In the First-Tier Tribunal (Health, Education and Social Care)
[2010] 1742.EYSUS

HS - appellant

v.

OFSTED - respondent

Before
Mr Brayne 
Mr Aitken 
Mr Braybrook

Heard on the 30th April 2010 at the Care Standards Tribunal Mowden Hall, Darlington.

1.	The appellant asked for a hearing on the papers.
2.	The tribunal had a bundle of papers including the decision to suspend, the appeal, the response to the appeal, a letter of complaint from Ms HS against the respondent, a letter of support submitted by the mother of a client, legal submissions from the respondent, case comments from the respondent’s records, and witness statement of LH, a senior officer for the respondent.
3.	The appellant appeals to the tribunal against the respondent’s decision dated 8th April 2010 to suspend her registration, as a child minder for six weeks until 20th May 2010. 
4.	The Tribunal makes a restricted reporting order under Rule 14 (1) (a) and (b) of the  Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, prohibiting the disclosure or publication of any documents or matter likely to lead members of the public to identify the appellant, her husband, her son, or the clients involved in the case, and directing that reference to them shall be by their initials or as Child 1 and Child 2 so as to protect their private lives.   

The background
5.	The appellant is a married woman. She was registered with the respondent in 2001 but had worked as a childminder registered by the local authority before then.  There is no evidence of previous concerns as to her suitability.
6.	The conditions of registration (according to the witness statement of LS) were:
•	she may provide care for no more than six children under eight years, of these not more than three may be in the early years age group and of these not more than one may be under one year at any time;
•	she must not use the first floor, except for the bathroom;
•	she must not provide overnight care.
7.	The appellant operates her childminding business from her home address.
8.	She has a son, J, whose precise age cannot be identified from the information before us.  However, in connection with a condition of police bail to which he was subject, namely that he not have contact with children under 12, he must be over 12.  It also appears from the papers that he is a child.  His age must be somewhere between 12 and 17. 

Events leading to the issue of the notice of statutory suspension.
9.	The respondent has referred to the children involved in this case as Child 1 and Child 2, both girls aged four; J, the appellant’s son; and T, another child.  It is convenient to describe them in this way in our decision.
10.	The respondent’s case, set out in the response, based on the evidence of witness LH and supporting documents referred to above, is summarised in paragraphs 8 to 12 below.  All dates are for the year 2010.
11.	On 1st April Child 1’s mother telephoned the respondent stating that on 31st May (sic) 20.10 Child 1 had made a disclosure to her.  (From the context it is clear that the month of March, not May, was intended.)  The mother had told the respondent’s officer that at 20.30 that evening Child 1 had said to her “J licked my bottom today”.  The mother had replied that J [must have] wiped her bottom.  Child 1 had said “No, licked my bottom.”  Child 1 had then said that “J has got a big wee wee bigger than T’s”.  Child 1 then disclosed that she had touched J’s penis but had not licked it.  She had then said “You are not angry with me are you Mummy?”  Child 1 did not appear to be distressed.
12.	Child 1’s mother telephoned the appellant at around 21.00 that evening.  
13.	After speaking to J the appellant, who was upset, called the mother of Child 1.  She said that J had gone into the bathroom as Child 1 was calling out for the appellant.  J had told the appellant that Child 1 had “weed and dribbled” and J had got a wet wipe to wipe her and to wipe the toilet seat, and had then told her to wash her hands.
14.	The appellant had told Child 1’s mother that she would complete the incident book.
15.	Social services held a strategy meeting on 1st April.  The respondent did not send a representative because of the short notice.  A case review was held on 8th April and the decision to suspend was taken because the respondent believed there to be a significant risk to other minded children at the appellant’s premises.

Events following the suspension
16.	The respondent in the response to the appeal described the following events after the notice was issued.
17.	J was arrested on 3rd April and interviewed under caution in respect of Child 1’s allegation.  He was charged with an offence relating to the allegation.  It is unclear when exactly he was then bailed.
18.	J was re-arrested on 9th April in respect of an allegation made by Child 2.  The allegation was that Child 2 had been playing a game with her mother called “who do you like?”.  In response to this question, Child 2 had put her head in her hands and stated “I don’t like J”.  Child 2 had then said that J had wiped her bottom with a wet wipe even though she had not asked for help and had made it clear that she did not want him to do it. 
19.	Both Child 1 and 2 were interviewed by police in respect of the allegations.  At a strategy meeting on 20th April the respondent was informed that Child 2 had repeated the above allegation.  Case records for the respondent indicate that “the second child” had confirmed that J had wiped her ‘Mickey’ (confirmed to be her vagina) and she had not wanted him to do it.  They also indicate that Child 1 had not made any disclosure during interview.  J had admitted to the police to wiping Child 1 when she had shouted for the appellant, and to wiping Child 2’s bottom when the appellant was not around. 
20.	The case records indicate that the police Child Protection Unit telephoned the respondent on 26th April to say that the case against J would not be proceeding further as it was a case of “the word of child 1 and 2 against the word of J”.  In the same call the officer also said that the CPS had decided that prosecution would not be in the interests of Child 1 and Child 2.
21.	On 27th April the appellant, together with her husband, indicated to CP, who from the context appears to be a social worker, that “they are adamant that they will not allow social work team to undertake any assessment as police are taking no further action and parents see J as a victim in all this….Parents believe J is totally innocent and the evidence is the police NFA.  Parents do not accept or understand the need for any further assessment and said J should be given a playstation and a good holiday for all he’s been through but that as HS isn’t working they cannot afford this.”  The record goes on to indicate that the social services department said they would complete the assessment but that the parents were highly unlikely to engage in that assessment.

The Law
22.	The statutory framework for the registration of childminders is provided under the Childcare Act 2006. This Act establishes two registers of childminders: the early years register and the general child care register. Section 69 (1) Act provides for regulations to be made dealing with the suspension of a registered persons’ registration. The section also provides that the regulations must include a right of appeal to the tribunal.
23.	Under the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 when deciding whether to suspend a childminder the test set out in regulation 9 is 
that the chief inspector reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.
24.	The suspension shall be for a period of six weeks. Suspension may be lifted at any time if the circumstances described in regulation 9 cease to exist.
25.	“ Harm” is defined in regulation 13 as having the same definition as in section 31 (9) of the Children Act 1989, “ ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill treatment of another”. 
26.	The powers of the tribunal are that it stands in the shoes of the Chief Inspector and so in relation to regulation 9 the question for the tribunal is whether at the date of its decision it reasonably believes that the continued provision of child care by the registered person to any child may expose such a child to a risk of harm.
27.	The burden of proof is on the respondent. The standard of proof ‘reasonable cause to believe’ falls somewhere between the balance of probability test and ‘reasonable cause to suspect’. 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.

Issues
28.	We considered the documents referred to above.  
29.	The respondent’s view, based on the witness statement and records referred to, is that there is evidence of risk requiring investigation, and suspension. as a result of the following concerns:
•	alleged licking of Child 1’s vagina and allowing touching of his penis by J
•	allowing J, or failing to manage her child minding so as to prevent J, to have intimate and inappropriate contact, even if it was not of a sexual nature, with children in her care.  
30.	The respondent submits that the decision, taken after the suspension decision, not to prosecute J was based on considerations which do not remove the need to investigate what may have happened and the procedures in place to safeguard children minded by the appellant, in order to arrive at a reasoned conclusion as to the ongoing registration of the appellant.  
31.	The respondent is also concerned that the appellant, in saying she will not co-operate with any further investigation fails to understand the need for appropriate procedures to avoid risk to children in her care or the gravity of the allegations.
32.	The appellant’s version of events and submissions can be identified in the records of what she said to the respondent, police and social services, in her appeal and then set out in the letter of 23.4.10 addressed to the Tribunal.  It is, in summary, that J did no more than assist Child 1 and Child 2 when they visited the toilet; that the decision not to prosecute J exonerates him; there is no need for any further investigation or suspension; that no risk of harm exists from J because she immediately arranged for him not to be present during periods when minded children are on the premises; she also submits that she is supported by the mother of one of the children whom she has child minded, who, we note, also refers to other parents not wishing her to be suspended.

Conclusions.
33.	It is not necessary for this Tribunal to make findings of fact as to whether or not J did touch children in the care of the appellant in a sexual manner, or allow himself to be touched inappropriately.  However, these are serious allegations and, if true, would show that the children were put at grave risk of harm.  The appellant believes that the decision of the police not to prosecute shows that he the allegations are not true.
34.	The appellant may not be aware of the factors which the police, advised by the Crown Prosecution Service, and taking account of the Code for Crown Prosecutors, must consider before reaching a decision on whether to prosecute.  These factors include the interests of potential witnesses and the prospect of obtaining a conviction.  
35.	The decision not to prosecute J was taken in light of the undesirability of requiring Child 1 and Child 2 to provide evidence, and of the difficulty in sustaining a conviction on the basis of deciding on the word of J against the word of the two children.  The police will also have taken into account that the standard of proof before a conviction can be obtained is that guilt has been proved beyond reasonable doubt.  
36.	The task of the respondent is, however, to assess risk.  In deciding to suspend the appellant, the standard is not as high as for the decision not to prosecute her son.  The respondent is obliged, by regulations referred to above, to consider whether there may be a risk to any child minded by the appellant.  The absence of a prosecution cannot be the sole factor, and the respondent must consider all the circumstances and reach its own decision on whether there may be a risk of harm.  The decision not to prosecute is not determinative of what happened.  The appellant cannot herself know what happened, even though, quite naturally, she relies on her son to tell her the truth, as she was not present at the time when J and Child 1 and Child 2 were alone with him in the bathroom.  
37.	We are unable to agree with the appellant that removing J from the family home resolves this issue.  This is for two reasons.  
38.	The first reason is that this effectively becomes a self-imposed condition of registration, and the respondent would need to consider issues such as how his absence during periods of child minding at the appellant’s home is to be monitored.  We also note that J is himself a child of school age, who would as a result be excluded from his own home.  The difficulties of ensuring compliance, let alone the desirability of such an exclusion when considering J’s own interests, would complicate the assessment of risk which the respondent must carry out.  It cannot simply be assumed that his absence would resolve matters.
39.	The second reason is that there are other concerns which would remain even if J’s  absence could be guaranteed.  The sequence of events is capable of leading to the conclusion that the appellant did not have in place appropriate procedures for contact between children and third parties in her home, or for safeguarding the interests of children in her care.  It is right that the respondent should investigate both what happened, and her understanding of what is appropriate to comply with the requirements of registration as a child minder.  
40.	The concern of the respondent is not just that the appellant’s son may have touched and allowed himself to be touched in a sexual manner.  The concern is also that the appellant did not manage her premises and procedures in such a way as to prevent intimate services being carried out by a person who should not have done so.  We consider those concerns to be well-founded, and to require investigation.  We also consider that until those concerns are investigated, and resolved, there may be a risk to children minded by the appellant.  
41.	We conclude that the suspension should remain in place, as the respondent has rightly concluded that the continuing provision of child minding services by HS may place children at risk of harm.  The continuation of the suspension is a proportionate response to the allegations made and the concerns raised. On that basis we are dismissing the appeal and upholding the decision to suspend registration.
42.	The appeal is dismissed. 

Mr Brayne, First Tier Tribunal Judge
Mr Aitken, Deputy Chamber President
Mr Braybrook, Tribunal Member

2 May 2010