The Tribunal Procedure Rules (First-tier Tribunal) (Health, Education and Social Care) Rules 2008

Considered on Papers
On Wednesday 28th November 2012

Before
Deputy Chamber President Judge John Aitken 
Specialist Member Mr Graham Harper
Specialist Member Mr T John Williams

Mrs Olufunmilayo Ibukunola Williams 
Appellant
-v-

OFSTED
Respondent

[2012] 2002.EY-SUS

Decision

1.	This matter was listed for consideration on the papers. That is permissible under rule 23 however, not only must both Parties consent, which they have but the Tribunal must also consider that it is able to decide the matter without a hearing. In this Case we have a good picture of the allegations made the response and the level of risk present, from the papers, there appears to be no substantial factual dispute which might affect our decision and we consider that we can properly make a decision on the papers without a hearing.	

2.	The Appellant appeals to the Tribunal against the respondent’s decision dated 12th November 2012 to suspend her registration as a Child Minder on the General Childcare Register under Section 69 of the Childcare Act 2006, for six weeks until 24th December 2012. 	

3.	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 children or their parents in this case so as to protect their private lives.   

Events leading to the issue of the Notice of Statutory Suspension

4.	An incident of domestic violence occurred on 31st October 2012, the Police were called to the house which is used for childcare (no children were being looked after under the registration at the time). The domestic incident was a serious one, the Appellant’s husband had strangled her after an argument, and Mrs Williams asserted that she was forced to bite Mr Williams (who required hospital treatment) to prevent further injury. Mrs Williams own young children were witnesses to at least part of the incident, which was sufficiently serious that Mrs Williams considered that her husband may have been trying to kill her. Mrs Williams told the Police of a previous incident when Mr Williams had strangled her in 2010 as well.	

5.	On 13th November 2012 a decision was taken to suspend the registration of the Appellant and she was notified accordingly.

Events following the suspension

6.	On 22nd November when spoken to by an Ofsted Inspector the Appellant considered that there were matters that she needed to deal with before she cared for children again. The Appellant indicated that her husband still has access to the house although she was considering an injunction. She also said “I am scared, I’m scared for Saturday when he is due back”. That was clarified by the Appellant who at page 21 said this “I think he is a risk, I’m scared of what he might, I don’t know what he can do. I don’t know what I could say or do and what he might do with my own children or minded children.” She went on to say he was dangerous and unpredictable.	.	

The Law

7.	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.

8.	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.”

9.	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. This imposes an ongoing obligation upon the respondent to monitor whether suspension is necessary.	

10.	“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”. 

11.	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.	

12.	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

13.	The Appellant indicates in her appeal that her husband has agreed to go for counselling and an anger management course. She also suggests that if he is only on the premises whilst she is not looking after children that would help. She makes it very plain that she is interested in the welfare of the children in her care, and that parents who rely upon her would suffer during the period of suspension.

Conclusions

14.	We do not underestimate the difficult position that the Appellant finds herself in, she is plainly very hard pressed, and is clearly a very honest and hard working person. We note that the Appellant indicates that whilst her husband has agreed to undergo an anger management course he remains as far as can be established dangerous and unpredictable. If the Appellant had some form of protection in the form of an injunction it may be that the level of risk would be different, however at present a suggestion that the Appellant’s husband would refrain from attending the home during care of the children and will attend an anger management course is insufficient to deal with the very real risk of harm that the situation presents. We therefore consider that suspension is appropriate to
avoid risk to the children who would be in her care.	

Decision

The appeal against interim suspension is dismissed, the suspension is confirmed.

Judge John Aitken
Deputy Chamber President
Health Education and Social Care Chamber
 Wednesday 28th November 2012