JBS v OFSTED [2007] EWCST 1109(EY-SUS) (20 September 2007)

J. B. S.

v.

OFSTED

[2007] 1109.EY -SUS

Before
Ms. Maureen Roberts 
Mr. David Braybrook
Ms Susan Gilhespie

Heard on the 17th September 2007 at Durham Magistrates Court, Durham.

The Appellant was represented by Mr.Barker Solicitor of Messrs Richmond Anderson Goudie. We heard evidence from the Appellant and his wife. We also heard from two of the parents whose children had been minded, Mrs T and Mrs V.

The Respondent was represented by Mr. Buley of Counsel instructed by Ms Naomi Kincey of the Treasury Solicitor. For the Respondent, the Tribunal heard evidence from, Ms Noreen Appleby an Ofsted Inspector and Ms Claire Deary Area Manager of Ofsted.

1. The Appellant appeals to the tribunal against the Respondent’s decision dated 23rd July 2007 to suspend his registration, as a child minder for six weeks until 3rd September 2007. This suspension was subsequently extended to the 15th October 2007. He also appeals against the Respondent’s decision dated the 23rd August refusing to lift the statutory suspension which had been requested in a letter from the Appellant dated 22nd August 2007.

2. Orders were made at the commencement of the proceedings under Regulations 18 and 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, restricting the reporting of the proceedings and excluding members of the public and the press.  We are satisfied that these orders are necessary in this case to safeguard the welfare of the children and the private life of the people involved in this matter. We believe that the orders should continue and therefore individuals, except professional witnesses, are referred to in this decision by initials only.  Under regulation 27(3), the decision will be published with the Appellant's name reduced to his initials.

The background

3. Mrs. J.S. the Appellant’s wife has been a child minder since 1998. The Appellant was registered as a child minder on 15 December 2003. They have run a child minding service for up to 12 children under the age of 8 since that date. The most recent inspection on 26th August 2005 was good with only two minor points being made. 

4. The Appellant and his wife also mind teenage siblings of the children being minded. A number of teenage children came to the house after school and stayed for an hour or so before being collected by their parents and going home with their younger brothers and sisters. One of the teenagers who came was LC together with her friend LT both of whom are aged 13.

Events leading to the issue of the Notice of statutory suspension.

5. On 11th July 2007 as the Appellant took one of the younger children to afternoon nursery he passed LC and some of her friends outside their school. There was an interaction between JBS and LC. This was variously described as he slapped her bottom, or tapped it. The Appellant said that he had taken an exaggerated swipe at her backside but not made contact. In any event LC was teased by her friends and became very upset.

6. Her friend ZT tried to comfort her and as they talked LC told her that the Appellant had on one occasion put his hand down her jumper and touched her on or near her breast. ZT told LC she should tell her parents but she was reluctant to do so.

7.Later that day 11th July, LC told her parents about what happened in the playground but not about the touching incident. However ZT told her mother and the information was passed to L C’s parents. When L C’s parents asked her about the allegation she confirmed that the touching had happened. She was not sure when it happened but later it was stated that it had been between September 2006 and December 2006.

8. On Sunday 15th July LC’s parents went and discussed it with the Appellant and his wife. The Appellant denied touching LC and matters were quite heated between the parties.

9. On 16th July one of the other parents who knew about the allegation contacted Social Services and a multi agency investigation was commenced. As a result of this the Respondent was informed on 18th July. There was a strategy meeting of the agencies on the 19th July. The Respondent held a case review meeting on 20th July at which it was decided to suspend both the Appellant and his wife’s registration. The notices of suspension were served on the 23rd July.

10. JBS was arrested on 23rd July and interviewed. He denied the allegation. The police took the matter no further as LC and her parents did not wish to make a formal complaint. In addition her parents did not want her to go through an investigation or court proceedings.

11. The Appellant’s wife appealed against her suspension and on 24th July the suspension was lifted and she was allowed to continue with her child minding under a voluntary agreement which imposed conditions, one of them being that JBS was not in the house when she child minded.

12. On the 22nd August the Appellant wrote to the Respondent asking for the suspension to be lifted. This was refused. In reply, on 23rd August, the Respondent said ‘Our reasons for refusing to lift the suspension are that Ofsted have been informed of the outcome of the investigations conducted by the Police and Gateshead Safeguarding Unit. The information indicates that although no further action is being taken by either agency, there are concerns that the incident may have occurred, but the child who made the allegation does not wish to make a statement. Due to this, neither the Police nor Gateshead Safeguarding Unit are able to take any further action. The concerns raised give Ofsted reasonable cause to believe that children are at risk of harm.’

13. On the 30th August 2007th Appellant appealed to the Tribunal against the suspension and the refusal to lift the suspension. He stated that he had done nothing to warrant his suspension, he had not had an opportunity to respond to the allegations and that the allegations were ‘entirely without foundation’.

The Law.

14. Section 79 D of the Children Act 1989 (“the 1989 Act”) provides as follows,
(1) No person shall – 
(a ) act as a child minder  in England unless he is registered under this Part for child-minding by the Chief Inspector;…

15. Under section 79 H of the 1989 Act, the Secretary of State has a power to make regulations to provide for the registration of any person for acting as a child minder or providing day-care to be suspended for a prescribed period by the registration authority in prescribed circumstances.

16. In England the registration authority is the Her Majesty's Chief Inspector of Schools in England (the Respondent – OFSTED): section 79B (1) of the 1989 Act. The Regulations which have been made under section 79 H(1) of the 1989 Act are the, Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003  (“the Suspension Regulations”).

17. Regulation 3 of the Suspension Regulations, ‘Power to suspend registration’ provides as follows:
The Chief Inspector may, in accordance with regulations 4, 5, 6 and 7, suspend the registration of any person acting as a child minder or providing day-care if he has reasonable cause to believe that the continued provision of child minding or day care by that person exposes or may expose one or more of the children to whom it is or may be provided to the risk of harm and the purpose of the suspension is for one or both of the purposes set out in paragraph (2).
(2) The purposes of the suspension are –
(a) to allow time for the circumstances giving rise to the Chief Inspector's belief to be investigated;
(b) to allow time for the steps to be taken to reduce or eliminate the risk of harm.

18. It is clear to us that the question the Tribunal must ask itself on an appeal is whether there is a reasonable cause to believe that the continued provision of child minding may expose a child being minded by the Appellant to the risk of harm.

19. In accordance with decided cases in this jurisdiction the tribunal accepts that post decision facts can be made available to the tribunal. The meaning of ‘reasonable cause to believe’ falls somewhere between ‘the balance of probability test’ and ‘reasonable cause to suspect’. We agree that the belief is to be judged by “whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child might be at risk”.

The Evidence

20. We read the statements provided and heard from the witnesses listed above. All the witnesses had prepared lengthy and full statements.

21. The Respondents’ officers gave evidence. Mrs. Appleby was one of the Inspectors who carried out the investigations at the Appellant’s house and interviewed some of the other parents. Her statement gave us a very full chronological account of the Respondent’s actions. 

22. Mrs. Appleby explained to the Tribunal the procedure in which such allegations are investigated. Ofsted are not the lead investigators and therefore have to rely in the first instance on the information they receive from the Police and Social Services. The information that is gathered by all the agencies and the Respondent’s inspectors is regularly considered at Ofsted case reviews. The notes she took at the meetings with the Appellant and others (she was always with another colleague other than on one occasion) were then put into the Ofsted system. She did not consider that she was part of the decision making process. 

23. Mrs. Appleby had visited the Appellants, on 27 July, 10th August and 23rd August, to explain the steps being taken serve relevant notices and check the Appellant’s knowledge of the National Standards concerning child protection. Subsequently on 10 September 2007 she had interviewed Mrs.T the mother of ZT.

24. On the 10th September she had interviewed Mr. and Mrs. C the parents of LC. In that interview the parents had described how LC had told them what had happened and that she had been very upset. They believed their daughter and said that she was not a child who lied. Her mother also recalled that LC had tried to tell her something, before Christmas, about being touched by the Appellant. She recalled that she had shouted in shock and that LC had then said it must have been accidental.
 
25. In Ms Appleby’s view the investigations were continuing and not completed. There was reference to another allegation by LC which had only been recently received. Ofsted hoped that it would be possible to interview her as part of their investigations.

26. Ms Claire Deary the Area manager for the Respondent told us of her involvement since 22 August 2007.which was the date of a CIE case review when all the available information was considered. At that stage while no further steps were going to be taken by the Police or Social Services both agencies had expressed their concern  about the Appellant ‘professionals are seen to be uncomfortable at the prospect of JBS continuing to child mind’.

27. With reference to the allegation the meeting noted, ’The child’s mother believes her daughter when she was told about it. Although the child does not appear to wish to pursue her allegation with the police, she has not retracted it and all the parties appear to believe her allegation apart from Mr and Mrs JS.’

28. Ms Deary noted that the Appellant admitted the incident in the play ground on 11th July. Although he had said that there was no contact or that he might have touched the bottom of her jumper Ms Deary felt that the appellant’s actions were inappropriate behaviour with a 13 year old child. When she was asked how that behaviour and the allegation by LC might relate to the Appellant’s care of under 8s she said that in her view that kind of behaviour and the allegation if proved made inappropriate for him to work with children aged under 8. 

29. Following the case review on 22nd August, the interviews of LC’s parents and ZT’s mother took place. 

30. In her view there was sufficient information for the Respondent to suspend the Appellant’s registration on the grounds that he may expose a child or children to the risk of harm. 

31. The Appellant had also prepared a witness statement and supplemental statement. He had submitted a diary of events. He denied the allegation by LC and felt that there were discrepancies in the account of what was alleged. For example at the beginning it was said that he had touched her tummy and then it was her breast; there was conflicting evidence as to whether was alleged his hand had been down or up her jumper. He did not believe that LC had shown distress in the past months and pointed out that she continued to come to the house very often (she lives near by in the same street).

32. He explained what had happened in the play ground on the 11th July. He admitted that he had taken a theatrical swing at her behind. He did not think it had connected and was unaware that LC had become so upset afterwards.

33. The Appellant said that he had completed a child protection course. He did not behave differently whether he was child minding or in the parental home of a child at social events. He said that there was quite a lot of physical horseplay as children let off steam after school. He and his wife had reviewed their procedures and were not going to engage in physical play with the children in the future.

34. Mrs.S supported her husband’s version of events. Both Mr and Mrs S accepted that if the allegation made by LC were true then it was very serious and would justify the suspension. The Appellant denied the allegation and Mrs S said she believed her husband.

35. The Tribunal had the benefit of reading a number of letters in support of the Appellant. We also heard from two parents of children who are or were minded by the Appellant. They had no complaints about the Appellant and no concerns for children to go on being minded by him.

Conclusions and decision.

36. The tribunal reminded itself that this is an appeal against suspension and that no final decision has been made. The purpose of a suspension is to allow investigations to be carried out by the Respondent as provided by the Suspension Regulations. We noted that there was some complaint by the Appellant at the amount of time that was being taken to carry out the investigations and that he and his witnesses were not told where to send their information. We can understand his concern however there is set procedure for investigations of allegations such as this, and a statutory time scale for the enquiries by the Respondent.  

37. The allegation made in this case was of a serious nature. Having looked at the evidence available to the Respondent at the time of the suspension and the refusal to lift the suspension and at the Tribunal hearing we take the view that it is sufficient to support the test in the regulations. There is a ‘reasonable cause to believe’ that continuing as a child minder may expose a child to the risk of harm and the suspension was the appropriate and proportionate step to take time to allow time for the circumstances to be investigated.

38.  Respondent’s first duty is to the children being cared for and we appreciate that Respondent wishes to get further information about the original allegation and any further allegation that has been made prior to concluding its investigation.  On that basis we are dismissing the appeal and confirming the Respondent’s decision to suspend registration. We accept that the Respondent is still investigating the situation and whist this is being done there are grounds to conclude that there is a risk to minded children.

The appeal is dismissed.

 Our decision is unanimous.

Ms. Maureen Roberts - Chair
Mr David Braybrook
Ms Susan Gilhespie

20th September 2007