Emma Waldron sees childminder suspension lifted in Ofsted appeal

21st March 2023

3PB education barrister Emma WaldronEmma WaldronCall: 2011 (pictured here) recently saw her client, a registered childminder, successfully appeal against her continued suspension by Ofsted. Emma was instructed by Francesca Snape at Markel Law in Manchester. The First-tier Tribunal Care Standards hearing was held in front of Tribunal Judge Ian Robertson and two specialist members, Michele Tynan and Dr David Cochran.

The tribunal were taken by Emma to the Upper Tribunal decision in Ofsted v GM & WM [2009] UKUT 89 (AAC) in which it was held that although regulation 9 set a threshold, the mere fact that the threshold was passed did not necessarily mean that the power to suspend in regulation 8 must be exercised. Regulation 11 required the suspension to be kept under review and a suspension imposed on the ground that there is an outstanding investigation could only be justified for as long as there was a reasonable prospect of the investigation showing that such steps were necessary. It was not the case that the suspension should automatically be maintained until the formal completion of a police investigation. The Tribunal in the case stated that: "What is important is that Ofsted should keep its focus on the steps it may need to take depending on the outcome of any investigation, because a suspension imposed on the ground that there is an outstanding investigation can, in our judgment, be justified only for as long as there is a reasonable prospect of the investigation showing that such steps are necessary."

This tribunal here held that it was surprised that the proposals the childminder made have not been accepted and used as a basis for negotiating a constructive way forward, that safeguards minded children, whilst allowing her to pursue her career; and rejected Ofsted’s objections to the scheme advanced by her. The tribunal concluded that: "There is a really difficult balance to be drawn in cases such as this. To a degree Ofsted cannot win whatever they do. They must take safeguarding seriously and must be seen to act where allegations of abuse are made in respect of a child. They must however act proportionately. They are also dealing with a persons livelihood and their actions can cause grave financial hardship and serious emotional harm to the suspended child minder. It is their duty to look for ways to reduce the risk of harm in this case. That option has been presented to them and they have in our view failed to analyse the true risks and how the plan ameliorates that risk to an acceptable level."

To read the full decision from the tribunal, please click here.

If you wish to instruct Emma or see about her availability, please email her clerk Chris Mitchell on [email protected] or call him on 020 7583 8055.