IN THE FIRST-TIER TRIBUNAL

CARE STANDARDS                                                                   [2008] 1396.EYSUS
[2008] 1397.EYSUS

GARY MARTIN
WENDY MARTIN                                  Appellants

and

OFSTED                                         Respondent

Before:
Mr. Andrew Lindqvist (Nominated chairman)
Mr. Jeff Cohen
Mrs Denise Rabbetts

Heard on the 12th November 2008

The appellants were represented by Mr. K. Rowley instructed by William Graham, solicitors.
The Respondent was represented by Miss S. Broadfoot, instructed by the Treasury Solicitor

Mr. and Mrs. Martin appeal under regulation 12(1) of the Childcare (Early Years and General Childcare Registers)(Common Provisions) Regulations 2008 against the suspension under regulation 8 of their registration as childminders.

The Tribunal makes a restricted reporting order under regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 and schedule 4, paragraph 3(2)(a) of the Transfer of Tribunal Functions Order 2008, prohibiting the publication (including by electronic means) of any matter likely to lead to the identification of any child in relation to these proceedings.

Background

1. Mr and Mrs Martin have been childminders for a number of years.  Mrs Martin has been registered as an early years childminder since the 6th January 2003, Mr Martin since the 1st October 2004.

2. Mr and Mrs Martin were well regarded as childminders.  There have never been any concerns about them in their practice, and they were felt to be carers who very much followed any procedures that were laid down. The outcome of Ofsted inspections of their services as childminders was satisfactory in respect of Mr Martin and good in respect of Mrs Martin.  They had a substantial training record including safeguarding, child protection and medical procedures. Both were proactive in the local childminding support group in which they were held in high regard.

3. In September 2008 Mr and Mrs Martin regularly cared for nine children (though not all at the same time).  One of those nine children was the nine month old son of neighbours and friends of Mr and Mrs Martin (hereinafter called 'A').

History

4. On the 21st September 2008, A’s mother noticed a swelling on the side of his head.  She and his father thought at first that it was an insect bite, but no doubt wishing to be sure, they took A to the local hospital.  A’s skull was examined by X-ray.  The images were examined first by a radiologist said to lack sufficient experience to interpret them.  His conclusions, if any, are not known.

5. On the 22nd September, a more experienced children's neuro-radiologist examined the X-rays; his conclusion was that the X-rays showed a normal variation in A’s skull.

6.  A was discharged from hospital on the 22nd September, but returned for a full skeletal survey on the following day. The result of that was examined by Dr Broderick, who felt that there may have been a metaphyseal fracture of A’s left femur.  He recommended a further X-ray in two weeks’ time.

7. On the 25th September OFSTED closed its file on the matter and wrote to Mr. Martin telling him that no further action would be taken.

8. On the 16th October A’s X-rays were reviewed by Dr Chapman, a paediatric radiologist and it was confirmed that there was a fracture of his left femur.  In the view of Dr Louise Wells, a consultant paediatrician, who attended a strategy meeting on the 20th October, such a fracture is likely to be the result of a 'sharp turning or twist injury or yanking motion which would have hurt (A). All medics would agree that a metaphyseal injury would be non-accidental, although they would not be able to give a timescale as to when the injury is likely to have occurred'.  As to the possible skull fracture, Dr Wells said that ' in a room full of consultants, half would say that (A) had a skull fracture and half would say that he did not '.

9. On the 16th October, OFSTED sent letters to Mr and Mrs Martin suspending their registration as early years childminders.  Those letters were sent under section 69 of the Childcare Act 2006, and the Childcare (Early Years and General Childcare Register) (Common Provisions) Regulations 2008.  Regulation 8 provides the power to suspend.  Regulation 9 provides that the power may be exercised if the Chief Inspector 'reasonably believes that the continued provision of childcare by the registered person to any child may expose such child to a risk of harm'.  'Harm' has the meaning given to it in section 31(9) of the Children Act 1989 – “…….ill treatment or the impairment of health or development……”

Legislation

10. It is worthy of note, briefly, that the 2008 regulations differ from their predecessors, the Childminding and Day Care (Suspension of Registration) (England) Regulations 2003 which provided that the Chief Inspector might exercise his suspension power if 'he has reasonable cause to believe that the continued provision of childminding or day care by that person exposes 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)'.  The purposes are to allow time i) for investigation and ii) for the elimination of the risk of harm.

11. The main difference is the absence in the new and current (since the 1st September 2008) regulations of any mention of the purpose of suspension. Neither Counsel propounded any material distinction between the 'has reasonable cause to believe' of the 2003 regulations and the 'reasonably believes' of their 2008 replacements.

Evidence

12. The question for the Tribunal, posed with a welcome simplicity by the new regulations, is that of reasonable belief that continued childcare by Mr and Mrs Martin would expose any child in their care to a risk of harm. 

13. Mrs Helen Norry, Area Manager of OFSTED Midlands Region, was the only witness to give oral evidence to the Tribunal. She confirmed her two witness statements, in which she recites the history of A’s medical attention.  In paragraph 10 of her first statement, she refers to the opinion of the doctor who reviewed A’s X-rays on the 16th October. In her oral evidence, she confirmed that that doctor was Dr Chapman. His opinion was that A had fractures to his skull and leg, probably occurring on separate occasions.  A's parents had not provided any explanation for the injuries. The only other people who had cared for A were the appellants.  Children's Services hoped that OFSTED would suspend the appellants while investigations took place.

14. On the same day, the 16th October, a review meeting was called, and, in the light of the unexplained injuries to A, it was decided that continued childcare by the appellants might pose a risk of harm to children.  OFSTED therefore decided on  suspension.

15. In paragraph 20 of her first statement, Mrs Norry refers to medical opinion, more equivocal than that recited in paragraph 10 of her statement upon which the decision to suspend was, to a great extent, based.  In her second statement, she says that Social Services had obtained an interim care order in respect of A, giving them eight weeks to decide what to do, they were considering seeking a full care order.  There were concerns about A’s mother and her over exaggeration of her illnesses.

16. This may be reflected in the reluctance, at an earlier meeting, of an NHS nurse to share with OFSTED, information about A's parents and patient records.

17. In her oral evidence, Mrs Norry told the Tribunal that A was with foster parents and that in the light of the results of investigations, Social Services and the police would decide on future action.  The suspension was also for the purpose of aiding those investigations.  It was possible that OFSTED would lift the suspension. If so help and support would be offered to the appellants to deal with the consequences of the suspension.  In answer to the Tribunal, she said that such help and support would also be offered if the Tribunal lifted the suspension.  Her view and that of the police was that the appellants had consistently been helpful, forthcoming and co-operative.

18. Mrs Norry said that the decision to suspend was based on Dr Chapman's evidence; Dr Broderick's view came later.  She mentioned that there was nonetheless an unexplained injury to A, a child cared for by his parents and the appellants and that time had to be allowed for investigation by police and Social Services.

Conclusions

19. It is plain that much investigation remains to be done into the circumstances.  It would be wrong of the Tribunal to attempt to anticipate any findings which may result, not least for the reason that any such guesswork would be likely to prove inaccurate. It is agreed that the respondent carries the burden of proof.

20.  Nonetheless, certain features of the evidence as it, at present, stands are compelling.  First, there is the division of medical opinion as to whether A had a skull fracture at all. Second, there is the evidence that the leg fracture (which all medical opinion supports), passed unnoticed until revealed by X-ray on the 23rd September. No treatment for it was thought appropriate and no effects are noted after it was detected. Notwithstanding the fracture, the file was closed on the 25th September by OFSTED and nothing (except further X-rays) was done until mid October. In particular, it is not suggested that Social Services sought an Emergency Protection Order.

21. It appears to the Tribunal that Mrs Norry relied too heavily on the view of Dr Chapman and did not take a balanced view of all the medical evidence, though it is only fair to point out that Dr Broderick's view arrived at a relatively late stage.  She also, again understandably, had in mind the 'purposes' provisions of the 2003 regulations, which are absent from the 2008 regulations which govern the decision to suspend the appellants.

22. The position as it appears to the Tribunal, is that A has possibly suffered a skull injury, possibly not.  He has suffered a leg injury, but its only manifestation has been on an X-ray image.

23. Although it is no doubt right to say that A has been, for the vast majority of the time in the care of either his parents or the appellants, the Tribunal has some doubts about whether it can be said for certain that no one else had any opportunity to maltreat A or that an active nine-month-old boy could not have acquired a metaphyseal fracture without abuse.

24. If it is to be assumed that physical abuse caused the fracture, it is certainly probable that either the appellants or A’s parents were the cause. There is no question mark against the appellants, whose records are not only unblemished, but are positively creditable. The Tribunal has four glowing tributes to their professionalism, care and integrity.  

25. In those circumstances, asked whether it is reasonable to believe that the continued provision of childcare by the appellants to any child might expose such a child to a risk of harm, the Tribunal unanimously answers in the negative and accordingly directs under the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008, regulation 12(2)(b) that the suspension of the appellants shall cease to have effect.

26.  The appeal is accordingly allowed.

Andrew Lindqvist
Jeff Cohen
Denise Rabbetts