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CHILD PROTECTION: Ofsted v M [2009] UKUT 89

Date:17 JUN 2009

(Upper Tribunal Administrative Appeals Chamber; Carnwath LJ, Hickinbottom J and Upper Tribunal Judge Rowland; 24 April 2009)

The child was found to have leg and skull fractures, and was taken into interim care; the injuries had occurred while he was being cared for either by the parents, or by the childminders. The childminders were served with a notice of a 6-week suspension of their registrations. The police interviewed the childminders under caution, advising Ofsted that the childminders had been very helpful. It was known that the local authority had concerns about the mother. Further medical evidence was expected, so the police investigation was still ongoing. The tribunal allowed the childminders' appeals against the continued suspension of their registration. Ofsted appealed on a point of law, although it was not actively seeking the re-suspension of the childminders.

The threshold for suspending registration had plainly been met when the notice was served; however, by the date of the tribunal hearing suspension was no longer justified because there was no longer a real possibility that evidence sufficient to support enforcement action against the childminders would emerge from any investigation. It was clear from the terms of the legislation that suspension was intended only to be an interim measure, and the threshold was correspondingly low. The language of the relevant regulation was different from the language used in any provision of the Children Act 1989; the relevant concept was belief rather than suspicion, but it was belief that there 'may be a risk' of harm, rather than a belief that the child was suffering or was 'likely to suffer' significant harm. However, the mere fact that the threshold had been passed did not necessarily mean that the power of suspension was to be exercised. It was not the case that, in all cases, a suspension imposed during a police investigation ought to be maintained until that investigation was formally concluded. Ofsted should focus on the steps it might need to take, depending on the outcome of any investigation, because a suspension imposed on the ground that there was an outstanding investigation could be justified only for as long as there was a reasonable prospect of the investigation showing that such steps were necessary. If Ofsted wished to resist an appeal against suspension on the ground that further investigations needed to be carried out, it had to make it clear to the tribunal what those investigations were and what steps it might wish to take depending on the outcome of those investigations. The tribunal must consider whether any continuation of the suspension had a clear purpose, and therefore was capable of being proportionate having regard to the adverse consequences not only for the childminder but also for the children being cared for and their parents. The crucial fact in this case was that by the tribunal hearing, neither the police nor any other investigation had thrown up any evidence against the childminders to support enforcement action.