In the First-Tier Tribunal (Health, Education and Social Care)
	[2009] 1695.EYSUS

L M - Appellant

v.

OFSTED - Respondent

Before
 Ms. Maureen Roberts 
Mrs Jenny Lowcock
Mr. Michael Jobbins

Heard on the 18th January 2010 at the Care Standards Tribunal Pocock Street London.

The Appellant appeared in person. She represented herself assisted by her mother. We heard evidence from the Appellant.

The Respondent was represented by Ms G Ward of Counsel instructed by Mr P Doggart of the Treasury Solicitor. For the Respondent, the tribunal heard evidence from, Ms S Will, Senior Officer, Compliance Investigation and Enforcement Team. The tribunal had a bundle of papers including the decision for the suspension, the appeal, a statement from Ms Will a minute of the multi agency strategy meeting and the Respondent’s internal Case Review meeting and letters and an e-mail from the Appellant.

1. The Appellant appeals to the tribunal against the Respondent’s decision dated 14th December 2009 to suspend her registration, as a child minder for six weeks until 25th of January 2010. 
2. 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 (the Rules), prohibiting the disclosure or publication of any documents or matter likely to lead members of the public to identify the Appellant, her husband or the clients involved in the case and directing that reference to them shall be by their initials so as to protect their private lives and because there are other legal investigations which are not completed.   

The background
3. The Appellant, is a married woman, who is registered as a childminder. She was registered with the Respondent in 2001 and has worked as a childminder for 15 years. The conditions of registration were, inter alia, that 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 maybe under one year at any time.
4. In January 2005 the Appellant’s husband, Mr M, was also registered as a childminder. He works from home as a builder and was helping his wife on one day in the week with childminding. The Appellant and her husband have a daughter aged eight years old.
5. The Respondent confirmed that the Appellant has an excellent record as a childminder; at her last inspection she was given a rating of ‘outstanding.’ The Appellant operates her childminding business from her home address.

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

6. On Friday, 11 December 2009 the Respondent received information from the local police that their Paedophile On-line Investigation Team (POLIT) had discovered that indecent images of children had been downloaded to a computer located at the home address of the Appellant. The police stated that these images were of a disturbing nature depicting children between the ages of 1 to 9 being sexually abused. The police informed the respondent that a search warrant was to be executed on Monday, 14 December 2009. They requested that the Respondent’s take no steps themselves until the search warrant had been executed.
7. On 14 December 2009 the police gave a further update to the Respondent and there was a multi-agency child protection meeting on that date. The information given to the Respondent was that the warrant had been executed and computer equipment and cameras seized in order to view their content. Mr M had confirmed that he was the main user of the computer. He had been interviewed and admitted that he had accessed the material although he asserted that he had done it accidentally or inadvertently. The Appellant was not implicated during this initial investigation.
8. The Respondent conducted a ‘CIE. Case review; initial suspension of registration’, on the afternoon of 14 December 2009. The meeting noted that “we now know that 50 to 60 high grade pornographic images (including the portrayal of full sexual intercourse with children between one year and nine years old) have been downloaded onto the family computer.
9. The Respondents concluded that there was significant information available to them “to suggest there is a strong risk of harm to children in the care of both childminders”. It further noted that the police were not pursuing an investigation in relation to Mrs M but it was noted that Mr M was currently residing in the family home, used for the child minding. It was decided to suspend the registration of both Mr M and the Appellant. The Respondent noted that it would await the outcome of the police investigation before conducting its own investigation regarding the suitability of the Appellant and Mr M. Mr M has not appealed against his suspension.
10. The Appellant appealed against her suspension stating that once the police investigation was completed it would be clear that there was absolutely no evidence or reason to suggest any form of child abuse from her. Further, she had an exemplary record from her OFSTED inspections and that Mr M would not be present when the children were minded and would move out of the registered premises permanently if this would assist in her appeal. By the time of the tribunal hearing Mr M had moved out of the family home and therefore out of the premises where the childminding takes place.

The Law.

11. The statutory framework for the registration of childminders is provided under the Childcare Act 2006 (the 2006 act) which came fully into force on 1 September 2008. The act establishes two registers of childminders: the early years register and the general child care register. Section 69 (1) of the 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.
12. The Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 (the 2008 Regulations) provide that a registered person may be suspended in circumstances prescribed by regulation 9 for the period prescribed in regulation 10.
13. The test for the Respondent consider when deciding whether to suspend a childminder is set out in regulation 9 as follows
“ 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 “.
The suspension shall be for a period of six weeks. But the suspension may be lifted at any time if the circumstances described in regulation 9 cease to exist.
14. “ 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”. 
15. 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.
16. 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.

The Evidence

17. We read the statement and papers provided and heard from the witnesses listed above. 
18. Ms Will on behalf of the Respondent confirmed her statement and outlined the information which the Respondent had received from the other agencies involved. She explained that he police have a categorisation system for paedophile images. They are rated on a scale from 1 to 5 and she has been informed that the images involved in this matter ranged from 1 to 4. They are therefore very serious.
19. Ms Will acknowledged that she had been told that Mr M had moved out of the premises. She accepted that the Respondent could impose such a condition in a suspension matter. However it would be difficult to monitor the condition. In addition, because of the seriousness of the allegations the Respondent was in close liaison with the police and was waiting for confirmation that the Appellant had been completely eliminated from the investigation. She had not had such confirmation to date. 
20. Information was being gathered from the police and social services on an ongoing basis. Mr M is due to answer his bail on 25 February 2010. However it is hoped that a decision by the police and CPS will be made before that date; the indication is that a caution or charge is likely.
21. It was noted by the Respondent that even were only the Appellant’s husband to be convicted of an offence arising from the current investigations, then the Appellant would be disqualified from registration under Regulation 9 of the Childcare (Disqualification) regulations 2009. The impact of this regulation was outlined to the Appellant at the hearing.
22. Ms Will explained that as the police are the lead investigation in this matter, the Respondent has to wait until it has clearance from the police and social services that they may conduct an interview with the Appellant to discuss with her the situation and to assess her suitability to continue as a childminder. The situation is being assessed continually. There is a further strategy meeting taking place on 19 January 2010.
23. The Appellant confirmed that her husband no longer lives at the family home which is the premises where the childminding takes place. He calls to see his daughter twice a day. She said that she was totally shocked by the allegations. She understood that the matters had to be investigated but felt that as there were no allegations against her and if her husband was excluded from the premises she could continue to childmind in the meantime.
24. For the reasons set out above the Respondent maintains that it does reasonably believe there is a risk of harm to children based on the current police investigation. Clearly the Respondent is not saying that the Appellant poses a risk but given the very serious nature of the investigation it must wait until all of the computer files and equipment have been checked and the full extent of the images is known. The Appellant must be excluded from the allegations and the Respondent is waiting police clearance on this point. The Respondent will carry out its own investigation with the Appellant once it has that clearance.

Conclusions.

25. We accept that the Respondent’s witness gave us a fair and considered view of the reasons for the decision for suspension and outlined the future steps which were planned. We further accept that the Appellant was honest in giving her view of the matter to the Tribunal. We understand her dismay at what has occurred.
26. The tribunal accept that the allegations are very serious. The test as set out in regulation 9 of the 2008 Regulations (Paragraph 13 above) is made out. 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. This decision was announced at the end of the hearing.

The appeal is dismissed. 

Ms Maureen Roberts
Mrs Jenny Lowcock
Mr. Michael Jobbins
1 February 2010