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CM threatened to take me to court! Any help?

(128 Posts)
kbjin Sat 31-Dec-11 03:22:24

Hi, I am just after some help and advice on how to deal with this issue.

We used a local CM in Nov this year, who lived just across the road from us which we thought was really handy at the time.

3 weeks into the contract, one day my son (3 yrs old) returned home and after the dinner he complained about pain on his bottom. I later found out from him that he was smacked by the CM. There were red marks (similar to 4 fingers shape) on his bottom, I took photos and video of him as evidence. Spoke to the CM the next day and had a meeting with her at my place, but she denied everything happened to my son. I also reported to Ofsted on the same day as advised by my son's nursery.

Ofsted responded very rapidly and as a result the CM's registration was suspended for 3 weeks during the investigation. S/Service and Police were also involved but they said they couldn't not established any evidence and place any charge on her because they couldn't interview my son due to his age. Police said the child needed to be at least 4 before they could interview the child.

Becuase of the lack of evidence through the police and s/service, now Ofsted didn't do anything but sent us a letter notifying us of the outcome which was what we were expecting anyway.

The CM just dropped off a letter last evening blackmailing us to pay her money for her loss of income, stresss and all the problems caused by the allegation we made against her during the 3 weeks' investigation conducted by various officials. She demanded £5000 plus the 4 weeks notice and said in the letter if we don't pay her the amount, she would take us to court.

Can she claim that much against us esp. for her loss of income and stress etc? I thought as parents, it's our duty protect our child from being mistreated by CMs, and the proper way to resolve the matter is to report it to Ofsted. Whatever action or investigation they were susposed to do was completely out of our control and why should we be responsible for the 3 weeks taken by Ofsted to complete the investigation?

The other thing about the contract is that it's a NCMA standard contract, on page 4 usually there is a notice period. But we couldn't recall we have agreed on the 4 weeks notice, all we agreed was the 4 weeks holiday notice. Also, later we noticed we were not given page 4 so we couldn't check what's written on it. After the incident we asked her to give us back the page 4 of the contract but she didn't. Instead, she exchanged the carbon copy (all 4 pages) with our 3 original pages. We carefully examined the carbon copy and notice there was nothing written on the notice period, it's blank.

Any advice would be highly appreciated!

malovitt Mon 02-Jan-12 17:04:49

I don't agree.
If I was guilty, I would let it all quietly die down.

If I was innocent and had been unjustly accused, I would want compensation for my loss of earnings and the tarnishing of my reputation. How long has she been a childminder, OP? How many other children does she look after? Three weeks earning could be substantial.

mrsthomsontobe Mon 02-Jan-12 17:27:51

I agree with malovitt

Karoleann Mon 02-Jan-12 18:08:04

Okay....now she has a duty of care towards your son, therefore you have a claim over her under law of tort google it - its complicated. There is also a contract issue and in no looking after your son correctly she, i assume, has also breeched her contract in not looking after your son correctly.
The level of evidence/proof needed in a civil court is far lower than in a higher court (which is where your case would be likely to be held). If you have photographic evidence as well that is likely to strenghten your case.

I'd write back saying that their is no notice period in your contract, if she does want to take the matter to court you will issue a counterclaim as your son was assalted in her care. Be careful only write the facts as you don't want to be accused of blackmail.

We ended up in a civil court last september as someone rear ended me and then claimed I'd backed into them. Although the build up was a bit stressful, the actual court appearance was fine, their story didn't add up and we won plus costs (which was my nannies fee for the day and DH's cost of his day off work).

Vinomum Mon 02-Jan-12 21:14:55

If the CM smacked your child, it's a repudiatory breach of contract - this means something that is so fundamental that it brings an end to the contract with immediate effect. The notice period - whether or not you have this in writing - is no longer in point, so you don't owe her a penny.

I would fight this to the nth degree if I were you, I'd be absolutely bloody furious, not just with the CM but with the police and SS too.

kelly2000 Tue 03-Jan-12 19:38:03

Call her bluff, and ignore her. Then if she sends a letter from the solicitor respond by sending a letter from your own solicitor stating you will not only defend yoursdelf against her claims, but will also counterclaim. remember if it goes to court it could be reported in the local media that she was accused of assaulting a child, suspended for three weeks and is now suing the parents. As it involves a child, I do not think you could be named as that could identify him.

VivaLeBeaver Tue 03-Jan-12 19:57:37

I would call her bluff. I can't imagine there would be any way that the small claims court would award her any money for stress and loss of earnings. Why doesn't she sue social services or the police...........because she knows she hasn't a leg to stand on.

In the mean time I would report this latest development to ofsted and the ncma.

kbjin Tue 03-Jan-12 22:42:47

malovitt, mrsthomsontobe I absolutely agreed with you two.
however, the reason she could go free, as I have mentioned before, was due to the fact that the Police & Social Service were unable to interview my son due to his age. Although they had seen the photos and a video I took of my son, they couldn't use those as evidence.

Once again, I would like to emphasis this was not a malicious complaint against the CM, it's genuine and I have nothing to gain from the complaint. All fee was paid up the day after we signed the contract.

There was no reason for us not to believe what our son said, as he repeated said 3 time that he was smacked by the CM and even showed us how she did it to him.

Next morning after he woke up and he said he was sad and didn't want to go to her place again. How much lie can a 3 years old make up??

This CM has only been business since 2009 and all the current children in her care are much younger than my son. 1 x infant under 1, 2 x 2 yr old and 1 x 2.5, then my son, another boy 5, but the CM only does his school run and he doesn't stay at her place.

I found she is somehow dodgy because when she was home, she asked her sister (who is not Ofsted registered) to look at the children for a short while like 0.5-1hr.

I have seeked legal advice today and they agreed with what I did. Purely for the safegaurding of my child and as a duty of parent.

I have also asked for all information on file from S/Service, Ofsted via Freedom of Information Act, will be requesting the Police for more information soon.

I got the feeling that Ofsted did relay very much on other agencies' findings to make their own judgement, if the Social Service and Police cleared her, then there wouldnt be any more for Ofsted to look for.

I just found out S/Service has now closed the case without even notifying us by either phone or writing.

VivaLeBeaver - NCMA is absolutely useless as they didn't even want to speak to you about anything unless you are a member of them. They said they don't deal with any third party but their member, they don't regulate their member but to provide a service to them. Ofsted, somehow I find their investigation not that useful, not saying they are useless, as they said in their final reply letter: they only look into any breaches of regulation and won't approve or disapprove the complaint.

Anybody has ever consider her loss of income was a direct result of Ofsted's legnth investigation? Cuz if they could have finished the investigation a bit quicker like within a week, wouldn't the CM be able to know if her registration could be unsuspended sooner?

Alliwantisaroomsomewhere Wed 04-Jan-12 07:01:13

Regarding your child having been with the CM for 3 weeks only, OP: as far as I can recall there is a section on the front page of the contract allowing for a settling in period during which no notice is required if either party wished to cancel the contract. Have a look at it. The fine print on the back states something to the effect that a settling in period without notice should be given.

I reckon you should take legal advice, but call her bluff and tell her to go for it. "See you in court!" as they say.

Good luck. Let us know how you get on.

kbjin Thu 05-Jan-12 00:07:57

Alliwantisaroomsomewhere, thanks for your support.
I checked the contract and there was a section on page two about the settling in period, it was crossed out and I think we both agreed not to have one, as my son had a few days with an hour or so as settling in days. So we were happy with her service initially.
But the termination notice field was definitely blank and nothing had been dicussed or agreed during the meeting when we signed the contract. I think that's already good enough, I had this checked by a solicitor and she said that's fine and we don't have to give the CM the 4 week notice.

cumbria81 Thu 05-Jan-12 12:14:06

I'd just ignore it.

If and when you get a more official letter from a solicitor etc, then think about acting. But she can't do anything by herself and going to court takes ages and costs money. She might well not bother.

Catslikehats Fri 06-Jan-12 08:54:44

She is having a laugh!

Essentially she is blackmailing you. "Damages" above and beyond the losses associated with the alleged breach of contract cannot be recovered in the small claims court, she is essentially saying pay up this additional sum or I will take you to court, not pay up what you owe.

Do you have a reasonable relationship with the police that were involved in the investigation? If you do I would make an appointment to see them and show them the letter saying you feel harassed by her behaviour. Ordinarily police (rightly) won't get involved in civil matters but she has crossed the line and her behaviour could be interpreted as a criminal offence.

malovitt Sun 08-Jan-12 08:47:23

If you haven't signed an agreed notice period, there is nothing she can do regarding asking payment for this. But as I said, three weeks loss of earnings for her may be substantial and, if she didn't do anything, is probably extremely angry that a child whom she has minded for just three weeks has turned her life upside down. I'm not calling your son a liar, you know him best, but I'm trying to see it from her point of view if she did nothing. The demands for payment do not sound as if they come from a person who knows that she has done wrong - far from it from my point of view.

So, OP, what time did your son leave then cms and what time did he say to you his bottom hurt? Did he say she smacked him through his clothes/nappy? It must have been with some force to leave a red mark hours later? How many other children were on the premises at the time?
What grading was her Ofsted report? And the other bit you said about her being dodgy - that she left minded children alone with her non-registered sister? When did you find out about this - when you were still using her?
Sorry for all the questions - i just find it unbelievable that a cm would hit a child like that. Perhaps I just know really kind and gentle ones who wouldn't dream of doing anything like that. I look after 3 year olds myself and they sometimes come out with all sorts, blaming others who weren't present for breakages etc...

SaraBellumHertz Sun 08-Jan-12 08:52:01

malovit plenty of people hit children, like that. I find it unbelievable that you can't even consider that there might just be a bad childminder out there who would.

HavePatience Sun 08-Jan-12 09:47:28

I see you trying to see the other side, mallovit, but it really sounds like you think the op is lying. I'm really shocked that people in charge of children can get away with abusing them because you can't interview someone under 5! I am not saying many do but it's that 1 in a million - 1 child is too many.
If a cm is working alone and only ever hits a child in her home with all under 4s present, how is anyone to know? It seems even with marks and photos, s/he can't be caught because there isn't any 'evidence' (?wtf?)
I can see it protects the cm from parents and children lying maliciously but what about the one cm who is harming children?
Please tell me what evidence would be good enough for a police officer/social services/ofsted when a cm has actually smacked a child under 5 as in this case and left a mark - in her own home with no one else over 4 to witness it? What would that be?
Seems nothing.
Easy to cover up.
Disgusting.
Sorry, but it is. angry

malovitt Sun 08-Jan-12 13:13:12

I'd like the op to answer my questions first.

I don't think she is lying HavePatience. She took the correct course of action by reporting the alleged incident to Ofsted.

I'm sure there was a red mark on her child's backside, she took photos of it. But I'd be interested to know how she questioned her child - "Did CM do it?' or "Who did that?" and letting him answer himself.

I'm sure that there must be cm's out there who lose their temper and lash out. But something here doesn't sit right with me somehow.

In my opinion, the way the CM is asking for compensation for loss of earnings would indicate to me the actions of someone unjustly accused. I feel, as I have said earlier, that someone who was guilty would just let it lie.

SaraBellumHertz Sun 08-Jan-12 13:22:57

malovit she is not just asking for compensation for loss of earnings she is threatening the OP that if she doesn't pay an additional sum of money (that would not be recoverable through the small claims court) then she will take her to court. She is blackmailing the OP. which is a criminal offence and fairly indicative in my view of someone morally bankrupt.

WorkingClassMum Sun 08-Jan-12 13:39:29

If she hasn't signed the letter then she hasn't actually made a demand then.

I'd send a copy to the police, but she can deny in court ever making the demand (as it wasn't signed).

Do not reply to her, call her bluff and even if she makes a 'real' demand then send it to your solicitors and get them to send her a notice that all future corresndence is to come via them.

Did your DS say why she smacked him? I hope your DS is feeling happier.

SaraBellumHertz Sun 08-Jan-12 13:57:28

I don't know where you get the idea that because she hasn't signed the letter it isn't a demand. A fairly strong inference can be drawn that it is from her confused

WorkingClassMum Sun 08-Jan-12 14:04:51

Add message | Report | Message poster SaraBellumHertz Sun 08-Jan-12 13:57:28
I don't know where you get the idea that because she hasn't signed the letter it isn't a demand. A fairly strong inference can be drawn that it is from her

Because DP got a letter of demand awhile ago and when we got legal advice (in Australia) we were told that as the letter wasn't signed it wasn't considered to be legit. (BTW the demand on DP was baseless)

Yes it COULD be inferred it was from her, but it could equally be inferred it was written on her behalf or it could also be mischievous from her sister.

It is a technicality but it IS an unsigned demand. Granted there are different laws in different countries, but I'd expect that this one point would be the same for both countries (which is why I only made this one point)

HavePatience Sun 08-Jan-12 14:21:57

No I think anyone, guilty or not would try to make their name good again or at least take course of action to make it look like they are innocent (acting as a wrongly accused would have).

Anyway. I want to know how we prevent a cm (not necessarily this one) from doing something like this as it seems they just won't get caught if they are careful enough sad

SaraBellumHertz Sun 08-Jan-12 14:26:32

I can tell you as an English barrister that such a letter could be used in court as evidence of a demand smile it perhaps wouldn't be given as much weight as if it was signed from her but since it is presumably worded as a request to pay her it is a fairly probative in evidential terms.

kbjin Sun 08-Jan-12 15:59:56

Malvoitt,

My son came home around 2pm and we notice he was in pain around 8.30pm, before that he had a nap, tea, play and dinner.

That day he was wearing a thick fleece trousers (not on nappy anymore), not sure if he was wearing it or not when he got smacked, but he described who (the CM) did it and showed us how (we filmed him). He said it was done upstairs (probably in the toilet). He repeated it three times within the same hours.

He always feels cheerful going to the CM's place before, but not after that night. Next morning we asked him if he wanted to go, he said "no" and "sad".

We even asked why shs smacked her, my son's reply was that the CM told him he was "being a naughty boy".

Yes must be quite a lot of force. CM claimed it could be radiator mark at our house? how dare she, to leave such mark when the child was wearing a thick trousers, the radiator must be boiling hot. she's just trying to find excuse.

We were told there were another two boys in the house both 2 y.o (as twins) and then my son.

Haven't looked at her Ofsted grading as she was recommended by a friend of mine initially.

dogdy things about her? well my son was only in her care for 3 weeks, we probably notice her dodgy things during the second week.

kbjin Sun 08-Jan-12 16:01:30

The CM dropped of another letter last Thurs, this time it was an amendment of the first one, she apologised for the mistake she made, about the wrong address & unsigned. In a way, she confirmed the first letter was from her. But still asking us to reply to her letters.

sunshinenanny Sun 08-Jan-12 16:14:10

Small children don't always tell the truth but 3 finger shaped marks on his bottom several hours after the event? Clearly someone made them! I don't think it would have been one of the other children. As for children under 5 being too young to interview, I think that depends on the child.

don't give this woman a penny, she's bluffing

HavePatience Sun 08-Jan-12 16:15:26

I don't know what to advise but do you have to reply if it's not from her solicitor? Anyone know if op can just ignore it as it's BS anyway?

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