MM v Ofsted [2007] EWCST 846(EY) (30 July 2007) 

MM

-v-

Ofsted
[2006] 846.EY

-Before-

Ms Melanie Lewis (Nominated Chairman)
Mr Ken Coleman
Ms Sallie Prewett

Decision

Heard on 12 June 2007 and 11 July 2007.  Devon

Representation

The Appellant was represented by Mr D Thomas of Counsel

The Respondent was represented by Ms K Olly of Counsel instructed by Geraldine Haack, Treasury Solicitors

Appeal 

1.	The Appellant appeals pursuant to Section 79M of the Children's Act 1989 against Ofsted’s decision dated 8 November 2006 refusing to waive a disqualification for her caring for children aged under 8. 

2.	For the last 22 years the Appellant has been the supervisor of a pre-school playgroup. Her husband Mr M was convicted in 1997 of 13 counts of indecent assault on a female under 16: contrary to Section 14 Sexual Offences Act 1956, 2 counts of indecent assault on a male under 14: contrary to Section 50 under the same Act and 4 counts of inciting a male child under 14 to gross indecency: Section 1 Indecency with Children Act 1960. Mr M is therefore disqualified under the Daycare and Childminding (Disqualification (England) Regulations) 2005 Schedule 2 paragraph 1 (i) (f) and 1 (ii). 

3.	Mrs M is also disqualified under Regulation 8 of the Regulations as she is living in the same household as her husband, a disqualified person. She applies under Regulation 9 which states:-

'9. - (i) where a person would be qualified by virtue of Regulation 4, 5, 7 or 8 that person has pursuant to Schedule 9 A to the Act, disclosed to HMCI the facts that would give rise to the disqualification, HMCI may give his consent to waive the disqualification for any of the following purposes:-

(a)	Registration as a childminder or provider of daycare;
(b)	Employment in connection with the provision of daycare;
(c)	Direct involvement in the management of the provision of daycare;

And that person shall not, in respect of the facts so disclosed, be regarded as disqualified for the purposes specified in HMCI's consent for the purposes of Regulation 4, 5, 7 or 8. 

(ii) any consent given by HMCI under paragraph (i) shall be in writing and shall specify the extent to which the disqualification is waivered.'

Those Regulations came into effect on 3 October 2005. 

Preliminary Matters

4.	We made a Restricted Reporting Order under Regulation 18 (I) of the Protection of Children and Vulnerable Adults Care Standards Tribunal Regulations 2002. This order prohibits the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England or Wales of any matter likely to lead members of the public to identify the Appellant, any child or any vulnerable adults. This order continues in force. Accordingly this decision is anonymised. 

Background

5.	Mrs M has been involved in the pre-school for 25 years, 22 years as the supervisor. The offences committed by her husband occurred in the 1970's, with children who were being fostered by his parents in the family home. Mrs M did not know her husband at this time. Her husband was not arrested until 1997, by which time they had been married for 10 years. How the offences came to light after so many years did not form part of the evidence.  Mrs M had 2 daughters by her first marriage. There was no evidence that during the first 10 years of the marriage or to date that Mr M continued or was suspected to have continued in his abusing behaviour.

6.	In 1997 Mrs M was aware that her husband's conviction and subsequent imprisonment would have an impact upon her employment. She discussed matters with JR, a friend and colleague at the pre-school who informed the chairperson of the pre-school committee. The Minister was also made aware, as the pre-school operates in a church hall. It was agreed that Mr. M should never come to the pre-school when it was in session and the children were present. Mrs. M’s daughters were interviewed by Social Services but no concerns arose. On the release of Mr. M from prison, the Local Authority who then held the regulatory role did not for reasons that are unclear disqualify Mrs M from her position.  Ofsted who subsequently took over regulation were only alerted to the position through an anonymous phone call in November 2005 and thereafter acted quickly to investigate the matter. Mr M is on the Sex Offenders Register until the middle of next year, albeit the expiry of that 10 year period will still prevent him from working with children and Mrs M being consequently disqualified. 

The Proceedings

7	At the commencement of the proceedings we clarified that Ofsted have no criticism of Mrs M whom they accept is an excellent manager at the pre-school. Further, there was no criticism of Mrs M for failing to reveal that she was a disqualified person, as it being accepted that she had misunderstood the regulations. At the commencement of the hearing we drew the parties attention that our search on the internet revealed the newsletter for pre-schools in North Devon, which drew Leaders' attention to the need to be aware of Regulation 8 of the 2005 regulations. 

8.	Mr Thomas made no criticism of Ofsted accepting that they did not become aware that Mrs M was a disqualified person until the anonymous phone call in November 2006 nor did he criticise the manner in which they investigated the case. 

9.	The basis of Ofsted’s refusal to issue a waiver is not that they have any basis for a current concern that Mr M is continuing to offend against children or that he is still of a mindset . They are concerned that Mrs M has minimised his offending, failed to share the full detail and extent of his offences with the pre-school committee, her daughters and the Minister and that in not taking her husband's convictions sufficiently seriously, she was unable to maintain the protection of the children in her care at all times. There was also a risk that children would not be alerted to the risk Mr M posed because they would associate him with Mrs M whom they regarded as a safe person.  There was also some evidence from the anonymous caller that Mr. M had contact with the pre-school when children were present.

10.	As a person on the Sex Offenders Register Mr M is visited and monitored by the police. On the first day of the hearing we became concerned that there might be information from a police report to the Strategy Meeting held on 14 September 2006, which was not in our papers. The police did not attend that meeting. When WPC Benbow gave evidence she did not feel able to tell us, on legal advice, whether there were current concerns about Mr. M. Whilst Ms Olly initially sought to argue that Ofsted placed its case upon the risk caused by Mrs M minimising her husband's offending we were concerned that if we were not aware of any current concerns about Mr M that there was a real risk that we might make an order that was contrary to the interests of the children in the pre-school. In particular we were concerned that the notes of the Strategy meeting recorded that Ofsted had received an anonymous phone call alleging that in a letter to a person whose name was deleted but whom Ms. Olly revealed, was Mrs M's daughter aged 22, that Mr M (Schedule 1 offender) had written that 'he believed that all children should have sex with their parents to learn about sex, and fathers should show their daughters how to achieve an orgasm'. The caller had stated that she knew from newspaper reports that Mr M had been convicted 9 years ago of sexually abusing children and had received a 4 year prison sentence. This alleged letter contained terms that were very specific and seemed to us to be the talk of a paedophile. The allegation in the anonymous call had not been followed up.

11.	The hearing was adjourned by consent on the following basis::-

 “  that during the course of the evidence the representatives jointly sought the view of the Tribunal who indicated that on the evidence they would not be in a position to assess current risk in the absence of disclosure by Ofsted as to the full details known by them as to the content and detail of a letter referred to in the Case Strategy Meeting at page 114 of the bundle and the log note of the call from the anonymous caller.”  

13.	By consent we made a third party disclosure order pursuant to Regulation 12 Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 requiring the Devon & Cornwall Constabulary to disclose to the Treasury Solicitor the confidential police report supplied to the Strategy Meeting on 14 September 2006 in relation to Mr M by 4 pm on 18 June. Further by the same date we required them to disclose copies of the most recent risk assessment made upon Mr M in relation to his registration on the Sex Offenders Register and maintained at (anonymous) Police Station by the same date. 

14.	At the request of Mr Thomas we adjourned the hearing so that Mrs. M could have an opportunity to consider the evidence and to consider her position. 

15.	By email dated 18 June 2007 Ms Griffiths, Senior Legal Adviser, Devon & Cornwall Constabulary advised the Tribunal that she sought to vary the order for reasons that if necessary could be set out in a witness statement. The objections were that the confidential police report was essentially a Risk Management Plan, which set out the measures to be pursued to monitor the Appellant's husband's risk. It contained extremely sensitive information about what visits and surveillance should be undertaken. Neither document had been viewed by either the Appellant or her husband and the Constabulary took the view that the successful monitoring of Mr M would be significantly threatened if these documents were disclosed. In addition the Devon & Cornwall Constabulary objected to the use of these documents in Care Standards Tribunal proceedings. They were created for the specific and limited purpose of a police assessment of the risk posed by the Appellant's husband and how best to manage that risk. It was based on static data available at the time of the assessment and relevant to a limited set of circumstances. If they were disclosed to the Tribunal they could be considered and relied upon for very different circumstances. 

16.	At the adjourned hearing neither party sought disclosure of those documents. We were content that the order should be varied when Ms Olly was able to assure us that there was no information known to Ofsted through its attendance at the Strategy Meeting that would indicate that there were any current additional risks known about Mr M. Ms. Spiers, the Ofsted case manager confirmed that with our permission, when she gave evidence.

The Evidence heard

17.	The first witness was WPC Benbow. Mr M is coming to the conclusion of his 10 years on the Sex Offenders Register and she has worked on the case for the last 4 years. Her view communicated to Ofsted and part of their reasoning was that Mr M minimised his offending and did not see himself as a sex offender. He saw them as people who should 'have their hands cut off'. She was concerned in her conversations with the Minister that Mr M had not fully disclosed the extent of his offending. She had never met Mrs M but her colleague had visited the home. When cross-examined it became clear that WPC Benbow felt constrained as did other witnesses as to what she could reveal.  She did not feel able to answer whether on the most recent Thornton Risk Assessment, Mr M was assessed as high or low. She was however able to confirm to us that no Multi Agency Public Protection Arrangement  (MAPPA)  had been carried out in the last 4 years. 

18.	We next heard from Ms. Bailey, the Assistant Divisional Manager in the Compliance Investigation and Enforcement team and one of the 2 managers who ultimately made the decision not to issue a waiver. She had never met Mrs M who was interviewed by Ms. Moyse and Ms. Dingley on 17 October 2006. When cross-examined, Ms Bailey was not able to be specific as to how many other waivers had been issued. Over the adjournment a second statement rectified this gap in the evidence. Since the Regulations came into force, the Waiver Panel had dealt with 100 cases, agreeing to 87 of these. The majority came from people disqualified by virtue of having their registration as a provider of daycare or childminding either refused or cancelled, generally due to failing to pay a fee or to respond to communications. Fifteen were made by people like Mrs M disqualified under Regulation 8. Seven were from people working in daycare and eight from childminders. Five of the applications from people working in daycare were agreed, one with conditions. Therefore five waiver applications under this Regulation have been refused of which Mrs M's was one. 

19.	Ms. Bailey acknowledged the difficulty of Mrs M's position but unless she could understand the nature and extent of Mr M's offending she could not have sufficient recognition of the risk. She acknowledged the difficulties of conditions, whereby information was disclosed to a changing committee, usually made up of mothers whose children attended the pre-school.

20.	Ms. Moyse was the note-taker at the interview on 17 October 2006. Her colleague Ms. Dingley has since retired.  She agreed that Mrs M was very nervous on that day. There was an issue in the papers about this meeting and whether Mrs M had been told by Ms. Spiers that she would have to discuss her husband's offending. That issue narrowed before us, because Mrs. M accepted she had been warned, but hadn't understood she would have to give details. Ms. Moyse did not know the full extent of the offending, as she did not have the antecedents. Mrs. M was asked open questions about the offences but not challenged on her statement of what had happened. Mrs. M was asked about the letter referred to in the anonymous call but she found it hard to respond to a question when Ms. Moyse could not give her detail. 

21.	At the resumed hearing, Ms Spiers, the case officer in the Compliance Investigation and Enforcement Team gave evidence of the communications she had with Mrs. M before the decision was taken.  The decision was not based on one interview although she accepted it was only on the morning of 17 October 2006 that she was able to speak to Mrs M to confirm the arrangements for a meeting that afternoon. On 19 October she had a discussion with WPC Young who confirmed that she had spoken to Mrs M about all of Mr M's convictions and it was inaccurate to say, as she had that the offences were against teenage girls when Mr M was himself a teenager. The offences he pleaded to involved children between the ages of 6 and 18 and he was between 18 and 22, although he was considerably older on some of those counts not proceeded on.  At Ms Spiers' invitation, Mrs M phoned on 7 November 2006 after the panel had reached their decision. Ms Spiers was concerned that Mrs M continued to demonstrate that she was minimising the potential risk to children by questioning the decision. She didn't think the offences committed so long ago were relevant and that the Inspector should be more concerned with the present. When sentencing Mr M the Judge had said that he was 'not a paedophile but had done something he should not have done when he was a young man'. 

22.	During the adjournment Ms Spiers interviewed Mrs M's two daughters R now aged 25, single and living away from home and her sister L aged 27, married with 2 children aged 4 and 7. Ms Spiers accepted that both women had been honest. Neither had concerns about Mr. M being a risk to children. Ms. Spiers was concerned that L had made a decision to leave her 2 young children with her mother when Mr M was present without having a full understanding of the background, albeit she may have made the same decision even with a complete knowledge of his offences. R does not get on with Mr. M who now follows a very fundamentalist Christian faith, which she does not share.  Ms Spiers who has a background in social work, felt proscribed in what she could discuss with both women because of data protection concerns. Mr Thomas put it to her that she could have at least discussed the indictments, as they are a matter of public record. She had not appreciated that and agreed but she might have got more if she could have been more specific. Both women had been interviewed by Social Services at the time of Mr M's conviction. L had been visited again by Social Services when her younger child was born and told 'it was on her own head' if she left her children in her mother's care when Mr M was around. 

23.	Mrs M was clearly very nervous when she came to give evidence. She was aware of the conditions placed on Mr M by being on the Sex Offenders Register, albeit this was only reporting annually to the police and having to notify if he was away for more than 10 days. She accepted that she had not acquitted herself well in the interview with Ms. Moyse and had realised that as soon as she had left the room. She had not fully appreciated that she would have to discuss the offences in detail which she found difficult. Even  when Ms Olly asked her to say what they were, she said that she didn't have to say the words as they were all in the papers. She explained that she made a distinction in her private life where she agreed that she may have had to minimise Mr M's offending but that was to ‘preserve my  sanity’ and to be able to live with him. The marriage would have ended if she had any reason to think Mr. M was still offending or inclined to do so. She was clear that she didn't minimise the offences in her professional work. She agreed that she had not always told those she worked with the full extent of his offending and they had not asked. She was ashamed and she found it difficult to 'hang out my family's dirty laundry'. With hindsight she might have left the job at the time of Mr. M’s convictions because of the position it put everybody in at the playgroup. Since 1997 she hadn't been questioned about these offences nor had any concerns come to light. She had not realised she would be perceived as a risk through association. She agreed there could be risk if they went out together but since being released from prison Mr M has lived virtually as a recluse. He would always be on the Register as far as she was concerned. She had not had any professional help at the time the original allegations were made but had had support from family and friends. She would never leave her grandchildren alone with him. 

24	The evidence from the Appellant’s witnesses confirmed that the pre-school adheres to National Guidelines and has safe systems in operation so that neither Mr M or anyone else could not enter during sessions without a worker being aware.  Mr. M had stuck to the agreement reached on his leaving prison and never came to the pre-school when children were there. The Minister was aware that he had been there on 2 or 3 occasions during the last year when Mrs M who also cleaned at the premises had his assistance with tasks such as fitting light bulbs. Mr. M had also done some work in the church garden. He also went to services at the church but Mrs. M said that was no longer the case. 

25.	Mrs R has had extensive dealings with the playgroup over the last ten years and is still giving some administrative support. She is also a personal friend of Mrs M who like the other witnesses spoke of her kindness. She didn’t think that she needed to know the exact detail of the offences and had only realised recently, through these proceedings how young some of the children abused were. She confirmed Mrs M's evidence that the only time Mr M had ever come to the playgroup was to inform her of the sudden death of a close family member as he didn't think she could receive that information over the phone. He left immediately.

26.	By agreement the Minister did not attend in person but gave his evidence by telephone. He also had only learnt more recently that the children were younger, although he too had not asked Mr M or Mrs M for specific detail. Mr M was very ashamed of his activities. He felt very guilty about them and now follows a fundamentalist faith, which the Minister does not follow. Over 20 years there was no evidence that he was aware of that Mr M had behaved inappropriately in or around children and in the light of that and his conversations with him he believed that they had done all that they could to protect the children who attend the playgroup.  The congregation had raised no concerns with him and felt very supportive of Mrs M. He therefore concluded that Mr. M was a low risk.

27.	Mrs B who works at the pre-school spoke in detail about the security strategies in place at the pre-school which being on church premises is used for other community activities in the week. She also did not know the full detail of the offences. The committee was very transient. They understood the risk and concern of Ofsted about association. Mrs M had presumed when she went to the meeting with Ofsted that they had knowledge of the offences.

28.	We next heard from Mrs B, a committee member at the pre-school. She too thought the offences were in relation to girls when Mr M was 18. She didn't see the risk through association but was clear that the Pre School were taking full and proper measures.  .

Submissions

29.	Ms Olly confirmed that there were no issues about the quality of Mrs M's skills. This was a difficult decision for Ofsted and made with regret.  Mrs M in minimising the offences or her witnesses’ in failing to know the full facts, had failed to demonstrate that they understood the potential risk.  Ofsted had not taken into account the anonymous complaint. WPC Benbow had highlighted that Mr M was in denial and grooms those around him to similarly minimise his offences. Mr M was a risk, despite his Christian faith. 

30.	Mr Thomas highlighted that this case had only come to light through a number of system failures. He accepted the anonymous phone call was not part of Ofsted’s decision making process, but the trigger for the investigation process which was properly made. He also accepted that had Mr M been sentenced today, under different legislation, he would have received a heavier sentence. Given that in fact he only served 6 months it was perhaps understandable that a layperson might not think his offences were of the most serious. Whilst the witnesses had not known the full detail they knew sufficient to be aware of the risk posed by Mr M.  Strategies had been put in place and kept to by the pre-school and its staff and Mr. M.  Mr M must remain a life-long risk because of his convictions, but save for that fact, there was no new evidence. Any current risk was minimised as Mr M lived at a known address. Mr M had no social life or life outside the home so whilst possible, there was little real risk with children associating him with Mrs. M, a known and trusted figure in the local community.  No complaints or concerns had been raised by Mrs M's daughters, one of whom at least had no reason to protect her step-father whom she did not get on with. The police had told L when her first child was born of the risk so it could not be said that she was in ignorance of concerns. Mrs M had clearly said that she was reticent to talk about the offences but that they revolted her. 

The Law

31. 	At the commencement of the hearing the parties agreed that the burden of proof is upon the Appellant to a balance of probabilities to establish that a waiver should have been granted. The hearing was de novo so we were not confined to a review of the facts before Ofsted at the date that they made their decision.  Pursuant to s. 79 M Children Act 1989 the Tribunal could confirm the decision or allow the appeal with or without conditions.

Conclusions

32.	We have decided to allow this appeal subject to attaching very stringent conditions to Mrs. M’s registration. The parties drafted the terms of the letter to be shown to staff, in the event that we allowed the appeal.  As far as we are aware it is the first time that the tribunal has considered an appeal against refusal to issue a waiver. However this case turns on its own facts.  We have taken into account the 2005 Regulations but they provide no guidance as to the factors to be considered.  The pre-school is complying with the requirements set in the Day Care and Childminding (National Standards) (England) Regulations 2003 No: 1996. Therefore all pre-schools should take the same steps to prevent non staff members entering the group when it is in session.  As an expert Tribunal we have taken account our background knowledge of the very real difficulties of protecting children against the activities of paedophiles who may act in a way that is both covert and subtle. 

33.	We start from the position that because of his convictions Mr. M is and will continue to be a risk to children. The more difficult issue is to measure that risk against Mrs. M’s wish to continue to earn her living as a pre-school leader, a job she has done well, for the benefit of children and the wider community for the last 22 years. There was no evidence before us from either Social Services or the police that there are any current concerns about Mr. M 

34	In deciding this case we find it relevant to examine how the current situation arose. Mrs M did not know Mr M at the time the offences were committed. That is a distinguishing feature of this case. 

35.	In our understanding of the way a paedophile might operate, it must be asked whether Mr M married her, a woman with 2 young daughters, because he still retained a sexual interest in children. We are satisfied that there is no evidence that Mr M's offending behaviour continued or that that was his mindset. Whilst there might be reasons at the time these offences emerged, in 1997 why Mrs M's daughters, might have felt restrained from speaking out, they are now both 10 years older and neither makes complaint against him about matters which would be relevant to our assessment of any current risk Mr M poses to children.

36.	It therefore appears that Mr M's offences were situational in the sense that they were carried out whilst living in his parents' home. We had no information about how the offences came to light and the circumstances in which the children, now adults, had come to complain twenty years later. 

37.	Mr. M’s offences were very serious in the scales of abuse in that they were committed over a period of time and against very young children. We entirely accept the concerns expressed by Ms Bailey and Ms Spiers that Mrs M widely misses the mark when she describes these offences as a “bit of something that went on that shouldn't have done when he was a teenager”. Mr. M was between 18 and 22 on the counts that he pleaded to and as old as 27 on the allegations not proceeded on. 

38.	We have no difficulty accepting that Mrs M has minimised the offences.  The Respondent was very concerned by this and there can be no criticism of them for weighing that factor heavily in the balance in their decision making process. However we find it relevant to look at why she was minimising what Mr. M had done and then look at whether that would mean that she could not properly address the risk Mr M poses to children. We have looked at a number of factors. Whilst we accept that Mrs M was warned that she would have to discuss his offences when interviewed by Ms. Moyse we accept that she didn't realise she would have to go into specific detail. It was clear even when she gave evidence before us that she found it very difficult to do that. When asked in cross-examination by Ms Olly to say exactly what Mr.M  had done, her response was to say that it was all written in the papers and 'you know what it is'. This may stem from her revulsion at his offences, which she has consistently expressed.  It may also be that she finds it difficult to discuss exactly what happened which would require the use of sexual terms.  She was interviewed only once and neither interviewer had the full facts so they could not specifically challenge Mrs M’s recollection even if they had thought it appropriate to do so. Mrs. M said that she would have found it easier to respond to direct and more specific questions. 

39.	As properly conceded by Mr Thomas, Mr M is a lifelong risk to children because of the nature of his offences. This risk will continue even when he comes off the Sex Offenders Register next year and will still mean that Mrs M is a disqualified person unless a waiver is ordered. We examined very carefully whether Mrs M has shut her eyes to the risk Mr M poses. The evidence supports that Mrs. M and her family were totally unprepared for the emergence of these offences in 1996/7. She has had the support of family and friends but had to cope as best she could. She has we accept, had to find an acceptable level of truth in order, as she put it, to preserve her sanity and to continue in her marriage. However we recognise that in her professional life she is alive to the risk and that she is justified in not regarding it as a high risk as no new information has come to light in the last ten years. 

40.	Further, the pre-school has in place proper precautions but these are to exclude all unauthorised adults not just Mr M. We accept that Mr M has not come to the premises when children are present, save for one occasion which we understand, was exceptional, as a very close family member of Mrs M had died. Ms. R became distressed when recalling that incident because Mr M had left immediately, which meant that Mrs M had to walk home alone having received unexpected bad news. Ms. Bailey confirmed that Ofsted would only inspect every 3 years, which enforces in our mind the need for the pre-school to monitor the risk posed by Mr. M and others who may also be an unknown risk.

41.	We accept Mr Thomas' submission that whilst the witnesses from the pre-school had not sought specific detail about Mr. M’s offences they knew enough to be aware of the general risk. We are satisfied that they have not allowed their regard and in some cases, personal friendship with Mrs M, to cloud the principle position that those who are on the Sex Offenders Register are a threat to children. 

42.	We further accept Mr Thomas' submission that whilst there is a risk that Mr. M by his association with Mrs. M will be seen as safe, that is not the actual case. Mr M appears to have lived with what the Minister referred to as his deep guilt and remorse over what happened, by becoming a virtual recluse. He appears to seek atonement for what he sees as his sins by following a very fundamentalist Christian belief. All the witnesses called by Mrs M, who have lived in the area for some years, confirmed that that they did not see him in the community and if they called at the house he would often leave the room. 

43.	We gave careful consideration to the views expressed by WPC Benbow, who felt Mr. M was a risk as he did not accept that he was a sex offender and that he groomed those around him to take the same view. However we did not understand that view to be based on any more than infrequent contact. She was concerned that Mr M was not wholly truthful with the Minister, who accepted that he did not know the full extent of his offending although he had not asked for the full detail.  Whilst the seriousness of grooming by those with a sexual interest in children cannot be underestimated, this Tribunal was presented with no evidence that Mr. M is grooming in order to actively pursue that interest.

44.	The passage of this case has meant that Mrs M has yet again had to confront what for her was a very unpleasant truth. She told us that with the benefit of hindsight she might well have resigned when her husband was convicted to save the pre-school the trouble that this has caused. When Mrs. M first met with Ms. Moyse she was understandably reluctant to have detail of her husband's offences revealed to everyone on the committee. We make no criticism of her for that because this is very sensitive information, which if placed in the wrong hands, could be misused. Ms. Bailey acknowledged that was a problem with no obvious solution and we agree.  However we take her consent to the conditions drafted by Counsel as her willingness to confront the past because she does accept that Mr M is a risk to children and will always be so. She has a choice. If she wishes to continue as pre-school leader she must allow the detail of the offences to be known and there are no guarantees that this information will be kept confidential by those it is disclosed to. This Tribunal also points out that the conditions attached to the waiver mean that Mrs M remains disqualified from working with children in all situations except the pre-school.

45.	Whilst this is the first waiver case we can give little guidance, save that this case has highlighted some concerns, which we mention as they are likely to arise again. The Tribunal cannot be asked to make decisions, which concern risk to children without having the key facts from the Police and Social Service Departments. Safeguards can be put in place if necessary as set out by the President in Re AG  (Third Party Directions) [2005] 603.PC . It is reasonable to expect Ofsted Inspectors who conduct key interviews do so with a full understanding of the facts, otherwise their conclusions may be open to challenge. It should also be clarified what documents are protected by the Data Protection Act.  It is perhaps surprising given the importance of this interview to Ofsted in its investigation and to Mrs M, whose livelihood was at stake, that she was not interviewed more than once by officers with specific experience of conducting investigations into child abuse. We would expect that anonymous calls are checked out as far as they can be. The call sheet recording the call was given to us after the adjournment when the information was checked out with Mrs. M’s daughters who did not support it and the detail as to their age and the length of the prison sentence is incorrect.  We have found that Mr M has not come to the pre-school premises when children are present ,so that information is also wrong. 

46.	Accordingly our unanimous decision is that the appeal is allowed.

APPEAL ALLOWED. 

ORDER: Ofsted do give its consent in writing to waive disqualification of Mrs. M as the registered leader of a pre-school subject to the conditions set out hereto.

M E Lewis
(Nominated Chairman)
Ken Coleman 
Sallie Prewett 

Date: 30 July 2007