JB v OFSTED [2004] EWCST 409 (EY) (14 March 2005)

Mrs. J.B.
Appellant
-v-
OFSTED
Respondent

[2004] 409 EY

Carolyn Singleton (Chairman)
Maxine Harris
Peter Sarll

The Tribunal met at Small Heath Business Park, Birmingham on the 28th February, 2005 and 1st March, 2005. The Appellant was represented by her colleague, Sue Atkins and the Respondent was represented by  Ms. Lisa Sullivan of counsel. On 7th January, 2005, a direction had been made under Regulation 19(1) excluding members of the press and members of the public from the hearing so as to safeguard the welfare of any child. In this decision, therefore, the Appellant and any child mentioned will be referred to by their initials only.

The appeal

1. The Appellant was  registered as a childminder in 2000. Her current registration certificate allows her to care for no more than 6 children under 8 years of age. Of these 6 children, no more than 3 may be under the age of 5 years and of these, no more than 1 may be under the age of 1 year.

2. By letter dated 26th October, 2004, notice was given to the Appellant by the Respondent that her registration was to be cancelled. This decision was based on the fact that ;-
(i) on 27th March,2004, the Appellant had  left a child that was in her care unsupervised and unrestrained in a car whilst she went into a shop; a matter for which she was arrested and subsequently cautioned for an offence of child cruelty.
(ii) the Appellant was unable to provide the name, home address and date of birth for the child or the name, address and telephone number for the parent of the child.
 (iii) The Appellant had failed to notify OFSTED of changes in the circumstances of persons living in her premises.

3. The Appellant  appeals that decision.

4. The following witnesses were called to give evidence:

For the Respondent
P.C.Liam O’Hara
Jocelyn Brenda Bowen
Irene Susan Rogers
Susan Elizabeth Evans

For the Appellant
The Appellant
Shiree Watkins

5. Ms. Sullivan, for the Respondent, stated at the outset that the Respondent no longer sought to rely on the decision outlined in para. 2(iii) above.  The Respondent’s case was based on the fact that, in their view, the Appellant was no longer suitable to be a registered childminder because of the matters set out in the rest of Para. 2 above. She has fallen below the requirements of the National Standards .

The Background

6. On 27th March, 2004, The Appellant was looking after a child, known as “J”. This was a Saturday. She does not normally child mind at the weekends but, on this particular day, she had agreed to care for this child as a favour. During the day she took the child out with her whilst she did some shopping. There was no child seat in the car. At some stage she left the child unattended in the car. The vehicle was parked on double yellow lines. This attracted the attention of the police, who, upon closer investigation saw the child moving about in the car. The Appellant was arrested and was cautioned for an offence of child cruelty.

7. On 1st. April, 2004, the police notified the Respondent of the circumstances surrounding the incident and a Statutory Suspension Notice was issued whilst the matter was further investigated. On 8th April, the Respondent received notice from the police that their investigations had concluded and that the Appellant had been issued with and had accepted a caution for child cruelty.

8. On 27th May, the Appellant was interviewed by the Respondent regarding her continued suitability. On 15th June, the Respondent wrote to the Appellant regarding the outcome of that interview. The Appellant was told that concerns still existed in relation to the suitability of persons living at her address. The Appellant was advised that the suspension would continue to allow time for the circumstances to be examined.

9. On 24th June, the Respondent renewed the statutory suspension notice.

10. On 14th July, the Respondent visited the Appellant at her home to follow up an unsatisfactory inspection which had taken place the previous December.

11. On 23 rd July, the Respondent issued the Appellant with a notice of their intention to cancel her registration.

12. On 4th August, the Respondent received the Appellant’s objection to the notice to cancel her registration.

13. On 24th September, the Appellant attended an Objection Hearing with the Respondent.

14. On 26th October, the Respondent issued a Notice of Decision to Cancel Registration.

Case for the Respondent

15. The Respondent asserts that, on the 27th March 2004, the Appellant was child-minding. In the alternative, it asserts that , even if she wasn’t, she has shown that she has fallen below the requirements of the National Standards and her suitability for continuing registration as a child-minder has been brought into question.

16. P.C. Liam O’Hara gave evidence that he had been the officer responsible for issuing the Appellant with a caution. He confirmed that she had not been charged with an offence because the incident itself was not considered to be a serious one, there was no history of any similar offences and there would have been no useful purpose served by putting the Appellant before a court. The Tribunal was concerned that this police officer had not been present at the scene and that much of the evidence provided by him both in the form of his written statement and his oral evidence to the Tribunal was based on what he had gleaned from notes provided by the arresting officers.  He confirmed that, as far as he was aware, there had been no suggestion that the child “J” was distressed at all, but it had been  moving freely between the seats. The car was locked and he stated that one officer had seen the child attempting to interfere with the handbrake but the child had been unable to deactivate it. This last piece of information was something which caused the Tribunal concern. If this is true, then the Tribunal considered that it should have appeared in P.C.O’Hara’s statement in the papers. No mention of this is made in that statement. The Tribunal considered that  statements from the arresting officers should have been provided  rather than the Respondent seeking to rely on a version of events gleaned by P.C.O’Hara from his conversations with those officers and his reading of their notes. Furthermore, had the arresting officer been called by the Respondent to give evidence, a clearer picture of what actually happened would have been available to the Tribunal.
17.Jocelyn Brenda Bowen gave evidence that she had become involved with this case on 1st April when she received notification from the Child Protection Unit at Smethwick police station that the Appellant had been arrested on suspicion of child cruelty following the incident on 27th March. Following the issue of the Statutory Suspension Notice, the Appellant telephoned Ms. Bowen. The Appellant informed her that she had not been formally minding “J”; she had merely been doing it as a favour to the child’s mother. She was asked by Ms. Bowen to provide her with “J”’s details. The Appellant was unable to do this. She was able to provide Ms. Bowen with the details of the children she was currently minding but was unable to spell their names accurately. . These matters concerned Ms. Bowen as they breach the National Standards.

18. On 2nd April, Ms. Bowen wrote to the parents of the children that the Appellant was currently minding.

19. On 8th April, notification was received from the police that the Appellant had been cautioned for an offence of child cruelty.

20. On 10th May, Ms. Bowen received a letter from Kalpana Venkataraman from Birmingham City Council’s Social Care and Health Department  stating that she had carried out an assessment of the Appellant’s parenting skills with regard to her own children and that she had no concerns.

21.Irene Susan Rogers  stated that she had delivered the initial Statutory Suspension Notice to the Appellant’s home on 1st April. She interviewed the Appellant regarding her suitability as a childminder  on 27th May. Notes of that interview are included in the papers. The Appellant had explained her version of the events which led to her being arrested on 27th March. She admitted that leaving then child unattended in the car had been wrong, but that it was her first mistake. She assured  Ms. Rogers that she would not be put in that position again.

22. In oral evidence, Ms. Rogers stated that a lot of trust has to be placed in childminders to ensure that they maintain National Standards at all times. Her concern over the child “J” was that, being unattended in a car, he was at risk. She did, however, confirm that, prior to this, the Respondent had had no concerns other than those raised at the last inspection in December 2003. The Tribunal noted that, although some aspects of that last inspection had been deemed “Unsatisfactory”, the next inspection did not take place until July 2004. Ms. Rogers confirmed that the concerns raised by the December 2003 inspection had not been sufficient for the Respondent to consider cancelling the Appellant’s registration. Nonetheless, the tribunal was concerned that, despite the issues raised at the December inspection, a follow-up had not taken place until some seven months later. Indeed, the Tribunal suspected that a follow-up may not have taken place at all, had it not been for the incident in March 2004.

23. Susan Elizabeth Evans gave evidence that she is the Area Manager for Area 2 of the Office for Standards in Education (OFSTED), Early Years Division, West Midlands Regional Centre. She was the most senior representative for the Respondent to give evidence. She chaired the panel at the Objections Hearing .She stated that the decision to cancel the Appellant’s registration  was taken by Delrose Gooden who is the Areas Manager for the area in which the Appellant operates. Ms. Gooden has been on long term sick leave since November 2004 and Ms. Evans has been undertaking her duties in her absence.

24. Ms. Evans explained that a Statutory Suspension Notice was issued as soon as the Respondent became aware of the incident on 27th March because the evidence at that time indicated that the Appellant was failing to maintain National Standards. Time was needed to investigate those matters and to talk to the police and Social Services and an opportunity for the Appellant to explain what had happened was required. In her evidence, Ms. Evans stated that the risk to “J” was undetermined. No-one knows what might have happened. Just because it is said to have been a “one-off” incident does not mean there has been no risk. She went on to say that her concern was the manner in which she felt the Appellant had sought to minimise the seriousness of what she had done. The Respondent had considered the impact on the child, the risk to that child and that it was good fortune, not good judgement , that had prevented him from being harmed. She confirmed that the issue in this case, as far as the Respondent had been concerned, were the events of 27th March and, therefore, the Appellant’s suitability to be registered as a child-minder and her failure to notify the Respondent about changes in the people sharing her house, although she accepted that the latter reason was not now being pursued.

25. Ms. Evans was unable to provide the Tribunal with notes of the Objection Hearing that she had chaired but she recalled being concerned, along with her colleagues that the Appellant was not taking the matter sufficiently seriously. She went on to say that the events of 27th March combined with the Appellant’s reaction to them were considered to be sufficiently serious to cancel her registration. In particular, she stated that, if the Appellant’s reaction to the event had been more “appropriate”, the event itself would not have been sufficient to bring about the cancellation of her registration.

Case for the Respondent

26. J.B. gave evidence that, on the day in question, she had been asked to care for “J” by his mother as a favour. She does not normally mind children on a Saturday but “J”s mother was in difficulties. She has minded him before, once for a three week period in 2003 and then on the evening of 26th December 2003. She stated that she was not contesting what had happened. On 27th March, she had needed to do some shopping. The child seats were not in the car so she restrained “J” by putting the adult seatbelt around him. When she arrived at the first shop, she took “J” with her and he was difficult to handle. In her words “he ransacked the shop and kicked off his shoes”. When she returned to the car she put the seatbelt on him again and gave him his bottle. He started to fall asleep. She needed to visit an ATM machine at the bank to pay a cheque in and by the time she arrived there, “J” was asleep. She parked up, leaving “J” in his seatbelt with the car doors locked and went to the ATM machine. She then drove further up the road to opposite a Netto store where she intended getting some nappies and food for “J”. He was still asleep so she left him, again with his seatbelt on and the child locks on the car doors. She maintains that she could see him from inside the store at all times and that she was only away for about 7 minutes. When she saw police officers by the car she left the store.

27.When spoken to by the police ,J.B. states that she was able to give them “J”s first name . She was also able to give them his mother’s first name. She also had his mother’s mobile phone number but when she phoned it the phone was switched off.

28. In her evidence in chief the Appellant stated that she was very sorry for what she had done. She considered that she deserved to be suspended. 

29.Shiree Watkins is the mother of “J”. She explained the circumstances in which she had left “J” with the Appellant. She gave her £15 and asked her to buy some nappies and food for “J”. She did not expect there to be any change from this and, even if there had been, she would not have accepted it. She confirmed that the Appellant has apologized to her for the incident involving her son. She stated that she knows that the Appellant would not deliberately put her son in danger. She would have no problem leaving “J” in the Appellant’s care again provided her registration as a childminder continued. However, she did acknowledge that her view may have been different if “J” had been hurt.

The Tribunal’s Analysis

30. The Tribunal was asked to consider whether or not on the 27th March 2004 the Appellant was childminding.  They were referred to the definition provided in the booklet from Surestart. On the balance of probabilities the Tribunal consider that the Appellant was childminding on that day.  The fact that she was only given £15 and that this amount was to cover the cost of nappies and food is irrelevant. “J”s mother did not expect any money to be returned.

31. The Tribunal then considered whether the events of 27th March and the consequent breach of the National Standards were such that the Appellant should cease to be a registered child minder on the basis that she is not a suitable person as set out in section 79B(3)(a) of the Children Act.

32. There is, therefore, no argument on the law. It is a question of interpretation of the evidence and the effect of the evidence. There is little dispute between the parties on the core facts surrounding this cancellation. The burden of proof is on the Respondent to show that the Appellant is no longer suitable to be registered as a child-minder.
33. The Respondent’s case relies on the incident of the 27th March 2004, the consequent breach of the National Standards and the caution accepted by the Appellant for child cruelty. The Respondent maintains that these matters render the Appellant unsuitable to be a registered childminder.

34. The Tribunal carefully listened to all the evidence given at the hearing and read the scheduled evidence. In particular it noted the comments of Ms. Evans, the most senior member of OFSTED to give evidence. She was asked twice as to whether the incident in itself was sufficiently serious to bring about the cancellation of the Appellant’s registration. On both occasions she replied in the negative. It was a combination of the incident and the Appellant’s reaction to it which rendered her unsuitable to be a registered childminder. As stated above she went on to say that, had the Appellant’s reaction been more appropriate, her registration would not have been cancelled.

35. The Tribunal, therefore, looked at the evidence that was provided as to the Appellant’s reaction to the event in question. There is, of course, her oral evidence to the Tribunal. In this she stated “I am very sorry for what I have done and I think I should have been suspended” and “To leave a child alone is bad”. In the notes exhibited to the statement of Irene Rogers, the Appellant states “I deserve to be suspended”. When asked if she understands why the police maintain it is child abuse, she answers “I agree to this, not everybody’s perfect, first mistake”. In particular the Tribunal noted the contents of the letter from Kalpana Venkataraman, senior Social Worker with Birmingham City Council dated 10th May 2004. The Tribunal accepted that this is with reference to the Appellant’s ability to care for her own children, but , since the interview was specifically carried out with reference to the incident on 27th March, its contents are very relevant. Ms. Venkataram states “The referred incident was a one-off; a genuine mistake for which she is truly remorseful…………Jennifer did come across as a warm and loving person who deeply regrets what has happened- she does not come across as the sort who would willfully jeopardise the safety and well-being of any child in her charge”. The letter goes on to say that, as far as Social Service’s enquiries are concerned, they have no concerns about the Appellant. Unfortunately, the Tribunal did not have the benefit of seeing the notes of the Objections Hearing chaired by Ms. Evans. These would have been helpful, particularly in view of the fact that Ms. Evan states that it was the Appellant’s reaction at this hearing that cast doubt on her suitability as a childminder. This is evidence which the Respondent has failed to produce and causes the Tribunal some concern as to the presentation of their case. Also, as set out at the beginning of this decision, no evidence was provided by the arresting officers themselves, a matter which the Respondent should have addressed when preparing this case. The Tribunal is not satisfied that the Respondent has discharged the burden of proof.

36.There is no doubt that, in the Tribunal’s view, the Appellant has been frightened by this incident and the possible consequences of it. She placed a child at risk through her lack of foresight and the Tribunal accepted, on balance, that she was genuinely remorseful. Her conduct showed bad judgement on her part. She now accepts that it should not have happened, but in her eyes, at the time, she had made “J” as safe as possible. The Tribunal accepts that she now understands that it was not safe enough but the Tribunal does not accept that it is sufficiently serious to cancel her registration.
37. The Tribunal accepts that the Appellant now realises her responsibility to read and understand and maintain all the National Standards.

The Decision

The appeal is granted. For all the reasons set out above and, in particular, the fact that the Respondent did not consider the incident in itself sufficient to bring about the cancellation of the Appellant’s registration, the Tribunal is satisfied that the Appellant’s registration should continue.

This is a majority decision. One member of the panel would have dismissed the appeal for the following reasons:
•	The incident on 27th March was a serious one and there was a potential risk of the child being harmed.
•	The Appellant had very few details relating to “J” and hardly any contact details.
•	The Appellant minimises the seriousness of the incident. She was not a credible witness. There is some conflict in her written evidence and her oral evidence to the Tribunal.

Dated 14th March, 2005

Carolyn Singleton, Chairman
Maxine Harris
Peter Sarll