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Help! NCMA contract terminated with immediate effect

(28 Posts)
BeccaBoo1801 Tue 16-Nov-10 15:47:26

Hi,

I have just withdrawn my son from our childminders care with immediate effect because she had shouted and sworn at him and then shut him in the kitchen alone after he retaliated when her son kicked him (he has a big bruise). My son is beside himslef about the whole thing and point blank refusing to return.

She is denying that she handled the situation badly and that she swore, and says she will take me to court for the 4 weeks notice...

Surely I won't be expected to pay when she is responsible for causing the situation? I am a singhle parent/ full time student and I just don't have the money to pay 2 carers for 4 weeks.

Does anybody know how this works please?

Thanks

jendot Tue 16-Nov-10 15:56:39

Im afraid if you have signed a contract that states a notice period then you are by law bound by that contract!! (However apalling her behaviour may have been) unless you have proof...witnessess and it is something that a complaint can be made against her and upheld in a court then you don't have a leg to stand on Im afraid if she decides to persue.

Personally I would write a letter stating your reasons for removing your son in calm and professional way and why you feel able to return him to her setting for his notice period. I would send it by recorded delivery.

If she 'really' did swear at my son I would make a complaint to Ofsted.

jendot Tue 16-Nov-10 15:57:44

obv should read unable..not able!

OldLadyKnowsNothing Tue 16-Nov-10 15:59:54

How old is your DS? Bit dodgy breaking a contract on the word of a three year old, for example.

BeccaBoo1801 Tue 16-Nov-10 16:02:33

Thanks Jendot,

I have already made a complaint to her in a formal letter. I am considering complaining to Ofsted now but I really don't want to get her in trouble if I'm honest.

I really don't think my son has lied. He's 8 and we discussed the full implications of what he told me before I raised it with the childminder. I've been using childminders for 4.5 years now and he's never come out even close to that unhappy before....

I think you're right and I do have to go to Ofsted...

Thanks.

jendot Tue 16-Nov-10 16:08:22

Ok 8yrs old...So probably easy enough to get the 'real' story out of him.

Its not about getting her into trouble...making a complaint to Ofsted (as long as its a legitimate and not vindictive one) is about ensuring she is a suitable person and is behaving suitably as a cm..if she swears at your son who is 8 he can tell you...if she swears and shuts a 2yr old in the kitchen they can't! I WOULD report to ofsted if a cm swore at my son (speaking as a cm aswell as a parent).

You may find she does't persue you for the notice money...she is hopefully ashamed enough of her behaviour to let it drop.

BeccaBoo1801 Tue 16-Nov-10 16:14:40

I know, you're right.

She doesn't seem even slightly ashamed. She hasn't made an apology of any kind for her behaviour or for upsetting my son even though she's been looking after him for over a year now.

I've just had a text from her asking for the toy gun that my son borrowed from hers because he's finding it all so upsetting! I'm sure he is and I'm sorry for that, but that's more than can be said for her.

It's just so dissapointing, I trusted her with the most precious thing in my life...

Danthe4th Tue 16-Nov-10 17:04:39

Reading between the lines it sounds like the 2 boys were playing and it got out of hand and ended up in a scrap.
I think closing the door of the kitchen while she got the situation under control may have been a good thing if it calmed the situation down.
What exactly is your son saying she said as swearing to an 8 year old can mean different things. As I often say 'oh blast'or 'oh flip'and i get told off for swearing!!
If you have removed your child with good reason, which it sounds like you have then you won't be expected to pay. I would report but I'm not sure if they would speak to your son, it may be her word against his.
She has to reply to your complaint though so see what she says in that.

BeccaBoo1801 Tue 16-Nov-10 18:22:51

Thanks Dan,

I agree that it was sensible to sepearate them, but she left my son alone, hurt, to tend to her own. That's the part I disagree with.

Her exact words were "f*&%ing hell!" We never use language even close to this at home and I think the words combined with the temper frightened him....

She had replied to my complaint already, but has offered no apology at all and most of the letter concentrates on my refusal to pay (which I didn't even mention in my complaint to her).

I have decided to go ahead and lodge a formal complaint with Ofsted, it is no ok for her to behave like this and I will stand my ground on it irrespective of the money issue, although I intend to fight that too!

Shallishanti Tue 16-Nov-10 18:27:43

I would be very surprised if she took you to court!
Just don't pay her- I would guess that she is in breach of contract herself, by failing to provide what she had contracted to provide ie suitable care.

karen2010 Tue 16-Nov-10 19:16:21

maybe your son hurt her son more
which is why he got 1st dibs on here time

karen2010 Tue 16-Nov-10 19:18:28

are ofsted interest in over 8 ?

BeccaBoo1801 Tue 16-Nov-10 19:25:14

I'm not sure that's even relevant under the circumstances Karen...

stomp Tue 16-Nov-10 19:26:11

As you’ve made a complaint in writing to your childminder she now has to investigate the complaint and inform you of the outcome and any action she has taken within 28 days. She must make this written record available to Ofsted if they wish to see it. She may inform Ofsted of the complaint herself anyway as your complaint deals with some serious issues.Have you seen her complaints procedure?
Of course you have the right to withdrawal your son immediately if you feel he is in danger, however the childminder has the right to pursue you for full notice payment. Ofsted do not get involved in contractual issues and often receive unsubstantiated/malicious complaints from parents not wishing to pay their childminder- something to be aware of.

phipps Tue 16-Nov-10 19:29:27

You don't want to get her into trouble? hmm

minderjinx Tue 16-Nov-10 19:32:09

There is no way to know what really went on here. But anyone who thinks their own child can't lie, or even that they don't pick up and try out all sorts of choice snippets of vocabulary is sadly deluded. Childminders working alone are very vulnerable to misreporting and misunderstandings on the part of the children they care for. If the boys were fighting it would be understandable for her to react firmly to halt it in its tracks. It is easy to envisage that she might raise her voice and sound angry, and perhaps tell the other child to stay put while taking her own boy out to give him a talking to...and the minded child might think he was headed for a telling off at home. At eight years old, the child is old enough to make up or embellish a tale to try to deflect any blame for the incident from himself. His refusal to return could mean he is traumatised, but it could also mean that he is ashamed about embellishing his story or worried about the real truth coming out. The fact that the childminder is unapologetic could just mean that she has done nothing to feel guilty about, and if that is so, she is probably pretty angry about the accusations. You say she seems to be focusing on your refusal to pay, so she probably thinks you have fabricated this story to get out of giving proper notice and paying what you owe. Sadly, that is what a lot of people do. Assuming that is not your intention, I would suggest meeting with the childminder to hear her side of the story in detail and see if it rings true. You could take your boy along to gauge his reactions.

squirrel42 Tue 16-Nov-10 19:32:49

Ofsted will look at issues that affect the suitability of registered childminders, and swearing at a child and shutting them in another room is not on. However unless there are third party witnesses it's a case of he said-she said. Ofsted inspectors can write to the childminder or visit her and ask about it, but if she denies that it happened and says it's a malicious complaint because you don't want to pay the notice period fees then what can Ofsted do? They can't get involved in contractual issues and there is no proof either way.

One side says the care provided is not satisfactory or there was a specific inappropriate incident so the contract has been breached, while the other says that never happened and you have to fulfil your obligations in paying the notice period. It's a not uncommon stalemate and unless you can resolve it between you it'll end up in the small claims court. Other folks on here might be able to offer advice or experiences there.

"I've been using childminders for 4.5 years now and he's never come out even close to that unhappy before...."

It sounds like you have had some unfortunate experiences?

However if someone swore at my DC and shut them in another room, alone, hurt and upset, I doubt very much that I would worry about getting them into trouble, I would most certainly make an official complaint CM's are registered on Early Years register (under 5's) and Childcare Register (over 5s) some are on one or the other or both, however this could arguably come under a safeguarding issue in which instance Ofsted would refer it to the local safeguarding board who would take over the investigation, if they deam it necessary they will interview the other children the CM cares for (usually dependant on age) and report their findings, if any, and take the appropriate action.

BeccaBoo1801 Tue 16-Nov-10 20:41:50

Thanks everyone,

It's good to be able to look at it from different viewpoints and it has certainly clarified my thoughts on how to deal with the matter.

I was not provided with her complaints procedure, although I think I remember seeing it in her file. I can't say that I felt he was in danger, that would not be true. However, I do not feel that the care she provided to my son on that day was adequate and for that reaso I have now lodged a formal complaint.

I didn't want to get her in trouble! I felt that I knew her and I trusted her. I believe that she was acting out of character on that day but the more I think about it the more I feel that this doesn't make it ok, hence my decision.

Minderjinx - I appreciate your advice. I know they lie, of course they do but for a number of reasons it just doesn't follow on this occasion. Firstly, the childminder made absolutely nothing of it. In fact she didn't even bring it up, her son did. Secondly, before I made the decision to inform the childminder that he wouldn't be returning I discussed the consequences of those actions should he be making anything. Thirdly, his reaction when we got into the car that day would have been enogh for me without the previous 2 points!

I've never had any trouble before... Things happen, childminders are human, we all have good days and bad days. He's had the occasional moan, I've had the occasional moan and the childminder has had the occasional moan. What I meant is that he's never made a fuss like that in 4.5 years and it would make no sense for him to do it now without justification....

moogster1a Wed 17-Nov-10 09:27:49

My guess is she seems unrepentant because she doesn't see that she's done anything wrong.
probable scenario is that the 2 boys were scrapping/ arguing and she shouted "right, you in that room, you in the kitchen till you've calmed down.".
as for the swearing, it's possible that your ds has only just realised the effect of proper swear words, indeed might have only just learned that particular one and exaggerated her respose ( to deflect from the fact he'd been naughty)
Your ds might well have been impeccably behaved for the last 8 years, but unfortunately, bad behaviour tends to kick in at sme point ( when I was 10 or so I often told my dad how my mum was hitting me all the time; complete lies but I thought I'd get in first before she told him about my cheekiness / arguing with sister).
I'm also sure DS was genuinely upset, but if it was his first ever proper boloocking, he would be!
Believe me, kids don't behave or talk the same at home as they do at school/ in the playground / at CM's )
I'd pay the 4 weeks . In fact, I'd make him return to CM. She's probably gutted that an argument between 2 children is resulting in loss of income, no notice ( illegal under the terms of the contract, but she will hopefully be with Morton michel who will pay her the money, then chase you for the money on her behalf), and a possible career endning complaint to OFSTED.
By the way, if you complain, OFSTED will send someone round to inspect her, and if they find a single thing wrong ( eg. attendance records a day out, cerificate not on display) the complaint will be recorded as an upheld complaint which will be on her next inspection record for 3 years.
So, if you don't want to get her into trouble / wreck her livelihood, I would take the word of an 8 year old with a slightly larger pinch of salt.

mogs0 Wed 17-Nov-10 18:45:24

moogster - but if her attendance register is out or her certificate is not on display then she is breaking the terms of her registration and that's not down to the op.

Has your CM told you her or her ds' version of events?

vanitypear Wed 17-Nov-10 21:36:20

Moogster, your post is very one-sided. You seem to be assuming that everything the OP and her son has said is wrong.

Becca - what does the contract say about notice? Are there exceptions? Surely as Shallishanti says there has to be some argument that she is in breach herself as she has failed to provide appropriate care for your son.

Make sure you make a full record of your son's account of the situation (and yours) as soon as possible, and take pictures of his bruise.

I think I would look for an alternative CM - you have clearly lost all faith in her ability to look after your son. If this is the case, I would suggest to her that it is best on both sides you agree to part ways, in the circumstances it is not reasonable for her to demand payment in lieu of notice, and you will agree to take your complaint no further if she agrees not to demand it. That way you don't damage her reputation and standing with Ofsted, and you are not stuck paying twice over.

Niknaks1046 Thu 18-Nov-10 06:13:16

Hi Becca,

I'm just in the process of registering as a childminder so can see both points of view. If she reacted in that way then i think you are in the right to want to remove your son from the setting. Agreed we all have off days, but swearing at a child is not on.

Jendot is correct, if you have signed a contract then you are bound to it and if it went to court then you could possibly end up having to pay the 4 weeks plus the court costs (might be worth looking into this and checking the details of your contract)

Were you not given a parent pack when your son started going to her? Its a legal requirement for her to have a complaints procedure and it should be available to you at any time.

If you are not satisfied with her response then you are perfectly within your rights to go to Ofsted as thats what they are there for. Its possible someone else could have already made a previous/similar complaint about her and Ofsted would have details of this.

Only you know your son and if he was that distraught then something isn't right. I have an 9 year old step son and i can tell straight away when he's lying and he's not even mine.

Hope you get it sorted. Its not nice having to worry that your child is not happy in someones care. Good luck x

thebody Thu 18-Nov-10 09:52:37

I tend to agree with moongster, if she is angry and unrepentant she obviously feels she has done nothing wrong..

to be honest its intimidating to have to deal with 2 boys of that age fighting.. i am a cm, 5'2" and just under 8 stone... and boyd of that age can be very strong and ned firm handling!!! i would have definatly seperated them and indeed spioken very harshly to them...i wouldnt swear of course but you have no evidence that she did.

i find your attitude a bit puzzling.. if I really belived my cm had acted that way I wouldnt hesitate to report her.., you seem reluctant anbd that says to me that you dont fully belive your son either..

also tbh as a cm if you werent able to trust me or to discuss the matter in any way but just totally belive you son ,I would give you notice anyway and yes i would persue you for the money as well.. sorry

Mum2Luke Tue 30-Nov-10 12:59:59

I agree, I look after an 8 year old and he is constantly putting down my son (also 8) swearing and winding my son up, if he does say a swear word (usually f%$*king hell) I just quietly remind him we don't say words like that in my house and he usually apologises. If he says things which may upset or offend I take him aside and tell him that its just not on to say things like this. He comes from a family who frequently swear/ shout at each other etc so I can't blame him but he has to learn.

8 year olds do make up things and exagerate things, if I said dam I am swearing so I try not to, very hard when you are driving and someone pulls out in front of you!!

BeccaBoo1801 Sat 29-Dec-12 16:38:49

I've just found this again and thought I would update for anyone that's interested or finds themselves in a similar situation!

OFSTED did visit the childminder following my complaint, although they stated that it was a general inspection and not an investigation into my report because of my son's age.

OFSTED did not find any problems and no further action was taken.

The childminder sought legal representation and I received a number of letters insisting that I pay. Having secured copies of policies etc, which I had not been provided with, I replied to those letters stating that, in accordance with our care contract, she was in breach. I did not take legal advice as I felt that breach was obvious but I made it clear that if she wished to continue down this route I would defend my position on the matter.

I received no further correspondence from the childminder or her solicitor....

Belated thanks for all of the advice you provided, and to commenters like Moogster, who made me all the more determined to stand my ground!! smile

MrAnchovy Sun 30-Dec-12 02:08:36

Thanks for coming back - I'd just like to say that virtually everything that other people posted in this thread was wrong, in case others refer to this thread.

In short, a simple breach of contract by one party (the childminder) does not allow the other party (the parent) to breach the contract by not giving notice BUT a breach that is so fundamental that it is unreasonable for the contract to continue may lead to instant termination.

In this situation no "proof" is needed, a court will decide the facts on the balance of evidence, considering whether it is reasonable for the parent to believe that the event occurred, and if it is whether it is reasonable for the parent to trust the childminder to provide an appropriate standard of care in future.

It sounds like the childminder was being advised by someone that understood all of this, so well done on standing your ground!

Justicequeen Mon 08-Apr-13 13:09:25

Well done BeccaBoo 1801! It's great to read this and very encouraging as I am about to embark on a similar course. My son was in the care of a childminder - quite new to the business - for a total of 15 days over a period of 3 months and my son was bitten by her daughter 4 times!! She has not provided me with accident / incident forms for some of those bites and claims not to have seen one of them happening as well. I terminated contract and refuse to send him back to be constantly bitten!! She is threatening to go to her insurance company to claim 8 weeks payment in lieu of notice from me! She also now refuses to discuss the matter with me anymore. I would love to know what claims you made in your letter responding to her solicitor so I can arm myself. I have bite mark photos etc. To my mind she has breached the contract in her duty of care towards my son. There is a clear conflict of interest as it is her child doing the biting too. Any advice would be fab please and thank you.

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