Pipe & Anor v The National Assembly for Wales [2004] EWCST 0356(EY) (09 January 2005)

Decision
In the Care Standards Tribunal		

Roger Pipe and Doreen Pipe

-v-

The National Assembly for Wales

- Before -
Mrs Meleri Tudur (Chairman)
Ms Heather Reid
Mr John Williams

[2004] 0356 & 0358 EA-W

Heard at the Swansea Civil Justice Centre on the 5th January 2005.

Facts
1.	This is an appeal under the Children Act 1989 Section 79M against a Notice of Decision made by the Respondent refusing the applications of the Applicants for registration as childminders under the Children Act 1989 Section 79 L(5).

2.	The Applicants submitted applications for registration as childminders in August 2003.  Both applications were unsigned and undated and were returned and resubmitted to the Care Standards Inspectorate for Wales (CSIW) on the 20th August 2003.  

3.	In accordance with their usual procedures, the CSIW carried out preliminary checks with the Criminal Records Bureau, medical, social services and personal references.  On the basis of the information received, the inspector decided to arrange fit person interviews on the 20th November 2003.  Both Mr Roger Pipe and his mother, Mrs Doreen Pipe, were interviewed, individually and together, and on the basis of the information shared during the interview and in the applications, the parties and the inspector concluded that their applications should be treated as a joint application because Mrs Pipe had indicated that she would rarely if ever be left on her own with children.  During the interview, the applicants disclosed that there were ongoing private law Children Act proceedings relating to Mr Pipe’s contact with his son.  At the end of the interview, the inspector concluded that further information was required before the application could be considered in full.  

4.	On the 24th November 2003, the inspector received further information from Carmarthenshire Social Services Department that they were still very involved with the family and that there were allegations of abuse which were currently under investigation.  On the 25th November 2003, during the course of a telephone call with a team leader in the Social Services Department, further information was disclosed which led to additional questions being raised.  The inspector decided to view Social Services’ file about the family but was informed on the 2nd March 2004 that the written consent of both Mr Pipe and his estranged wife, Mrs Juliet Pipe, would be required to facilitate disclosure of the file to the inspector.

5.	Mr Pipe was requested to consent to the disclosure of the Social Services file to the CSIW inspector, but in a letter dated the 15th March 2004, he stated that he had requested a copy of the social services file and indicated that he would apply to the court for disclosure to the inspector of documents prepared in the private law Children Act proceedings.  In the event, the application to the court was not made, and at a meeting on the 12th May 2004 and in a letter dated the 28th May 2004, Mr Pipe was requested to provide his written consent to the CSIW to make their own application to the court for disclosure and to allow CSIW to disclose to Mrs Juliet Pipe that he had made an application to become a registered childminder and to seek her consent to disclosure of the court papers.  Mr Pipe wrote in a letter received on the 9th June 2004 that he did not see the relevance of the documents requested since they had been dismissed by the Judge in the Children Act proceedings and that both the involvement of Social Services and their recommendations had been dismissed from the case at a hearing in March 2004.

6.	In a letter dated 10th March 2004, Mrs Doreen Pipe requested that her application be considered separately from that of Mr Roger Pipe.  At the hearing, Ms S. Binding gave evidence that she had written in response to Mrs Pipe’s request stating that at the interview of the 20th November 2003, agreement had been reached that the application would be treated as a joint application, and that the application had continued on that basis.  Mrs Pipe did not respond to the letter and did not make any further request for her application to be considered on its own until the appeal was lodged.

7.	A Notice of Intention to Refuse Registration was issued to both applicants on the 30th July 2004.  In a letter dated the 3rd August 2004, Mr Pipe responded to the Notice, setting out his grounds for objection.  A subsequent letter dated the 16th August 2004, forwarded to the CSIW a copy of a transcript of a judgement of the President of the Family Division, Dame Elizabeth Butler-Sloss, dated 4th February 2004 and a copy of an order made in the Children Act proceedings, by Mr Justice Hedley, dated the 28th July 2004.

8.	On the 19th August 2004, a Notice of Refusal to Register was sent to both Mr and Mrs Pipe on the basis that the CSIW had insufficient information to enable them to proceed to deal with the application.  The reasons set out in Mr Pipe’s Notice of Refusal were:
 i) without disclosure of the court papers in the contact dispute between him and his estranged wife, the CSIW would not be able to be satisfied that he is suitable to be registered as a child minder;
ii) that he failed to assist CSIW in obtaining these papers by not giving his written consent;
iii) that the CSIW is of the opinion that it is reasonable to require such additional information because information received from social services raised significant concerns regarding his suitability to child mind.

9.	Mrs Pipe’s application was refused and the reasons identified as being that she had made it clear that she did not wish to be considered for registration as a child minder other than jointly with her son, that Mr Pipe had been requested to give permission to access additional information and failed to do so and that there were significant concerns which without sight of the relevant documentation, the inspector could not come to the view that he is qualified and therefore suitable to act as a childminder. Consequently, because of their close relationship, the fact that Mr Pipe is part of her household, the joint nature of their objections and applications, her application was also refused.   Both applicants appealed to the tribunal against the decision.

10.	On the 13th October 2004, directions were given as to the progress of the case which included an order that the two appeals be heard together and that a Restricted Reporting Order be made under Regulation 18(1) prohibiting the publication (including by electronic means) in a written publication available to the public or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child.

11.	At the hearing, both the applicants were assisted by Mr Phillip May, a family friend, local councillor and Shadow Cabinet Member for Social Services on City and County of Swansea Council.  As a preliminary issue, Mr May raised with the Tribunal the question of whether the member, Mr John Williams, was the same “John Williams” to whom Mr Pipe had written a letter and conducted a telephone conversation during the summer of 2004, in connection with issues arising in the Children Act proceedings and the involvement of Carmarthen Social Services department in those proceedings.  Mr John Williams stated that the only work that he undertook for Carmarthen County Council was as an independent chair of Child Protection Case Conferences and that he would not have any locus to deal with correspondence or telephone calls on their behalf.  Mr Williams confirmed that he did not have any knowledge of Mr Pipe prior to receiving the case papers in the present appeal and in response to the Chair’s enquiry as to whether they were satisfied with Mr Williams’s explanation and his view that there was no conflict of interest, Mr Pipe and Mr May confirmed that they were prepared to proceed with the hearing.

12.	At the start of the hearing, Mr May confirmed that Mr and Mrs Pipe did not wish to give formal evidence in support of their appeal, but wished to have the appeal dealt with on the basis of their representations which he would make on their behalf.  There was therefore no opportunity to hear direct evidence from Mr and Mrs Pipe or for their cross-examination.

13.	In evidence at the hearing, Ms Siân Binding, Inspection Officer with CSIW confirmed that she had reproduced in her statement her notes of a telephone conversation with Ms Ann Grace, Team Leader from the Social Services department.  She expressed her concern that she was receiving information from a third party and not directly from the social worker who was responsible for dealing with the Pipe case and concluded after that conversation that she should have access to the full file.  She requested sight of the file but was told that she would have to have the consent in writing of both Mr Pipe and Mrs Juliet Pipe.  Her initial request to Mr Pipe for consent had been in respect of the social services file.  Mr Pipe had indicated that he considered the social services files to contain information that was incorrect or false and consequently that he would request disclosure of the full court file of the Family Court.  When Ms Binding subsequently sought his consent to make that application, he did not provide it and expressed his view that the information was irrelevant.  Ms Binding gave evidence that this was the first application for registration where she had made a recommendation against registration.  Her recommendation was based upon her view that the information necessary to make the decision was incomplete and patchy and insufficient to enable her to make an informed decision.  In cross examination, Ms Binding confirmed that in her 11 years of experience as a child care inspector, this was the first time that she had come across a situation where two fit person interviews had been conducted and there were still outstanding issues.  It was also the first time that she had recommended refusal and the first time that she had been aware of live private law proceedings which she considered relevant to the application.

14.	Ms Lindy Meese, Senior Inspector for Day Care (West Wales) with CSIW gave evidence about her involvement in the registration process.  She confirmed that the CSIW routinely follow up referrals to social services and routinely have telephone conversations to clarify whether there is a reason why someone should not work with children under 8 years old.  She confirmed that the present applications had not been treated any differently from others.  She stated that she was not aware of any further information disclosed by social services other than that outlined in the papers.  She clarified that it was in response to the presentation of a hypothetical scenario whereby she would be responsible for several young children that Mrs Pipe had indicated to the inspectors that she did not anticipate being left alone for any length of time with the children and the decision was made to treat the applications as joint.  Ms Meese added that it is important for parents to have confidence in the registration process when they are placing their children in a registered setting, where the child minder is working at home on an unsupervised basis for long periods.  She expressed her view that the inspector cannot therefore take a partial view. Every application is treated in a holistic way and if the CSIW consider that they are only having some selected information produced, then they are not in a position to make a robust decision.  She confirmed that the overview offered by the full disclosure of the court papers was the important view in this case.  The request to view the papers was not in order to consider Mr Pipe’s ability to parent his own child but rather to identify whether there were any issues which might impact upon his ability to manage a child within the home.

15.	Ms Angela Mary Williams, Regional Director of CSIW in West Wales gave evidence of her own involvement in the case.  She had considered Mr and Mrs Pipe’s representations in response to the Notice of Intention to Refuse Registration and the procedures used by the CSIW.  She had considered the letters from Mr Pipe, queried with Mrs Pipe whether she wished to submit her own representations and taken into consideration the additional papers submitted by Mr Pipe in August.  She expressed her view that the order of Mr Justice Hedley as an interesting piece of background information but that the comments by Dame Elizabeth Butler-Sloss in her judgement actually raised further issues which needed to be addressed.  She referred to the fact that Dame Elizabeth Butler-Sloss had referred to three other court judgements which were in existence, apart from her own, and the fact that the judges in those hearings had received professional advice from both social services and CAFCASS “..which was not favourable to the father and therefore by implication to the grandmother.”  She perceived the information produced by Mr Pipe in August as being selective and she wished to be able to exercise her own opinion based on an overview as presented in the court papers.  She stated that she was seeking to assure herself that there is nothing about the applicants that will present a risk to children who might be placed in their care.  She remained of the view on the day of the hearing that she did not have the full picture and still did not have sufficient information to make the decision.

16.	Mrs Rachel Stephens, on behalf of the Respondents, submitted that she had advised CSIW to request Mr Pipe’s consent to the making of an application to the court for disclosure rather than making the application without it, because she knew from past experience that the Judge hearing the application would want to know the parties’ views about the application.  She submitted that obtaining Mr Pipe’s consent would have facilitated the application to the Family Court for disclosure of the documents.  In closing, Mrs Stephens submitted that the issue for consideration was whether it was reasonable for CSIW to request disclosure of the information contained within the private law proceedings and whether the request fell within the ambit of Section 79 E(2).  She considered the issue to be the nub of the case.  She submitted that it is the background of unresolved issues which is unusual, rather than the fact of the contested private law proceedings.  She submitted that the disclosure of the papers may reveal no areas of further concern, in which case the application could proceed.  Until the day of the hearing, the CSIW had been unaware that eight separate Section 7 reports had been requested by the court and had no idea about the volume of the papers.  The fact that the case had also been heard in three separate jurisdictions, namely the county court, high court and the court of appeal was, in itself, unusual.

17.	Mrs Stephens submitted, in relation to the request to deal with the applications separately that following the information shared at the interview in November 2003, the applications could only be considered jointly.

18.	Mr May made representations on behalf of the applicants that the appeal should succeed because the Respondent could have made the application to the Judge for disclosure of the court papers without Mr Pipe’s consent.  He submitted that the appeal should be upheld on the basis that the process of considering the application to register was fundamentally flawed because the decision to refuse had been made when another avenue remained open to the CSIW, namely to make an application to the court.  He regarded the request for disclosure as an attempt to challenge the decision of a higher court, because the High Court Judge had allowed Mr Pipe unsupervised contact with his son in a rural setting for periods of up to 72 hours at a time.  He submitted that Mr Pipe had already been the subject of scrutiny by the family court and that the CSIW and the Respondent should be reassured that this had already been done and that the work did not need to be replicated.  He submitted that Mr Pipe had not been obstructive but wanted the decision in respect of disclosure made on its own merits by a Judge in the Family Division.  He confirmed Mr Pipe’s view that the Section 7 reports prepared by the local authority and CAFCASS in the private law proceedings had been superseded by the order of Mr Justice Hedley in July 2004 and by the comments of Dame Elizabeth Butler-Sloss in the Court of Appeal judgement.  He submitted that the President of the Family Division had criticised Social Services’ handling of the private law case and that the comments of the social worker were irrelevant because the Judge in the case had stopped supervised contact and had discharged Social Services and their recommendations from the case.  He stressed that Mr Pipe now has unsupervised contact with his son for 72 hour stretches and that, in his view, the evidence contained in the reports has already been considered by a very senior and experienced Family Division judge, who had ordered unsupervised contact.  He submitted that a Section 7 report is merely the opinion of a social worker and referred to comments made in the decision in the case of Mrs R –v- OFSTED [2003] 0202.EY, where the Care Standards Tribunal criticised the statements presented as containing opinions and departing from standards of professional objectivity.  Mr May generalised the criticism to all Section 7 reports and submitted that as the reports had been already considered by the judge and rejected, there was no need for CSIW to duplicate the work.

19.	In respect of Mrs Pipe’s appeal, Mr May requested that the tribunal consider the application on its own, as a stand alone application rather than as a joint application with her son.

Legal Framework
20.	 The application for registration is governed by the Children Act 1989 Section 79 B(3)(a).  This states that a person is qualified for registration for childminding if he and every other person looking after children on any premises on which he is childminding, is suitable to look after children under the age of eight.  Following the Court of Appeal decision in OFSTED –v- Spicer [2004] EWHC 440 Admin, the burden of proof is on the Applicant in applications for registration.  In the analogous case of an application for registration as a manager of a care home, Thomas LJ stated in the case of Jones –v- CSCI [2004] EWCA Civ 1713 “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.”  Where a childminder is applying to register to enable them to childmind children under the age of eight in their own home for long periods of time without supervision, we consider that the same public interest considerations must apply and that any doubts as to suitability must be resolved against registration.

Tribunal’s conclusions with reasons
21.	We have considered all the papers presented in support of the appeal and have looked in detail at the comments made by the Social Services Team Leader in November 2003, as reported by Ms Binding.  There are issues mentioned there, which we consider should immediately trigger alarm bells for any conscientious inspector considering an application for registration: there was an ongoing social services investigation into allegations of child abuse within the family; there was an allegation that a family court judge had found as a fact that Mr Pipe had made malicious allegations of abuse against his estranged wife with a view to influencing the outcome of his application for residence in respect of his son; there was alleged to be a Prohibited Steps Order in place against Mr Pipe preventing him from working as a volunteer in a school and all contact between Mr Pipe and his son was supervised.  All of these matters led the inspector to the conclusion that she required further information in order to clarify the true position and to allow her the opportunity to make an informed judgement about the merits of the application.

22.	The further documentation presented by Mr Pipe in August raised further questions – particularly the reference by Dame Elizabeth Butler-Sloss to the professional reports which were adverse to Mr Pipe and by implication his mother. We consider that in the light of the allegations and questions raised, it was reasonable of the inspector to seek further information about the situation, and furthermore it was reasonable to expect Mr Pipe to co-operate and to facilitate the obtaining of the information, as far as that was possible. As the applicant in an application for registration, the burden is upon him to co-operate with CSIW and to facilitate the disclosure of such information as the CSIW may require, in support of the application.  We do not criticise the Respondent for not embarking upon the exercise of requesting disclosure of the court papers without Mr Pipe’s prior written consent.  Although we realise that it was not within Mr Pipe’s power to grant disclosure, his consent and co-operation in making the application would have been a clear indication to the Respondent that he was genuine in his attempts to be open and honest with them.  We have therefore concluded that the CSIW were reasonable in their request to Mr Pipe to provide his consent to their seeking both disclosure of the court papers and sight of the social services file.   

23.	We do not consider that there is any merit in Mr May‘s submission that the contents of the reports have been adjudicated upon within the High Court and that therefore there is no need for disclosure.  The issues for consideration by the High Court in Children Act proceedings will be significantly different from those considered by the CSIW in the context of the application for registration of a child minder.  That does not in our view rule out the possibility that the documentation prepared in the context of the private proceedings will not be relevant or helpful in addressing the issues raised by the inspector.

24.	Any doubts about the applicant’s suitability to look after children under the age of eight must be resolved against registration and we find that the decision of the CSIW in refusing to register was correct.

25.	We considered Mrs Pipe’s request at the start of the hearing to have her application dealt with separately.  On the basis of the information she disclosed at the interview in November 2003, it was agreed by all present that the applicants’ two applications should be treated as a joint one and a note indicates that that was the basis on which the applications were submitted by the applicants.  Furthermore, when this was confirmed as the position in the letter dated the 29th March 2004 from Siân Binding, Mrs Pipe did not object.  Finally, when a direction was given on the 13th October 2004 by the Tribunal that both appeals should be heard together, there was no objection to that either.  We have therefore decided that the applications have been treated since at least November 2003 as a joint application, the close relationship between the applicants and the fact that they live within the same household, there are no grounds to justify their applications now being treated separately.  We therefore confirm on the basis that we have confirmed the refusal to register Mr Pipe’s application that we also confirm the refusal to register Mrs Pipe’s joint application.

This is the unanimous decision of the Tribunal

Order
Appeal dismissed.

Dated the 9th January 2005.

Meleri Tudur (Chairman)
Ms Heather Reid
Mr John Williams