friends or contacts and did police checks ‘if they have to be done’; further claiming the wrong forms had been obtained from the police for a number of nurseries.

89.	A number of strategy meetings took place from 4th July.   Previous inspections had not referred to any concern about unusual behaviour by staff, but Ms Moore told the meeting on 11th July that she had noticed staff present did not seem to want to make eye contact and there was nowhere to talk to them, with Miss Quigley behind them all the time.   Ms Tobierre confirmed that Ms Malek-Huff had told her Miss Quigley had told staff not to talk to inspectors.

90.	By the third strategy meeting on 22nd August it was noted various parents had been interviewed, the majority of whom said they were satisfied with the nursery.  Several had proved difficult to track down, but a few had indicated concerns about some issues such as discipline.   By the September meeting it was reported that Mr A was the only parent contacted who had any concerns.  D.C. Greenwood also stated police had spoken to Ms Adams, an employee some ten years previously, who said she had seen a child shaken by Miss Quigley.   Ms Polak-Widlak, who had witnessed Miss Quigley screaming and shouting at children and staff, had confirmed she had been sacked by Miss Quigley and had found it difficult to obtain other nursery employment as a result, but was not willing to make a statement.  Ms Clifton, who wished to continue working at the nursery, was also unwilling to make a statement, but said she had not seen any inappropriate physical disciplining of the children.   Ms ‘Agnes’ had corroborated Ms Malek-Huff’s statement but was now refusing to return calls.   The view of the police and social services was that they believed children had been shaken and that Miss Quigley would continue to shake them.   

91.	Despite the fact that the child protection investigation had not been concluded and Miss Quigley had no arrangements in place for a Deputy Manager to run the nursery and did not appear to have anyone who could fulfil this role to Ofsted’s satisfaction, she stated she intended to re-open the nursery.   Her registration was therefore suspended on 5th September.  The investigation was concluded on 9th September 2003 with a decision by the Police and Social Services to take no further action in relation to the allegations due to a lack of evidence. 

92.	Although neither agency pursued further enquiries, Mr Jamal, the chair of four out of five of the strategy meetings, recorded that “the range of allegations of a similar nature across a number of years lends weight to the conclusion that Miss Quigley regularly shouts at staff and children and on occasions will physically shake children.”   WSSD told Ofsted that, due to the number of separate allegations within this and earlier similar investigations in 1994 and 1999, it had concerns about the standard of child care and methods of discipline employed by Ms Quigley.   Ofsted then carried out its own investigation and an announced inspection visit took place on 13th October by Ms Corr and Ms Moore to discuss the issues with Miss Quigley. 

93.	Throughout the course of this investigation Miss Quigley made certain assertions about her state of health, ranging from claims of an eye condition, painful gums, and the need for an operation for a tumour. On 7th July, on being told of the child protection investigation Miss Quigley told Ms Lloyd and Ms Halls, in tears, that she was due to go to hospital on 25 July 2003 for major surgery for a tumour.  She repeated similar information to Ms Dugdale, Ofsted's Area Manager, the following day. On 17 July 2003 Miss Quigley telephoned Ofsted's team manager, Ms Knight, expressing concerns about, amongst other things, her hope that the investigation would be completed by 25th July, as she would be undergoing treatment that day. She hoped that she would be contactable during August but said she did not know how the treatment would go.  However, medical reports did not support these claims.  In reports in October and November her G.P, with whom she had been registered since 1983, stated Miss Quigley had had an accident in 1995 resulting in a retinal detachment from which she had recovered completely. This was supported by a letter dated 16th February 1996 from a Consultant Surgeon at Moorfields Eye Hospital.   The G.P. confirmed Miss Quigley enjoyed good health, had never suffered from any health problems that might diminish her ability to run the nursery and had never had a brain tumour or any suggestion of one.   Miss Quigley wrote to Ms Corr on 5th November, referring to this report, claiming that the question of her physical health had been ‘grossly exaggerated’, and confirming she did not have a tumour, nor had there ever been any question of having an operation at any time.

94.	A second suspension was imposed on 18th October, eventually followed on 3rd December by Ofsted’s Notice of Intention to Cancel Miss Quigley’s registration on the grounds that she was not suitable to look after children under the age of eight, was not complying with the Regulations under the Act, and had failed to comply with a condition imposed on her registration.   Ofsted cited lengthy reasons in support of these grounds, which included, in summary:
•	details of the child protection investigation in July 2003 and Miss Quigley’s response to that investigation, 
•	the findings of the inspection carried out in October 2003 and the doubts raised about her veracity and integrity in relation to concerns she had raised about her health, 
•	the previous child protection complaints made and investigations carried out in 1994 and 1999, her attitude to inspections and her alleged behaviour towards inspectors which, it said, had abused the trust and confidence integral to the relationship between a provider and the registration authority
•	in breach of National Standard 1, failing to ensure appropriate criminal record checks for staff despite repeated emphasis by the registration authority on the importance of these, failing to notify Ofsted of staff changes, and employing unqualified staff whom she failed to supervise.
•	In breach of National Standard 2, failing to comply with the required staffing ratios
•	In breach of National Standard 11, using a behaviour management technique of punishing children for misbehaving by isolating them on a ‘thinking chair’, failing to record this or notify it to parents or discuss it with inspectors, grabbing, pulling and shaking children and shouting at them
•	In breach of National Standard 8, providing inadequate food and drink and failing to record specific dietary needs
•	In breach of National Standard 4, failing to provide or use outdoor play facilities
•	breaching the Day Care and Child Minding (National Standards) Regulations 2003 (which replaced the earlier 2001 Regulations in August 2003 containing similar provisions), which requires providers to:
a)	keep a statement of the arrangements in place for the protection of children and the procedures to be followed in the event of allegations of abuse or neglect,
b)	keep records of the personal details of children at the registered premises and keep these for two years,
as demonstrated by her response to the allegations made in July 2003 and in failing to provide adequate details of a child who had recently stopped attending the nursery
•	further concerns about Miss Quigley’s attitude towards staff and her explanations for the allegations made against her, her attitude towards the management of the nursery and her dealings with parents
•	breaching the conditions of her registration in allowing children under the age of two to attend the nursery

95.	Ofsted convened a meeting of its Objection Panel on 4th February 2004, which Miss Quigley attended, represented by Ms Sinclair of Counsel.   She put forward proposals for undertaking additional training, delaying the re-opening of the nursery to the following Easter with, thereafter, restricted opening hours under Ofsted’s guidance and control pending its approval for full day opening.   
After due consideration, Mr Bramley, the Ofsted London Regional Manager gave written confirmation on 11th February of the intention to issue a Notice of Decision to cancel Miss Quigley’s registration.   He stated that the Panel had observed “whether the deficits of skills, attitude, knowledge and behaviour are capable of being remedied by training is a matter of conjecture…Ofsted cannot take a view as to how long the training should be in order for it to be effective…The intention to undertake courses, whilst welcome, is not of itself evidence of the suitability of the provider…(although) it is a positive step to seek to acquire necessary additional skills…it is possible to reapply for registration when prospective providers consider they have acquired the necessary skills and can demonstrate their suitability.”   It had also noted that previous attempts had been made by Westminster to provide structured advice and guidance over a period of time.   It concluded that the matters covered in the Notice of Intention were particularly serious and some were long standing and Miss Quigley remained unsuitable to be a day care provider.

Miss Quigley’s appeal

96.	Ofsted’s case, in summary, relied on the matters set out in its Notice of Intention, and its serious concerns in relation to Miss Quigley’s suitability to care for children under 8 years old.   It contended it was not unreasonable for Ofsted, as the new regulatory authority, to rely upon information available to the previous registration authority to assess her suitability;  with particular reference to the following: 
•	The separate but similar nature of the allegations made against the Applicant of physical abuse of children and general care of children between 1994 and 2003 and the Applicant’s conduct in the past when faced with allegations in relation to child protection concerns. 
•	A significant lack of awareness of child protection issues demonstrated during the children protection investigation in 2003; in particular, by the Applicant’s firm and express intention to re-open despite being incomplete CP investigation and her attitude towards CRB checks
•	Relying on evidence provided by her, Miss Quigley’s inconsistent claims about her health, which raised doubts about her veracity and integrity generally to work wIth Ofsted. 
•	A wholesale non-compliance with National Standards and an inability on the part of the Applicant to appreciate the relevance of them and to ensure compliance with them at all times.  
•	Her lack of understanding of the relationship of trust, openness and integrity which must exist between Regulator and Provider, noting her inconsistent and unhelpful conduct in responding to Ofsted’s concerns, high level of resistance to regulation and advice, and that any attempt to introduce this had led to prevarication and obfuscation, almost inevitable complaints and the presentation of anything that would obstruct the regulating authority, with two deliberate and persistent attempts to mislead Ofsted in July 2003
•	Breaching a condition of her registration, namely caring for children under the age of two years old
•	Failing to comply with statutory requirements. In particular: 
i.	By failing to demonstrate proper procedures were in place to deal with allegations made of abuse or neglect of children against the Applicant or a member of her staff. 
ii.	By failing to keep proper records of the personal details of children being cared for at the registered premises
iii.	By allowing unqualified and unchecked members of staff to work at the Nursery and failing to keep proper records of staff details. 
iv.	By failing to maintain proper staff: child ratios 
v.	By failing to consider the proper nutritional needs of children or to keep records in relation to the special dietary needs of a child and to ensure that these dietary requirements are adequately met at all times, as required.  
vi.	By failing to use appropriate behavioural techniques. 
•	A resistance to regulation and a refusal to co-operate with the specific requirements of registration, including written policies and procedures, over the period 1993-2001 as shown by the evidence from the period of Westminster City Council’s involvement with her, when each successive Day Care Adviser attempted to secure co-operation and compliance with this requirement.   Furthermore, at the Transitional Inspection on 15 October 2002, this was an area in which work still required to be done and there had still been no compliance by the date of this appeal hearing.  Miss Quigley’s response to pressure to comply was invariably to complain about the Day Care Adviser.  Formal complaints had been made against Ms Tyler, Ms Cameron, Ms Szyszkowski, as well as three other staff, including Ms Tobierre, the social worker investigating the child protection allegation in July 2003, but none of them upheld.

97.	In relation to child protection issues, Ofsted stated the case did not stand or fall on allegations of physical abuse but relied in part upon the evidence of several former staff members of the Nursery who had independently raised similar or identical concerns about Miss Quigley in 1994 and 1999. In assessing information previously available to Westminster, these had recounted several incidences identical or similar to the allegations made in 2003, which, although neither proven nor unproven, indicated Miss Quigley had used inappropriate behavioural management techniques at the Nursery.  In addition, it had relied on Miss Quigley's past conduct when faced with such allegations, including a failure to cooperate with the various agencies that sought to help her and her aggression towards them. 

98.	Ofsted acknowledged that despite past concerns in relation to the Applicant noted by Westminster, the previous registration authority, the Applicant remained registered and her registration was transferred to Ofsted in September 2001. However, Ofsted's statutory duty is to consider the present suitability of the Provider and to make its own decisions in respect of the registered provider. If Ofsted deems the registered provider unsuitable at the present time, it has a duty to act appropriately and in accordance with its duties for the protection of children at all times

99.	According to Miss Freeborn, the issues for decision were firstly, and most importantly, whether the Applicant ceased to be qualified for registration within the meaning of s.79B(4) of the Act.   Additionally:

•	Is every person looking after children at the Nursery suitable to look after children under the age of 8, in particular have the relevant CRB checks been completed in respect of every member of staff?  
•	Has the Applicant complied with the National Standards created pursuant to section 79C of the 1989 Act? 
•	The nature and extent of the Applicant's failure to comply with a condition imposed on her registration, in particular looking after children younger than aged 2.  
•	Has the Applicant subjected children at the Nursery to inappropriate physical handling in particular by shaking them? 
•	The behaviour management techniques in use at the Nursery, in particular the use of the "thinking chair".  
•	The number of staff employed by the Applicant to care for the children at the Nursery.  
•	The Applicant's approach to the implementation of a child protection policy at the Nursery.  
•	The Applicant's interaction with the registration authorities over the period of her registration, in particular her reaction to investigation and scrutiny of the provision at the Nursery. 
•	The Applicant's assertions as to her own health, namely that she was scheduled for surgical treatment of a tumour on 25 July 2003 and that she had a medical condition which would prevent her shaking children as alleged by members of staff 
•	The nature and quantity of refreshments offered to children at the Nursery  
•	The physical environment provided at the Nursery, in particular whether there is adequate heating.  
•	What additional learning or training does the Applicant believe she requires before she could be trusted to re-open the Nursery?  

Miss Freeborn stated that some of the allegations were sufficiently serious to stand alone as a basis for cancellation, but asked us to consider the entire list, which she said included only matters relevant to the Applicant's suitability to be registered. 

100.	As set out in her written grounds of appeal, the Appellant argued that the decision by Ofsted to cancel her registration was wrong in that Ofsted 
“a) Failed to accept that in relation to the child protection investigation in 2003 the allegations made were not founded 
b) Failed to take notice of the fact that previous allegations made were investigated and found to be unfounded. 
c) Wrongly concluded that she would regularly shout at staff and children and on occasions physically shake children without satisfactory evidence
d) Completely misunderstood what she was stating in relation to her health 
e) Unreasonably relied on Child Protection investigations in 1994 and 1999 and not taking sufficient notice of the fact that she continued to be registered by the previous registration Authority. 
f) In relation to behaviour, relied on a complaint by a former member of staff, which had been investigated by the police and no further action taken. 
g) Food and Drink- again relied on inconsistent evidence to come to the conclusion that she was not providing sufficient food and drink
h) Generally accepted evidence by a former member of staff against her evidence when it was clear that the former member of staff had a disagreement with her prior to the making of the allegations and failing to take that into account when dealing with that evidence of the former member of staff
i) Failed to take into account the fact that induction days were used to allow children to have a better transition into the nursery school.
j) Through the Objections Panel failed to accept that she was attempting to agree a way forward with Ofsted the opportunity of which she had not been given previously and was not, at the Objections Panel meeting, accepting that the allegations made in the Notice of Intention to cancel registration were true.”

CONCLUSIONS

101.	In view of Miss Quigley’s denials and the concessions she made during the hearing, we have set out the facts above in some detail from the relevant contemporaneous records.   In drawing our conclusions we have examined very carefully the areas of concern raised over the period of her operation, and the grounds given by the Respondent as cause for cancellation of her registration.   We have not only taken full account of the formal concessions Miss Quigley made, but we have also considered the matters that emerged in the course of a lengthy hearing, during which we were able to observe Miss Quigley’s conduct and presentation both in and out of the witness stand.   

102.	Miss Quigley disputed the evidence of each one of the Respondent’s witnesses about these events and continued to do so during the hearing in a variety of ways.  In particular, she challenged the accounts of a total of 10 professional witnesses, most of whom now work for the Respondent, of whom two had also worked for Westminster as Day Care Advisers, and all of whom are experienced in this field, either in inspection or in child protection or both.   Despite the criticisms that can be made of some of these witnesses, to which we shall return later, the detail and range of their evidence was compelling and largely consistent.   We found no reason to doubt their accounts.
 
103.	Miss Quigley also sought to challenge the veracity, credibility and professional competence of a total of 9 members of staff who were willing to give critical evidence about her conduct and her management of the Nursery.  These included Mrs Lawrence (nee Jackson), Ms Scott, Ms Polak-Widlak, and Ms Malek-Huff.    However, Ms Scott in particular had no reason to make a complaint and her concerns were similar to those of others with whom she did not work and did not know.   Ms Malek-Huff displayed no inconsistencies in her evidence and we found her an entirely credible witness.   We found implausible Miss Quigley’s attempts to discredit this witness by accusing her of excessive use of the naughty chair, flaring up with the children and attempting to blackmail her.  In fact Miss Quigley had written to her only 20 days before the incident asking her to continue working at the nursery for the next year.     In her second statement Miss Quigley also claims that she asked Ms Malek-Huff to assist in writing the policies for the nursery.  This inconsistent picture from Miss Quigley of Ms Malek-Huff is not supported by any contemporaneous record.

104.	Miss Quigley sought to make much of the fact that many of those who had made allegations at various times were motivated, for example, by disagreements they had had with her, or by money issues.   But she produced no credible evidence to refute any of these allegations and her explanations as to the motivation of those making them were most unsatisfactory.   We can find no ulterior motive for Ms Lawrence, Ms Polak-Widlak nor Ms Scott attending to give evidence at this tribunal.  The oral evidence of Ms Scott was particularly compelling and was given by a plainly honest witness.  Her reaction to Miss Quigley’s attempts to denigrate her teaching performance was very telling.  This was a recent criticism by Miss Quigley, which was completely at odds with the contemporaneous evidence.   Ms Malek-Huff and Ms Scott both told the relevant professionals at the outset of their separate allegations the reasons for their departures from the nursery in 1999 and 2003 respectively.  There was no advantage for Ms Malek-Huff in attending the Tribunal both in July, when it proved not possible to call her, and again in November.  She, like several other members of staff who reported concerns, had indeed had disagreements with Miss Quigley about money.  However, her evidence on the fact that Miss Quigley had sought to change her pay arrangements after Christmas is entirely supported by Miss Quigley’s own letter of 20 November 2002.   We do not find that the circumstances of the departure of any of these witnesses detracted from the veracity of their evidence.

105.	Ms Swan’s ill health prevented her from giving oral evidence at this hearing, so her statement was not tested in cross examination, but it lent support to the evidence of these staff and, like theirs, was similar to that given contemporaneously.  Their evidence was also supported by those who gave statements either at the time, or during the period of Ofsted’s final investigation, including Ms Hall, Ms [Kopczyk], Ms Ribiero, and Ms Clifton.   It was also supported by Ms Irons, who we note was described by Miss Quigley as a truthful person.   

106.	The one person who could have substantiated the Applicant’s claims about Ms Malek-Huff was Ms Clifton, who had every incentive to assist Miss Quigley since she was expecting to return to work for her whenever the Nursery re-opened.  However, her written evidence contradicted Miss Quigley’s claims about Ms Malek-Huff’s excessive use of the naughty chair, and confirmed Ms Polak-Widlak’s account of her being shouted at by Miss Quigley.  She did not provide Miss Quigley with a witness statement, nor did she appear as a witness to corroborate her account.   

107.	Furthermore, Miss Quigley provided no plausible explanation for why so many former members of staff should all separately make such strikingly similar allegations.  Indeed, she formally conceded that she could not identify a motive for all the staff to have fabricated allegations against her, and, where she claimed that witnesses had been “persuaded” to make up their evidence, she could not suggest anyone who might have so persuaded them.

108.	As far as the evidence of the investigating professionals is concerned, we had a number of concerns as set out below, but we do not find that this undermines the core of their evidence to the extent that we should reject it either partially or wholly.   
•	The evidence of the various inspectors, including Ms Corr, Ms Lloyd and Ms Tyler, showed that they had failed to check or verify various assertions and inconsistencies in the allegations made or, in the case of Ms Lloyd, question Miss Quigley more closely.   They were, however, overall, credible witnesses.   
•	The investigations carried out by DC Greenwood in 1994 and 2003 were flawed in a number of respects.   She never visited the nursery, obtained no first hand evidence, said she did not speak to the parents of S (although the referral sheet disclosed late in the hearing showed she had made a home visit on 8th August 2003), did not challenge discrepant statements, did not return to check matters with anyone else following her interview with Miss Quigley, failed to speak to Ms Malek-Huff’s previous employer, and did not verify what Miss Quigley had told her, and only spoke to 5 out of a possible 14 parents, having failed to trace many due to errors in contact details obtained from Ofsted rather than directly from, or checked with, Miss Quigley.   However, this and the lack of action between strategy meetings are examples of poor practice, rather than a reason to doubt her credibility as a witness.
•	Ms Corr failed to check with Westminster whether Miss Quigley had indeed been given oral permission to care for children under 2 years of age.   Ms Lloyd failed to ask Miss Quigley about staffing on Fridays and did not question her about whether parents of children under 2 were present with them or whether such children stayed for a full session.   Ms Tyler failed to take steps to verify the assertions in Ms S’s 1994 letter or follow up on any inconsistencies in it, or ask staff about them.   Nor did she comment on, or follow up, the letter from Ms Zahedi and could not recall any follow up being undertaken in relation to the incident reported by Mrs Lawrence.   However, none of these failings, in our view, undermined the overall credibility of these witnesses.

109.	We did not regard the majority of Miss Quigley’s witnesses as particularly helpful with regard to the judgments we had to make about the core issues in this appeal.   She relied on the evidence of two former members of staff, Ms Mansi and Ms Merabet, several parents and other individuals with some connection to the nursery.  Neither Ms Mansi nor Ms Merabet gave evidence that undermined the weight and cogency of that given by the other staff and, to some extent, lent some support to elements of it.   Other witnesses made very brief positive observations about the environment of Kinderland or confirmed their positive view of Miss Quigley, but most of the statements were extremely brief and lacked any relevant detail and their involvement can only be described as largely peripheral.     

110.	Several parents said they were happy with Kinderland and had had a good relationship with Miss Quigley, whom they clearly trusted.   We have no doubt that many were entirely satisfied with the care given to their children and were entirely unaware of any concerns until 2003.  But in the particular environment of this Nursery we believe it would have been difficult to be certain what was really happening and parents were clearly not present for long enough to find out.  To suggest that because nothing untoward was reported, or demonstrated by the physical and verbal evidence of such very young children that this proves the negative is to overlook the complexities of children’s behaviour and reactions.  

111.	Of the two parents who gave oral evidence, Ms H and Ms K, neither of them persuaded us that they were in any position to know or to judge the situation accurately.   Ms H said she herself used the thinking chair method at home and that, as discerning, intelligent people, she was certain parents would have known things were wrong.   Ms K, parent of S, the child who was the subject of the 2003 child protection investigation, conceded she had not been directly involved and it had been the nanny who had accompanied her daughter into the nursery.   She stated that there had been no report of any concerns from either the nanny or her daughter.   It should also be noted that both parents were away at the time of the incident and therefore were not in a position to judge the child’s demeanour on her return from Kindlerland in any event.

112.	However, there was one parent who had concerns, Mr A, whose 3 children attended Kinderland, and who now lives abroad.   He gave a police statement in 2003 and provided a statement for the Respondent in this appeal.   We can find no reason why he should do so, other than by reason of his desire to assist in response to an investigation, and, whilst he did not give oral evidence, nevertheless his written evidence lent further weight to that of staff and professionals.   We also note that Miss Quigley attempted to undermine this, as she did in respect of other witnesses, by criticising the parenting of his daughters.

113.	We did not find Miss Quigley to be a credible witness at all and were particularly struck by her presentation in giving evidence.   She did not appear to us to be capable of recognising or telling the truth:  indeed she prevaricated, and was evasive and inconsistent in her responses throughout.   She sought to defend herself by introducing in oral evidence new issues that had not appeared in any of the written evidence, whether in her own statements or her grounds of appeal or those of her witnesses.   At no stage did Miss Quigley provide originals of those records that she did submit and she also attempted to introduce new written material to support her contentions.  For example, she claimed in oral evidence that she recorded staff absences in her diary, a document she had not hitherto referred to, and therefore she would have known what staff she needed and how much to pay them.   She also sought either to change her account of, or her explanation for, a number of the events described by the Respondent’s witnesses. For example, she made different claims about numbers and ratios:
•	In her written evidence, she stated WCC staff had given her oral permission to have more children attending than she was registered for,
•	in her oral evidence she claimed she had also been given permission to have a different ratio of staff to children, and by had been given oral permission to have children under 2, neither of which she had raised in any previous document.   
We also observed her discomfiture when her witness Ms K was giving evidence to the effect that her daughter, child S2, had started attending Kinderland when less than 2 years old:  she made a clear attempt, with some brief success, to influence the witness’ answer in this respect.  

114.	It is also noteworthy that Miss Quigley offered no challenge to the central issues before the Objections Panel in 2004, and merely made suggestions about the conditions that might apply to the reopening of Kinderland.     

115.	The main elements of the original grounds for cancellation of Miss Quigley’s registration, as set out in the Respondent’s Notice of Intention, were her unsuitability to look after children under the age of 8 (s.79B(4)(a), and her non-compliance with Regulations under the Act (s.79B(4)(d) and with a condition on her registration (s.79F (6) respectively. For the reasons set out in this decision in relation to Miss Quigley’s concessions and her belated attempt to withdraw this appeal, our findings are more detailed and extensive than those we were invited to make in support of these elements.  

116.	Failure to ensure appropriate police or CRB checks were carried out
116.1	Judging by Miss Quigley’s own responses to pre-inspection questionnaires, and from the evidence of witnesses who had been employed at Kinderland, she paid little heed to her responsibility to ensure all staff had been checked.   Ms Scott said she had obtained her own.   Neither Ms Swan nor Ms Polak-Widlak had any and both Ms Malek-Huff and Ms Mansi confirmed to us that they had started work without such checks.   Without proper records it is also not clear whether other staff employed at various times either permanently or temporarily had been checked, but it is clear that Miss Quigley knew of Ms Cheviot’s conviction for fraud.   
116.2	Miss Quigley formally conceded the way CRB checks were handled by her in 2003 was wrong and that it was wrong to permit Ms Malek-Huff to start work before her CRB check had been completed.  She also told us she accepted that not knowing if staff had criminal convictions might expose children to risk.
116.3	We find that Miss Quigley failed to ensure appropriate CRB checks were carried out in respect of new members of staff and allowed staff to work with children without such checks in breach of National Standard 1 and the Regulations, and that, in consequence, she placed children at risk of harm.

117.	Failure to appoint suitably experienced, skilled and qualified staff or to ensure training and qualification requirements were met
117.1	Miss Quigley demonstrably failed to ensure on a number of occasions that any, or adequate, induction training was in place or written down and told us that it had only been verbal.   This was confirmed by several former staff, including Ms Mansi, and some of them said they had not been shown what to do.   Many of the staff were young, inexperienced, or unqualified and some were all three, many did not have English as a first language and all were part time.   The recruitment procedure was unclear and unfocused, with the majority of staff not recruited through any formal, reliable process and few records relating to references. 
117.2	Despite this, the evidence of Miss Quigley providing proper training for any staff was patchy to say the least and her attitude on a number of occasions with regard to appropriate qualifications showed a marked lack of understanding about the needs of young children.   We are also concerned that there was no verified evidence of staff attending child protection training, and several said they had received no other relevant training or supervision at all. We are also concerned that Miss Quigley’s use of the term ‘Montessori’ held out to parents the promise of quality education that, on closer examination, was not entirely justified since the majority of staff had not been formally trained in these methods.   
117.3	Miss Quigley herself accepted that she still needed training, as she had conceded at the Objection Panel on 4 February 2004.   However, even by the time of this hearing she had not yet organised and identified a specific course to attend, claiming to us that she could not afford to do so.   
117.4	Miss Quigley’s breaches of National Standard 1 in these respects are clear.

118.	Failure to comply with all her conditions of registration
118.1	We are in no doubt that Miss Quigley, as the registered provider, was fully aware that the conditions of her registration did not permit her to care for children under the age of two years old. She had been so advised by Ofsted, during various inspection visits, and it was clearly stated as a condition of her registration.   Although Ofsted considers an induction process to be appropriate for children who are about to start at a day care provision, its proviso that such children would need to be accompanied by a parent or guardian at all times until the child is two years old is a matter of accepted good child care practice. Miss Quigley was also well aware of this.   
118.2	Miss Quigley tried to argue that she had been encouraged to have such an induction process, but that children under 2 had only attended for a very short time.   We were told that the inspectors at the transitional inspection in 2002 were not looking for the ages of the children, although they stated at the time that there were no children under 2 present at the nursery.   However, as they were unable to examine the registers or any other completed records because they were allegedly at Miss Quigley’s home, this assertion cannot be considered at all reliable.
118.3	Our own independent examination of the registers on which Miss Quigley placed such reliance showed that child MC, born on 11th January 1999, was on the Kinderland register at the age of 20 months in September 2000 and, whilst still under 2, attended the nursery for half a day on 1st, 8th, 15th, 22nd, 29th November, and all day on 5th, 6th and 8th December 2000.   We also note that on 2nd July 2003 child S2, the subject of child protection allegations, was then aged less than 2 and was in attendance all day on 7th July 2003 when the inspectors visited.   It is not possible to state how old the other child also the subject of investigation, ER, was on 7th July 2003 as we have no ascertainable dates of birth for her.
118.4	We regard Miss Quigley’s contention that she was given an oral concession to have children under 2 as most implausible and, in view of her general ability to tell the truth, simply a belated attempt to bolster her argument.   We find irrefutable the evidence that Miss Quigley had children under age of 2 in breach of her registration conditions.

119.	Failure to organise resources to meet children’s needs effectively 
119.1	The evidence of Miss Quigley’s unprofessional approach with both staff management and children’s needs, clearly demonstrated an inadequate understanding of the child care and child protection principles that underpin all work with children.   This is indicated by her failure to keep adequate records, to hold regular, planned and recorded, staff meetings, to organise and record induction and staff cover arrangements or to plan and implement staff training and development.  She herself accepted that if there were the kind of staff problems she alleged she had experienced with Ms Scott, it would be common practice to make notes of any meetings with that person, who would then sign them and that not to do so represented a serious management failure.
119.2	It is also demonstrated by Miss Quigley’s inconsistent approach to the recommended practice of having a key worker system:  she stated in 1998 she did not intend to develop this practice, and in February 2000 Ms Szyszkowski noted the keyworker system had stopped.   Miss Quigley had claimed she had been advised she did not need this system.   She told us that, although she accepted it was of benefit to parents, she had not liked this system of working, but had now changed her mind and would now implement it if allowed to re-open the nursery.
119.3	There is much positive comment in some inspection reports on the interaction between staff and children and the activities being undertaken.   In contrast, Miss Quigley alleged there was jealousy between the staff, but formally conceded that:
•	she had taken no steps to tackle this issue over a 12 year period
•	she needed a different system “with a hierarchy and departments”
119.4	Judging by her responses in pre-inspection questionnaires, Miss Quigley not only showed scant regard for registration requirements, but also for adequate staff cover in the event of absence. These responses also show a continual lack of awareness of adequate management, staff training and the requirements and purpose of registration and inspection.  We are particularly struck by her apparent belief that a persistent reference to the overriding need for ‘common sense’ would suffice as a response to legitimate questions designed to meet the needs of children or that recording staff attendance in her diary, a document she had not mentioned to anyone before now, or relying on information in chequebooks, was an adequate way of organising the information and resources so essential to good day care provision. 
119.5	We have no hesitation in finding Miss Quigley’s organisational capabilities completely inadequate, but also that there are indications her energies and operational methods were directed to ensuring she maintained control to her own benefit, rather than that of the children in her care.

120.	Failure to meet required child: staff ratios
120.1	Miss Quigley alleged in oral evidence that she had been given a concession by WCC staff to ignore staff ratios, but formally conceded she had failed to check that this remained acceptable to Ofsted.
120.2	Although Ms Scott said in her evidence that she was not left on her own with children, nevertheless it is noteworthy that she said she had hoped that, as a result of the incident with child J, social services would recommend the employment of more full time staff other than just Miss Quigley.  Other staff do say they were left on their own, however.   We see no reason to dispute Ms Polak-Widlak’s claim that she worked on her own in the morning until Miss Quigley arrived, and that, on the majority of Fridays, only herself and Miss Quigley were present for 20 children.   Ms Swan also said in her witness statement that she was left on her own at lunchtime with 15 or so children.
120.3	It is also clear that there were several occasions on which Miss Quigley exceeded the number permitted to stay all day:  at the inspection on 7th July 2003 there 8 children present, with insufficient staff then and in the previous two weeks.  We therefore find that Miss Quigley failed to maintain an appropriate staff to children ratio on a number of occasions, and repeatedly did so despite advice.   We do not accept that she was ever given a concession to breach this requirement and if she misinterpreted what she was told, she certainly did not take the opportunity of checking this important provision out with Ofsted.

121.	Failure to keep and maintain the necessary records or operational plan to comply with the requirements of the National Standards 
121.1	Regulation 7 and Schedule 3 of the 2003 Regulations require a registered person to keep certain records on the premises, or at some other location agreed by Ofsted, and to provide the Chief Inspector with copies of such of those records as he may from time to time request.   The duty to make these instantaneously available to an inspector without notice can be inferred from section 79U(3)(b)(i) of the 1989 Act, which empowers an inspector to inspect any records kept by the person providing day care. These cannot be inspected if they cannot be found or produced on the day of inspection, so a duty to produce them must be an implied requirement.
121.2	If there is no explanation for a registered person failing to produce records to an inspector visiting the premises, the inspector may be entitled to infer that the records do not exist or that they are not being kept on the premises. An inference that the records do not exist will be almost irresistible if the inspector asks for them to be produced after the visit and they are still not forthcoming
121.3	It is clear that, throughout the history of the nursery, whatever records were kept were not readily available to inspectors.   Miss Quigley told Ms Tyler in January 1997 that records were kept in a locked cupboard, but told Ms Cameron during an inspection on 30th April 1998 that she kept most documents at home.  In October 2002 at the time of the transitional inspection, records were again said to be kept in a locked cupboard and inspectors noted that Miss Quigley knew she had “to keep the register/accident/medication records for two years.”   On 7th July 2003, there were no details available for child E, the subject of child protection allegations because Miss Quigley said she had taken all relevant records home.
Miss Quigley told us that records were kept on a shelf.
121.4	Ms Swan stated she was unaware of any records, Ms Scott told us she lacked even basic information about children’s ages and there were no records of their attainment or development:  she had had the impression that Miss Quigley, who had eventually provided some, did not think these were important.   Ms Scott said she had never seen any other records.   
121.5	Of critical note is the fact that the directions given to Miss Quigley on 21st July were not followed in relation to the filing of clear evidence of staff rotas, children in attendance with their ages and the relevant times and dates, and the ratio of staff to children.   Several further opportunities were also afforded in the course of the resumed hearing to enable Miss Quigley to produce these.   But we finally concluded on day seven that Miss Quigley lacked the relevant data from which to compile these schedules and such data had either never existed in any proper form at all or was incomplete in any event and had been destroyed or lost. 
121.6	Such documents as Miss Quigley did attempt to supply during the course of the hearing were not what was being asked for, nor was there any effort made to cross reference them to any other document.  One of them was said to be a staff rota, but it did not show who were part time and who were full time staff, a matter crucial to the number of staff present on any one occasion and to staff ratios.   It was impossible to cross reference the information with their contracts of employment, or to any of the information they themselves supplied.   We were simply unable to establish who was there and when, a material issue in judging the adequacy of ratios.  We note Counsel was not asked to give an advice on evidence or been involved in the preparation or disclosure of documents, until a number of weeks after they had been exchanged.   Miss Quigley also stated that she had lost a number of registers and records in a taxi.
121.7	Miss Quigley placed reliance on the registers she did supply to us, but said she had not thought of compiling a list of the names of the children and ages, despite having been directed to produce a list, which would show which children were attending the nursery when they were there and what their dates of birth were. She even went so far as to claim at one stage that she did not recall this request being made, stating she only recalled being asked for a list of staff and being advised to write a list of specific incidents in 1994-99 and 2002 - 2003. She then said the register did not assist in establishing the ages of the children, which were contained in registration forms she no longer had.
121.8	Interviewed by police in 2003 Miss Quigley said she had kept records and asserted there had been few, if any accidents as the children were very well behaved. But we can find no evidence that a proper incident book was kept and Ms Scott said she had not been told what to do in the event of an accident.   We can also find no evidence that records were kept of children’s progress or staff meetings.
121.9	Miss Quigley formally conceded that:
•	her staff records were inadequate, and that she had failed to maintain a written record of the induction procedure for staff
•	It was wrong to have no written record of why the children were not being taken out of the Nursery
•	There was no written record of the alleged concession permitting the Applicant to have children under the age of 2 at the Nursery.
•	There was no written record of the alleged concession that the key worker system could be disapplied at the Nursery.
•	The Applicant did not always have completed record cards when the children started at the Nursery.
•	There was no register available for 2002-3
•	There was no record of the use of ‘thinking chair’
121.10	Members of staff also need to have access to policies and procedures that they must operate and to some records in respect of children if they are to carry out their duties appropriately.  Despite Miss Quigley’s contention that children were given water because they were allergic to milk, or that it was not acceptable to them for cultural reasons, Ms Scott told us there were no records kept on children’s allergies or medical needs, supported by Ms Swan’s statement that she too was not aware of any records on allergies.   Ms Polak-Widlak made similar points, although she did say she had been told verbally.
121.11	Miss Quigley conceded she had been advised as to the importance of maintaining written policies at the Nursery but it is clear from inspection reports alone that she consistently failed to provide such policies to the satisfaction of the inspectors.   We also note that Ms Swan said she was not aware of any, nor was she told how to report any concerns she might have.   At the transitional inspection Miss Quigley had not got a copy of the ACPC procedures nor had she got contact details in the event of an incident.  
121.12	There were numerous other examples of a lack of recorded information.  For example, several staff, including Ms Mansi, said they were unaware of children’s ages.   Although Ms Merabet, who worked there for 5 years, contended Miss Quigley kept files from which it was clear how old the children were, she nevertheless told us there were no records of staff appraisals nor was she asked to record children’s progress. 
121.13	Despite denying in oral evidence that she had ever been asked to produce an operational plan, it is clear that this request was made of Miss Quigley by inspectors and not complied with.   This requirement is clearly spelt out in the National Standards and in the accompanying guidance, copies of which Ms Szyszkowski had supplied to her prior to Ofsted taking over.   There was no suggestion by any parent or any member of staff that such a plan existed.
121.14	The evidence of a longstanding paucity, inadequacy or outright lack of records in this case is overwhelming.   It is one of the most worrying aspects of this appeal and we have no hesitation in finding that Miss Quigley failed to keep adequate records or produce, maintain and update an adequate plan, policies or procedures that were clear, reliable or available to parents and to staff.   
122.	Failure to notify Ofsted of changes of staff
122.1	Regulation 6(1) of, and paragraph 2(1)(a) and (b) of Schedule 2 to, the 2003 Regulations require the registered person to notify Ofsted of "a change of … (a) any person in charge [and] (b) anyone looking after children on the premises". A "person in charge" is, by virtue of regulation 3, "the individual appointed by the registered person as the person in charge of providing actual day care on the premises".   This duty was on Miss Quigley as “the person in charge".
122.2	The Regulations make no specific reference to a requirement to identify a deputy, but in circumstances where the registered provider is herself the subject of allegations in circumstances rendering it inappropriate for her to continue to manage the provision, there is a clear implication that an appropriate deputy should be identified.
122.3	Miss Quigley conceded she should have informed Ofsted about Ms Malek-Huff starting work at the Nursery.
122.4	Miss Quigley had, as noted above, failed to keep adequate staff records.   At no stage did she ever formally appoint a deputy, or notify the regulatory authorities that she had one.   Her inability to name such a person to take over her duties at the time of the allegations in 2003 is evidence of such failure in itself, but she also conceded in oral evidence that she needed to introduce a hierarchy in the nursery’s staffing structure.
122.5	We have no hesitation in finding that Miss Quigley not only failed to notify the Respondent when new members of staff came to work at the Nursery, but she also failed to appoint a named deputy or to make suitable contingency arrangements for any actual or potential absences by her, regardless of the circumstances.

123.	Failure to have a clear policy on the management of Behaviour and using disciplinary methods specifically disapproved of in guidance
123.1	There were a few inconsistencies between staff about what form of behaviour management was used, but the majority of them were agreed that a chair, variously called a ‘thinking chair’ or a ‘naughty chair’ was used, although it is not entirely clear how and for what periods it was used.   Ms Mansi saw it being used, but told us she had been given no information about its use. 
123.2	Miss Quigley did not deny using such a chair and, despite her claims to police, in oral evidence she actually supported Ms Polak-Widlak’s view that it was used two or three times a week.  Her own witness, the parent Ms K, told us she had never had anything in writing regarding any incidents and was not aware of the use of the thinking chair.
123.3	There is a consistency of evidence from staff and from parents about the existence of this chair, and from a number of these witnesses about its inappropriate use by Miss Quigley.  Miss Quigley, who was, at the very least, sent by Ms Szyszkowski, a copy of the guidance accompanying the National Standards, can have been in no doubt as to its implications regarding physical punishments and interventions in relation to National Standard 11.   This made it clear that physical punishments should not be used and that it was important all those involved in caring for children understood what constitutes a physical punishment, noting that “shaking can cause damage to the brain and is not to be used under any circumstances.”   This guidance suggested alternatives in the form of withdrawal, distraction and re-directing the child’s attention.   In the event that physical intervention was seen as appropriate, i.e. to prevent an accident or injury or damage arising from, for example, a temper tantrum, the advice was to intervene with minimum force and for minimum time.  The guidance went on to specify that any such incidents should be recorded in detail, including what form of restraint was used and any consequences and how the information should be shared with parents, noting what issues inspectors would look for. 
123.4	There is also a worrying similarity in the evidence from former staff about Miss Quigley’s general demeanour and behaviour towards them and to a number of children.   The descriptions of her shouting and mishandling certain children are spread over a number of years and are from a variety of unrelated sources.  A number of staff described Miss Quigley in similar ways:  Ms Scott described her as ‘a bit strange, more concerned with parents’, Ms Swan spoke of her ‘quick and vicious temper’, saying she was frightened of her, that children were scared and cringed away when spoke, she appeared to have no self-control, and Ms Swan regarded her as ‘unstable’ and not suitable to work with children.   Despite reservations about the clarity and consistency of Ms Polak-Widlak’s evidence, which may have had a good deal to do with her command of English, she described Miss Quigley as mainly concerned with dealing with administrative matters, getting angry if challenged about the running of the nursery, displaying significant mood changes, being calm one minute and irate the next, shouting at her and of children being afraid of her.   
123.5	Ms Lawrence’s contemporaneous description at age 18 of Miss Quigley’s behaviour towards staff suggested she was undermining, pressurising and controlling. It is noteworthy that many of the staff were young, either inexperienced and/or unqualified and/or for whom English was not their first language and were undoubtedly in large part controlled by Miss Quigley.  It therefore all the more to their credit, and to their credibility, that they raised the concerns that they did at the time.   
123.6	We are in no doubt that, at the very least, Miss Quigley did not treat some children appropriately, consistently, in accordance with best child care practice or in their best interests at all times.   However, we are also convinced by the overwhelming weight and similarity of evidence from a wide variety of credible witnesses whose accounts span a long period of time that Miss Quigley’s behaviour towards them was harmful to them.   Despite some minor discrepancies in accounts, there is a remarkable consistency in the descriptions by staff and others of Miss Quigley’s physical handling of children and her shouting to leave us in no doubt that the allegations are, in large part and extent, true.
123.7	We are in no doubt that Miss Quigley made use of a ‘naughty’ or ‘thinking’ chair as a form of discipline to control the children at the nursery and that this was not recorded or notified to parents, only a few of whom seemed to be aware of its existence.   Miss Quigley herself conceded in oral evidence that it was wrong to have no written policy as to its use, but she did not appear to have any insight into its implications, despite assurances that she would not now have such a method.     
123.8	We are satisfied that there is ample evidence Miss Quigley 
•	Regularly shouted at children and at staff in the presence of children
•	Failed to produce an adequate behaviour policy or keep adequate records 
•	Failed to understand that the use of such methods of restraint and/or discipline are unacceptable in relation to very young children and constitute poor practice and a breach of the guidance
124.	Failure to have an open partnership with parents 
124.1	The issue of free access by parents to the nursery in which they choose to place their child is critically important.   To restrict such access or seek to control it suggests that there is something to hide.  We are persuaded that Miss Quigley, whose central control over all matters was noted by a number of professionals over the years, was keen to discourage parents from entering the premises at will.   At best this was because she simply did not want any disruption to a routine that suited her, at worst it may have been, as one member of staff put it, to prevent awkward questions.   Whilst it may be acceptable to place restrictions on the employment of staff by parents outside the nursery, it raises inevitable suspicions about possible motives when, as several staff alleged, there is a stricture on not communicating with parents.   The evidence of this control is found in the evidence of, for example, Ms Scott, who said they did not come in, were usually met by Miss Quigley and staff were told not to talk to them and she herself had never seen parents or prepared notes for them.   Ms Swan’s written evidence states, notably, that after two years there she did not know which child belonged to which parent.
125.	Failure to meet children’s individual needs 
125.1	Over the years Miss Quigley made various claims about access to outside play space, but staff, including Ms Scott, Ms Swan and Ms Polak-Widlak were clear they never left the premises.   Miss Quigley, despite her earlier assurances over the years, in oral evidence never attempted to deny this, or the absence of any reference to it in her documentation, and sought to justify this failure by various references to the cultural issues, global risks and parental preferences, claiming parents knew there was no such outside activity.   She therefore lied to the inspectors at the transitional inspection, who failed to check this information.
125.2	Given that previous inspectors had noted a lack of physical equipment and Ofsted’s own report in compliance with the national education inspection regime    had recommended improvements, we find it difficult to understand why no-one attempted to challenge Miss Quigley further on this point.
125.3	Most importantly, there were worrying indications about the level and adequacy of food and drink for children.   We note that they were supplied with fruit and milk or water in the early years of the nursery, nevertheless it is clear from the evidence of a number of unrelated witnesses that, in the latter years, this had become biscuits and water.  Ms Scott, Ms Swan and Ms Polak-Widlak all alleged children were given a small amount of water and, at most, a single biscuit. There were also allegations that children were denied access to water at other times, despite Miss Quigley’s assurances to the contrary at the transitional inspection.   She herself demonstrated in oral evidence a lack of understanding about the importance of this issue, making a formal concession that there may have been times when she was unaware that a child was thirsty.   This concession in itself is cause for considerable concern.   
126.	The adequacy of the physical environment 
126.1	Evidence from staff, supported to some extent by inspectors, suggests that at times in the past the nursery floor was cold and dirty, as were the mats, toilets were dusty, toys were not washed, hot water was not always available and staff shared the same toilets as the children.   Both Ms Scott and Ms Swan stated that staff cleaned the premises and both they, and Ms Polak-Widlak, suggested that the windows were either not opened, or could not be opened at all.   
126.2	The transitional inspection stated that the standard of hygiene was good, but there had been concerns in the past.   It is possible that hygiene had improved in recent years, and there was certainly no evidence of concerns being expressed by 2003. However, these were basement premises attended by up to 26 children, some of whom stayed all day and such inconsistency indicates Miss Quigley did not always pursue or maintain adequate standards. 

127.	Miss Quigley’s health
127.1	We were particularly concerned about the implications of the various assertions about Miss Quigley’s state of health.   The contemporaneous records of her own claims about her health show inconsistencies and contradictions and are not supported in any way by the reports from her GP, which she then sought to use as evidence to contradict any suggestion of ill-health.   These included:
•	telling Ms Lloyd and her colleague on 7th July 2003, in tears, that she would be having major hospital surgery on 25th July, telling Ms Knight on 14th July she was ‘going for treatment’ that day, and telling Ms Dugdale she would be having an operation for a tumour.
•	claiming on 13th October 2003 that she suffered from a pre-existing medical complaint, which she described as "blood behind the eyes", which she said prevented her from shaking a child
•	objecting to questions about the tumour operation on the basis of confidentiality 
•	explaining to inspectors on 3rd November 2003 that she had had very painful gums on 7th July 2003, and, as a result of her state of shock and upset about the child protection allegation, she had therefore “blurted out” to the inspectors as they were leaving that she was having an operation. 
•	subsequently denying to Ms Corr and Ms Dugdale on 12th November 2003 that she had said anything about any treatment 
•	stating she had had an operation cancelled
•	failing to provide a completed health declaration form in 2003, despite her earlier undertaking to inspectors to do, later telling Ms Corr that she would not be completing it at least until her return from a forthcoming trip to Ireland, and her subsequent failure to provide any such completed form to Ofsted to date. 
127.2	It is noteworthy that Miss Quigley’s attempts to raise health issues occurred in response to inspections and/or allegations.  But we find it surprising that she chose not to make any mention of the eye condition when questioned by police about the shaking incident.  Miss Quigley also sought, when giving evidence, to deny making any such statements about her health.   The oral and written evidence of, amongst others, credible witnesses such as Ms Corr, Ms Lloyd, Ms Knight and Ms Dugdale, confirm the considerable discrepancies in Miss Quigley’s accounts, and we can see no reason why they should seek to make up such evidence either at the time or now.  There are no reasons whatsoever for disbelieving their accounts.  Indeed, Miss Quigley made a formal concession that she had ‘lied’, to the Respondent, (which she later altered to ‘misled’), in saying she had had an operation cancelled.   In summary, we find that Miss Quigley lied repeatedly about a fictitious operation for a tumour when none was ever scheduled or required and we are satisfied that this evidence validates Ofsted’s concerns about Miss Quigley’s health, as well as her general ability to tell the truth and goes directly to the issue of her suitability to be a day care provider.  
128.	Inspection and regulation 
128.1	Miss Quigley’s attitude to regulation was demonstrated repeatedly and overtly in her dealings with DCAs and inspectors over the years.   It can also be inferred from her record keeping, and indications from some witnesses that staff were either briefed on what to say to the inspectors, or had no opportunity to speak to them.   
128.2	In her two formal responses to Miss Quigley’s 2000 and 2001 complaints against her, Ms Szyszkowski said her visits had been hampered by Miss Quigley’s lengthy allegations about the work of past DCAs.   Looking back over the nursery’s annual inspection reports, the same issues had recurred with little progress on any basic systems since 1992, with little attempt to accept advice or comply with requests for further documentation or information, including basic information such as new staff details.  Ms Szyszkowski noted Miss Quigley’s “continual refusal to meet standards and her strategies of delay, complaint and non-compliance appear to me to have enabled her to evade much needed change…I have made every attempt to work in a professional and proactive manner to bridge past difficulties and create a trusting environment in which [Miss Quigley] would feel able to develop nursery practice.   I have met with intransigence and conduct which has, at times, been both offensive and intimidating. ”   She asserted Miss Quigley had made communication very difficult by virtue of her emotional and often confrontational conduct, including defamatory and accusatory comments about colleagues.
128.3	We also chose to set out the facts largely in chronological order because we believe the history shows a cumulative series of similar incidents and concerns, punctuated by regular denials by Miss Quigley and attempts to thwart the efforts of inspectors to regulate her provision appropriately.   Sadly, the cumulative effect of the repetitive narrative of facts shows how successful she was in so doing and for such a long period, undoubtedly assisted by flaws in the system that she was able to exploit.   We are very concerned about this aspect of the case and about some aspects of the decision-making by Westminster in particular and by Ofsted in the early stages of its responsibilities for Kinderland.   To agree to extend the terms of registration of a provider with this history, and in the circumstances in which Westminster did, we find surprising.   
128.4	We were told the culture of Westminster’s Day Care Regulation and Inspection service was to encourage and support provision, rather than to seek to close it down, no doubt in a laudable attempt to bolster a limited range of providers.   However, the transitional inspection and its immediate aftermath was an opportunity for Westminster to input all of its concerns about Kinderland and for Ofsted to carry out a comprehensive review or at least to monitor it very closely with a view to de-registration if necessary in view of the history.   
128.5	We were told that no prior information, which would have included the concerns and recommendations from previous reports, were available to those carrying out the transitional inspection.   Specifically, Ms Moore had little or no knowledge of the previous decade and had used a ‘clean sheet’ approach in accepting Miss Quigley’s information and assurances at face value.  This was confirmed to us by Ms Dugdale, Ms Moore’s senior.  We were told such inspections were designed to be ‘light touch’, the reason for this being, it was said, that the primary purpose was to confirm compliance with the 2001 National Standards.    But the contention that Ms Moore knew nothing of the history seems particularly odd since Ms McLean, the Westminster DCA who had carried out a number of inspections of Kinderland before, accompanied Ms Moore on this inspection, and we find it difficult to accept there was no transfer of information at all.   
128.6	Even if the transitional inspection was not intended to have been as thorough as other types of inspection, we are still concerned that the inspectors involved seemed to accept Miss Quigley’s assertions at face value, without independently checking facts.   In one pre-inspection questionnaire she alleged staff meetings were held on Wednesday afternoons.   As no-one worked then, the inspectors should have queried this, as they should have done in the case of her claims that they were all trained first aiders, and would all be kept informed at regular meetings of changes in the law and the assurance that she kept records of children’s progress and the activities planned for them.
128.7	Whether or not the DCAs ever considered de-registration at any stage before Ofsted took over is irrelevant.   The fact is, they took no such action.   It was also accepted by the Respondent that no steps had been taken by Ofsted after the transitional inspection to impose conditions on Miss Quigley or to set actions and tasks to be completed within set times.   What is very clear to us is that that the prevailing culture in Westminster with regard to its day care responsibilities, together with the ‘light touch’ approach taken in transitional inspections, led to a lack of close inspection and cross checking of what Miss Quigley told inspectors.   To the extent that Miss Quigley lied about various matters, this shows she abused the trust placed in her.   But the transitional inspection was, in itself, another lost opportunity.    In the context of the long history and range of previous concerns this was, at the very least, simply unacceptable, and, at worst, failed to protect children.  
128.8	Regardless of whether those carrying out the transitional inspection were apparently aware or not of the previous history and treated the situation as afresh, Miss Quigley had a second opportunity to put right what she had failed to do in the first place, and she did not take it.   She also failed to address the very issues she sought to persuade the Objection Panel in 2004 were relevant to continuation of her registration, namely by attending suitable training courses.   She had a further, and final, opportunity to address relevant changes in the course of this tribunal hearing, but either did not do so, or did not persuade us that she was either aware of what was necessary or was prepared to address any of the considerable changes she would have to make to the running of the nursery to justify allowing her to continue running any day care provision.
128.9	There were opportunities to address the issues presented by Miss Quigley’s evident failures.   Each time a regulatory authority failed to persuade Miss Quigley to comply with, or to enforce, the legal requirements of registration and to pursue the good practice aims of the guidance, represented another reason to exert its powers, and the accumulation of these with each year reinforced the justification for so doing.   But the nettle was not grasped until very recently, allowing Miss Quigley to run the nursery for 13 years without any adverse consequences.     

129.	We agree that the range of issues raised in this case is wide and troubling.  We conclude that the above matters alone constituted sufficient reasons to cancel Miss Quigley’s registration and for us to dismiss this appeal.   However, we consider it most important that we also give the fullest possible consideration to the issues of child protection raised by this case.

130.	Child Protection 
130.1	We believe Miss Quigley’s suitability as a day care provider was further and most critically undermined by the serious nature of the allegations made against her in relation to her approach to, and handling of, the children in her care.  That this did not lead to her de-registration until 2003 is a matter of some concern to us:  it would seem that the burden of proof was, as the court highlighted in the recent case of Jones v NCSC [2004] referred to above, exercised in Miss Quigley’s favour, rather than in the interests of public policy and the protection of children. 
130.2	As observed in paragraph 108 above, the investigations in 1994 and 2003 were undoubtedly flawed.   DC Greenwood conceded she had never visited the nursery in 2003 and accepted everything she was told first hand, without speaking to the parents of child S or cross checking Miss Quigley’s assertions to her.   She had not pursued lines of enquiry in full, including chasing up names and addresses, had not challenged discrepant statements, and could not remember why she had not asked the father of child A why he had not removed his children from the Kinderland.  However, her credibility as a witness was not so damaged by these concessions as to make her account of what she had been told at the time unacceptable.  To the extent that she corroborates other witnesses, we find her a credible witness. 
130.3	Mrs Lawrence’s oral evidence relating to the earlier years confirmed that Miss Quigley had shouted at her in front of the children, and had used the so-called naughty chair.   Her description included Miss Quigley picking up children by their shoulders with their arms close to their sides, so their feet were off the floor, upsetting them and making them cry when she did this, with her face close to them and shouting, with the result that the children showed fear and, in her words, ‘froze’.   She was able to recall seeing individual named children, including a child called M shaken as well as others whose names she did not recall.   Her credibility was not in doubt.
130.4	Ms Scott had no reason to make a complaint and her concerns were similar to those of others with whom she did not work and did not know.   We found her a particularly credible witness who, in oral evidence, was able to recall details of the incident with child J, and confirmed seeing Miss Quigley grabbing children by their shoulders and shaking them, and occasionally slapping their hands down by their sides.  She also was able to name specific children, including AR, CH, SM and MX.   We found her a particularly impressive witness, able quite fairly to recall that she had initially told Miss Quigley she would not take matters any further, but that she had changed her mind because Miss Quigley had failed to acknowledge that she had done anything wrong.   We see no reason to doubt her explanation that she had acted because, although she did not feel Miss Quigley was a danger to children, nevertheless a number of concerns had led her to think that Mss Quigley’s behaviour could lead to an accident and escalate to something dangerous. 
130.5	Ms Scott’s reported concerns about Miss Quigley’s physical handling of children were supported by Ms Hall, who had left two weeks previously, apparently, according to Ms Scott, ‘fed up with all the shouting’  and included:
•	frequently shouting and yelling at them to sit down, 
•	taking hold of children by their arms and marching them to a chair
•	on several occasions grabbing children by their clothes or by their shoulders, facing child and taking clothing at about shoulder chest height, shouting, shaking by pulling roughly towards and moving back and forth, roughly holding children’s hands down by sides, citing child AT, MT, SM, MX, CH, RA.
130.6	These allegations were also substantiated by the similarity of Ms Swan’s statement, in which she described Miss Quigley’s manhandling of children, alleging children were frightened if they misbehaved.   Ms Swan variously describes Miss Quigley as physically getting hold of children, using a loud and angry voice and shouting until she was red in the face, and visibly shaking them with her face close to them.  Ms Swan recalled child T being grabbed by the arm, dragged and pushed onto a chair and Miss Quigley grabbing a child who trod on her by accident, which appears to support the allegation in respect of child E.   Ms Polak-Widlak recalled Miss Quigley taking children by their shoulders and making them stand or sit where she wanted them to be.
130.7	Ms Mansi’s 2003 police statement had described Miss Quigley holding a child by one arm and shaking her, other than to say she had always found Miss Quigley to be calm and she would “not go shouting for no reason.”   In her oral evidence on Miss Quigley’s behalf she sought to explain and modify her earlier statement, by saying that the word ‘shake’ in her language did not mean anything aggressive, but she clearly described taking a child by the shoulders. 
130.8	Despite her denials that she had ever treated children in this way, Miss Quigley did not give us the impression that she understood, or cared about children or their protection.  At no stage did she demonstrate any knowledge or understanding of the importance of child protection, she notably failed to produce any appropriate response to questions about what were the proper steps to be taken following any allegations, nor did she express any concern about any child who might have been the subject of such treatment.   Notably, her evidence on how she would handle a situation where a member of staff was accused of hurting a child was most unsatisfactory. 
130.9	We support the Respondent’s submission that it is against the history of virtually identical allegations of shaking, roughly handling, shouting and controlling children by the use of the naughty/thinking chair, that Ms Malek-Huff’s allegation in 2003 must be viewed.   No effective challenge was made to her central allegation about the way Miss Quigley treated child S2 on 2nd July 2003.  Ms Malek-Huff’s view was unobstructed and this is similar behaviour to that previously reported earlier  by Ms Lawrence, Ms Irons, Ms Scott, Ms Hall and Ms Swan.   We have therefore concluded that there is sufficient evidence to make a finding that:
•	On July 2nd 2003 Miss Quigley shook child S2 at the nursery
•	Miss Quigley regularly handled children roughly at the nursery

131.	But we are concerned to note that despite the earlier concerns, nothing effective was done to monitor Miss Quigley’s child care practice more closely.   We note, sadly, that the decision to review this following the second set of allegations in 1999 was never implemented.   It is of particular concern that records for this set of allegations are inadequate.   It seems clear that the prevailing culture in Westminster was not to de-register a day care facility unless child protection concerns were proven and sufficiently serious – we were told no such action had ever been taken.

132.	This allowed Miss Quigley to take advantage of this situation to continue to run a nursery that must have been characterised by a singularly frightening, threatening and unpredictable atmosphere for both children and staff.   This was not only harmful to the individual children in receipt of such treatment, but also harmful to the welfare and development of all the children who attended.

133.	These were serious allegations to make against any day care provider, particularly against one caring for children so young and, in some cases, under the age of 2.   Ofsted was correct in its expression of serious concerns about Miss Quigley’s suitability given the separate but identical nature of the allegations of physical abuse of children and their general care between 1994 and 1999 and her significant lack of awareness of child protection issues demonstrated during the child protection investigation in 2003.   

134.	As Mr Jamal expressed it in his statement:  “the existence of separate allegations, across time, of a similar nature without reason to suggest collusion between those making the allegations, lent credibility to the accounts.   Whilst there was no evidence that any child had been significantly harmed by Miss Quigley, the behaviour described risked harmful impact on a child’s physical and emotional well being.   The continuance of the behaviour, despite previous attempts to address them over the years, and Miss Quigley’s response to the allegations during the investigation, which was considered to be unhelpful and non-cooperative, raised a significant concern that children would continue to be exposed to similar experiences and, therefore, risks were she to continue to run the nursery.   In addition, it was the view of Social Services that the use of a ‘thinking chair’ was an inappropriate and potentially humiliating disciplinary tool to use on children.”

135.	The fundamental elements of effective child protection are centred on risk assessment and risk management, and it is undoubtedly the case that a lack of acknowledgement of the possibility of abuse, neglect or the necessity to investigate concerns fully adds to the risk factor.   Miss Quigley’s responses underline the concerns and add weight to the gravity of the allegations made separately, repeatedly and over a period of time.   The allegations were all of a similar nature and without any realistic possibility of collusion.   They were also made in the context of an imbalance of power relationships between the adults making them, who were themselves quite young and/or vulnerable and lacking in knowledge and experience, and were made in respect of very young children.

136.	The overriding purpose of the legislation is to protect children, whose potential vulnerability to mistreatment by adults is particularly acute when they are entrusted to the care of providers for long periods of time without any supervision by any outside, independent adults.   It is all too apparent to us that Miss Quigley was allowed, by virtue of a combination of factors, to continue running, at the very least, unacceptable nursery provision and an environment in which children were at risk of harm.   We do not make this observation with the luxury of hindsight, but rather with the awareness that, all too often, the circumstances of such provision can give rise to a jigsaw of information that is available if only the right questions are asked and the connections made.  Effectively, Miss Quigley was able to take advantage of this situation to continue to run a nursery that must have been characterised by a singularly frightening, threatening and unpredictable atmosphere for both children and staff.   This was not only harmful to the individual children in receipt of such treatment, but also harmful to the welfare and development of all the children who attended.

137.	General case management and disclosure
137.1	As Miss Freeborn said, there is clearly a balance to be struck between disclosing what is necessary and relevant and not overloading a hearing with a disproportionate amount of unnecessary material.   It is important that cases are prepared and presented in a way that addresses the central issues efficiently and effectively so as to secure the right outcome.   It will be a matter for the party in each case to decide what material it should rely on to prove its case, mindful of the range of matters to be considered in the efficient management and presentation of evidence, particularly where the burden of proof falls on a party, and the requirements of a fair trial in compliance with Article 6.
137.2	The Care Standards Tribunal has had a case management system from its inception and will no doubt continue to keep under review the procedures, practice and the regulations with regard to these matters.   What is crucial is for parties to be aware of the difference between what should be disclosed between them and what should be included in the bundles for trial.
138.3	We note that the original directions given by Judge Swift did not deal with the issue of records and it was not until the hearing was adjourned in July for lack of time that there was an opportunity to address specifically the matter of staff rotas with details of names, dates, times and periods worked and, crucially, a list of children with details of dates of birth and attendance.   The failure of Miss Quigley to provide these at the start of the resumed hearing or in response to further attempts to extract the information, was material to our findings, but it also confirmed us in our belief that this was an issue that should have been addressed from the outset in the preparation of the case and in its initial case management.

138.	Future risks
Finally, one important consideration when deciding whether or not to allow an appeal against a decision based on breaches of the regulations or the requirements of the national standards is the likelihood of further breaches. That is one of the reasons why it is so important for a tribunal to be able to consider events since the making of the decision under appeal. The Objections Panel accepted that Miss Quigley had recognised her deficits, acknowledged her desire to acquire necessary skills, and had made an attempt to agree a way forward, acknowledging this in a letter to her dated 11 February 2004.  However, we concur with Ofsted’s view that, by this time, it was too late to avoid the process of de-registration. In effect, Miss Quigley was merely seeking to postpone the inevitable.  She had not sought to challenge the fundamental basis for de-registration, but chose, for example, to make assertions that she had not been provided with help previously.  Whatever the position might be said to have been in the initial year, Miss Quigley can have been in no doubt as to her responsibilities by the time Ms Szyszkowski assumed responsibility for Kinderland.   Miss Quigley’s conduct thereafter does not indicate any real willingness to address the substantial number of issues nor did she give us any confidence during the course of this appeal that she was doing anything more than making token gestures towards what might be required of her in future.   We are in no doubt from the way in which Miss Quigley chose to conduct her appeal that further breaches would be likely were she continue to run a nursery.

139.	We find overwhelming evidence to the effect that the National Standards, specifically standards 1, 2, 4, 8, 11 & 12, the relevant Regulations and her conditions of registration were breached at various times and in various ways by Miss Quigley, including exceeding the maximum permitted number of children under 8, and under 5, not complying with the ‘suitable person’ requirements in leaving children in care of unchecked and/or unqualified staff, failing to provide outside play, having an inadequate partnership with parents, poor or non-existent record keeping and documentation and breaching her conditions of registration in having children under 2.

140.	We conclude that, given that the purpose of a regulatory scheme is the protection of children, the overwhelming evidence is that Miss Quigley is entirely unsuitable to manage or participate in any day care provision, and the only way to achieve the overriding intention of the legislation is to confirm cancellation.   

Accordingly Miss Quigley’s appeal against de-registration is dismissed

Signed

Ms L Goldthorpe
Chair
Ms L Redford 
Ms S Prewett
28th January 2005