Odubamowo v OFSTED, Court of Appeal - Childminders and Day Care Providers for children, July 16, 2005, [2004] EWCST 393(EYJP)

Resolution Date:July 16, 2005
Issuing Organization:Childminders and Day Care Providers for children
Actores:Odubamowo v OFSTED
 
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Christiana Odubamowo v OFSTED [2004] EWCST 393(EYJP) (16 July 2005)DECISIONChristiana Odubamowo v OFSTED Case No’s: [2004] 0393.EYJP [2005] 452.EY- Before -Ms Liz Goldthorpe (Chair)Mr Peter GeorgeMr Keith WhiteHearing at the Care Standards TribunalPocock Street, LondonOn 17th and 18th March 2005Appeal1. The Applicant (CO) appealed under Part XA of the Children Act 1989 ("the Act") as inserted by Section 79K of the Care Standard Act 2000 against an order made on 22nd October 2004 by the Inner London Family Proceedings Court (District Judge Gillibrand) to cancel her registration as a childminder, and, furthermore, against the decision by the Office for Standards in Education ("OFSTED") to cancel the said registration pursuant to Section 79M of the Act. 2. The Appellant appeared in person and said she intended to call a witness, Ms A, on 18th March. Ms A had given a statement dated 20th October 2004 for the hearing at the Family Proceedings Court, at which she gave oral evidence. Ms A failed to attend the Tribunal hearing. 3. Ms Freeborn of Counsel, instructed by Messrs Bevan Brittan, represented the Respondent and called Mr Georgiou, Ms Kendrick and Ms Ramsay of OFSTED, PC Stafford and PC Morrison, and Ms U and Ms D.PRELIMINARY MATTERS4. On 4th January 2005 the President refused an application for a preliminary hearing and made orders under Regulation 18 (1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting the publication (including by electronic means) in a written publication available to the public, or inclusion in any programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child in these proceedings.5. On 17th February the President refused the Respondent’s application for an adjournment. Ms CO issued a second appeal, against Ofsted’s decision to exercise its powers pursuant to section 79G of the Act to cancel her registration on grounds of suitability, her failure to comply with regulations made pursuant to the Act and her failure to comply with a condition of her registration. On 23rd February the President ordered the consolidation of the two appeals and gave directions for the filing of video evidence by the Applicant showing “some salient areas of her apartment” and the abridgement of time limits for service of documents.5. On 17th March we continued the Restricted Reporting Order in respect of the first appeal and made an order under Regulation 18 in respect of the second appeal.Hearing and further Directions6. The Applicant submitted video evidence showing her flat, which was not received by the Respondent, but was viewed on 17th March. The Applicant failed to arrive until 11.40 a.m. on the first day of hearing and did not bring her childminding records. She explained she had received a letter from the Respondent telling her to come at 11.00 am, but could produce nothing to support this assertion. The Respondent did not object to her submission of 3 undated photographs that she said showed the sitting room in her flat and a number of children she said had been in her care and had been taken in the week of the incident described below. We accepted these as late evidence having warned the Applicant about the weight that was likely to be attached to such uncorroborated material.7. Having completed the evidence for both parties in relation to the s.79K appeal (Appeal One) at 5:00 pm on 18th March 2005 we concluded that written submissions should be made and the s.79G appeal (Appeal Two) should be adjourned to a date to be fixed, on the following directions: i) An extension of the Restricted Reporting Order on both appeals until further order. ii) Counsel for the Respondent to serve written submissions on Ms CO in relation to Appeal One no later than 4:00 pm on 1st April 2005. iii) Both parties to file written submissions with the Tribunal in respect of Appeal One no later than 4:00 pm on 8th April 2005.8. Miss Freeborn provided detailed written submissions addressing the evidence heard on 17th to 18th March, but, being limited to the s.79K appeal, these submissions did not address the Respondent’s wider concerns and issues arising in the s.79G proceedings. The Applicant did not file any submissions.THE LAW AND GUIDANCECancellation9. The Children Act 1989 provides two methods of cancellation of registration of a childminder: the conventional and the immediate (or emergency). Both were used in this case, but it is only the immediate procedure with which this decision is concerned. On application to the Family Proceedings Court in accordance with s.79K(1)(b) of the Act for immediate cancellation, the test that the court must apply in determining whether to grant the application and cancel the registration is that “it appears to the justice that a child who is being, or may be, looked after by that person, or (as the case may be) in accordance with the provision of day care made by that person, is suffering, or is likely to suffer, significant harm”. If the court finds that the grounds exist it is then able (but not obliged) to make an order cancelling the registration.10. In this context "likely to suffer" means that there is a real possibility that the child will suffer significant harm (Re H & R [1996] 1 FLR 80). The meaning of the phrase “likely to suffer” was considered in Spicer v Ofsted [2003] 0165.JP at paragraph 19 where it was defined as meaning “that there is a real possibility that the child will suffer significant harm”.Supervision and Safety11. Standard 6.3 of the National Standards requires that children are “under the direct supervision of the childminder or assistant at all times. Supervision should be sufficient to ensure that children are safe at all times.”Notification12. Any such incident as described below must be reported to Ofsted by the childminder in question by virtue of Regulation 6 of the Day Care and Child Minding (National Standards) (England) Regulations 2003.The basis of determination by the Tribunal13. The Tribunal is not considering the merits of the decision of the Family Proceedings Court but is considering afresh the test contained within s.79K of the 1989 Act. The Respondent must prove that the grounds contained within s.79K of the 1989 Act are made out. Further, because the section empowers rather than requires the court to make an order, the Respondent must show that such an order should be made.14. Disposal of appeals against an order made under s.79K is provided for in s.79M: the Tribunal may dismiss the appeal or alternatively allow it (and hence allow the Applicant’s registration to be restored) and impose, vary or cancel any conditions upon the registration under section 79M(2) of the 1989 Act.FACTS15. The Applicant, who is aged 60, lives alone in two-bedroom 5th floor purpose built flat in London. She was first registered as a childminder in March 2003 and in January 2004 she requested a variation in the conditions of her registration to allow her to care for two children under the age of 2. Her terms of registration in September 2004 allowed her to care for no more than six children under the age of 8 years, of whom no more than three could be under 5, and no more than one under 1 year old. She has been subject to annual inspection by Ofsted from the outset. In October 2003 she also became a member of a local Child Minding Network and was subject to supervision and support by that organisation.16. On September 7th 2004, Ms U, the mother of D then aged nearly 14 months, engaged Ms CO’s services. Ms U, who was a student and a single mother at that time, funded this through the Care to Learn scheme, which provided funds to enable 16 to 19 year olds with children to attend college by paying childminding fees direct to the relevant childminder. On 22nd September 2004 she and a friend, Ms L, went to the Applicant’s flat to see D, arriving between 12.15 and 12.30. They received no answer when they rang the doorbell, nor when they subsequently knocked, but both women said they heard children crying. Ms U said she was distressed and her attempts to reach the Applicant on her home telephone by using her mobile telephone resulted only in her being connected to an answering machine. When she subsequently rang the Applicant’s mobile telephone, the Applicant responded saying ‘I’m in the house…I’m coming’. When she still did not arrive, Ms U said she rang the doorbell repeatedly and could hear the sound of young children crying inside the flat. Ms L described putting her hand through the letterbox, which was grabbed by a child’s hand. She said she looked through the letterbox and saw a distressed child dressed in a vest in the hall whom she identified as D, with 3 other children behind him. She again heard the sound of children crying.17. Ms U and Ms L said they had been outside the flat for at least 15 minutes when the Applicant finally arrived from the direction of the lift. By this time Ms U said she was crying and demanding to know why the Applicant had left. All three women then entered the flat. Ms U said she pushed past the Applicant in order to get in first, a claim not challenged by the Applicant, but who then claimed under cross-examination that they had gone in together. Ms U said she had picked up D in the hall and he was sweating and moaning, as were all four of the very young children present. Ms L said a little girl with drops of milk in her hair held out her arms to her to be picked up ‘looking relieved to see someone.’ Ms L, who said she had never been to the flat before, said she noticed, amongst other things, uncovered electrical sockets, a carpet stuck down with worn duct tape, the door to the kitchen open when they entered and knives and a kettle in the kitchen. One child had climbed onto furniture and jumped onto her back.18. Ms U said she had had the opportunity...

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