This topic is for discussing childcare options. If you want to advertise, please use your Local site.

Childminder suspended by Ofsted - contractual implications?

(18 Posts)
Londonnner Wed 28-Nov-12 10:43:04

Hello all,

Our childminder has been suspended by Ofsted as the result of an investigation relating to an unexplained serious injury to another child who she cares for. The suspension is initially for 6 weeks (this is standard).

Given the seriousness of the allegation, and the fact that we have been left in limbo for 6 weeks, and perhaps much longer, we are planning to change childminder but are not clear what the contractual implications are of the suspension. I am wondering if anyone has any experience of this situation (as a parent or childminder - or better still with a legal background) and can offer some advice?

The contract is a standard National Child Minders Association (NCMA) document, which unhelpfully does not deal with the implications of an Ofsted suspension. The small print does say that "The Notice period can not include... a time when the registered childminder is not providing care or being paid in full". It also provides circumstances in which the childminder can terminate the contract immediately, but not the parents.

Neither the NCMA nor Ofsted will offer advice relating to contracts - even in the most general terms.

Ideally we would like to terminate the contract with immediate effect given the seriousness of the complaint and the fact that if we have to pay for a notice period we will have to pay for two childminders for a month.

Any advice would be gratefully received.

Many thanks,

Londonnner

ItsAllGoingToBeFine Wed 28-Nov-12 10:52:29

I don't know the answer. Can you just terminate the contract and see what she says?

Hopefully you'll get a more helpful answer in a bit

MrAnchovy Wed 28-Nov-12 13:08:09

Unfortunately the position in law is IMHO not clear.

It may be that her being suspended is a fundamental breach of contract which would have the effect of terminating it immediately.

It may be that it is not a fundamental breach, but is a breach which would entitle you to claim the damages (the increased cost of childcare) arising from the breach.

It may be that it is not a breach at all but merely a temporary frustration. This would not entitle you to damages but would mean that you don't have to pay her while the frustration persists.

Whilst the 'no notice during no service or pay' clause appears to prevent notice being given during a frustration, this provision was clearly intended to deal with circumstances other than frustration. If the frustration turned out to be permanent it would appear to mean that the contract could never be terminated! This is IMHO not fair and a court may take the same view and decide that that the 'no notice' clause cannot be applied in these circumstances.

So if she decided to sue you it is IMHO unclear whether she would be successful. If I was in your position and the contract said four weeks notice I would probably write to her explaining that because she is unable to provide child care for an uncertain period you have no option but to arrange alternative child care on a permanent basis and you are therefore giving notice of termination on [four weeks from the day after you post the letter]. Ask for the return of any deposit or advance payment she holds.

However if you have to give say a term's notice it is going to be harder.

Londonnner Wed 28-Nov-12 15:45:35

Thanks MrAnchovie, that's very helpful. In our case we paid a month in advance and the suspension happened at the start of a month, so that payment could be in lieu of notice, or we could try and ask for it back. It's enough money to be missed, but probably not enough to engage solicitors.
Best,
Londonnner

Mindingalongtime Wed 28-Nov-12 16:56:52

This happened to a colleague of mine, but following investigation she was cleared of the allegation of serious injury to a child in her care, as it had actually happened in the child's family environment.

The parents had the cheek to ask her to take the child back after the case was closed, she refused, she had lost over £3000 income and obviously they weren't going to compensate her!

So, could she be innocent, is it just an allegation, or is there no doubt?

Londonnner Wed 28-Nov-12 17:04:13

@Mindingalongtime

Putting the question of guilt to one side, at a more basic level we can no longer deal with the uncertainty and want to ensure our child has continuity of care and we can get on with our working lives (and stop calling in favours from family). The initial Ofsted suspension is 6 weeks, but could be extended to 12 or more, and the prospect of a quick resolution is now gone.
In terms of finances, unlike in a standard case of giving notice before a change of provider, we may end up having to pay for both the old childminder and a new one, through no fault of our own. The NCMA contract could definitely be more helpful,

Mindingalongtime Wed 28-Nov-12 17:47:03

Sorry, Londonner, I was about to add, that this doesn't solve you problem and I understand about the need for continuity of care.

I agree about NCMA contracts, they are a bit woolly, especially over a situation like this. If I were the minder in that situation, I don't think I would expect to be paid and you certainly shouldn' t have to pay for care twice. That is a huge cost to bear.

Does the c/m have back up minders? We all looked after our colleagues minded children and they all returned back to the minder bar one.

This does sound more serious 12 weeks is being mooted as suspension period, though another minder I knew had hers investigated by social services and the police and was over in 2 weeks.

Would you go back to her if all is cleared and resolved, or do you feel you have to move on anyway?

How long has your child been with the minder? Full or part time?

I belong to another professional association as well as NCMA, I can ask them for their opinion on the notice situation and see what they say?

I hope y sort something out quickly for you and your child.

Italiana Wed 28-Nov-12 18:38:53

Has anybody thought of putting this question about contracts in NCMA Local My Business?.....I am sure someone from NCMA will reply as they input all the time and all posts are read by the Local Team
It is definetely something that NCMA needs to look into in contracts, generally I think the contract needs updating and I believe they are working on 'assistants' contracts
Due to rebranding I would also think the whole thing will be updated

Londonnner Wed 28-Nov-12 22:32:51

It appears that the NCMA Local forum is only open to registered childminders (which I am not). If someone else could solicit a response and report back here I (for one) would be most grateful.

With a young child, we have been doing everything possible to avoid the unsettling experience of multiple/temporary carers in a period of weeks. It was hard enough getting our child settled the first time.

The situation we have experienced could quite easily happen to any childminder or parent. Both would seem to be left with a lack of guidance on the contractual implications of Ofsted stepping in - although at least most childminders will have some kind of legal insurance.

Thanks.

Strix Fri 30-Nov-12 14:09:32

Londonner,

I sympathise. My childminder has just been suspended in a well intended but horrifically misguided judgement by ofsted and social services. I am shocked and appalled at their poor jusgement; and their failure to even consider the children's continuity of care. I could go on and on, but I'd have to type things which are probably not my place to share with the general public.

Anyway, we are a couple of weeks into the suspension now. Another childminder has taken on all of the children (and an assistant or two). So the ids are together (mostly). The suspended childminder organised all of this. She is paying new childminder from the money the parents had already paid her. I am sure she would never dream of charging us for a service she isn't providing. And, if she did (she wouldn't, but if she did), I would certainly not sign up to paying for it.

I always thought that one of the benefits of using a childminder is that she wouldn't up and move jobs leaving me looking for a new one, as often happens with nannies. I forgot to consider the role ofsted might play.

I love our childminder to pieces. She is the best ever. And we will cope with whatever shildcare we need to put in place until such time the horrible ofsted come to their senses and give her back her registration.

anewyear Sun 02-Dec-12 10:30:25

Sorry to hear all thats going on with your Childminder Strix :-(
I hope you (and any other parents involved) have written to Ofsted with regard to your frustration with them.
Collective parent power can be quite awsome at times..

Strix Tue 04-Dec-12 06:45:03

Thank you. Its a pretty miserable experience but far more so for her than for me.

Every single parent has rallied behind her and written ofsted. I dont think i have left a stone unturned. But i find one, rest assured I will turn it.

Londonnner Tue 04-Dec-12 12:07:49

Thanks all for your replies.

Re the Ofsted decision, three things strike me:
(1) As parents whose child was not the one involved, we have not been approached by Ofsted at any time since to ask whether we have had any concerns of any kind with the childminder. When I asked Ofsted about this, I was told that it was my responsibility as a parent to raise concerns with them, not for them to solicit my view. The trouble with this approach is both that it is passive rather than active, but also, more problematically, it fails to recognise that parents may individually have minor concerns not worthy of Ofsted's attention, but that if added together might show a worrying picture.
(2) There are risks associated with a change of child care provider, for example to the emotional wellbeing of the child/ren affected. I'm not sure whether Ofsted weigh this up in their deliberations.
(3) This isn't just an Ofsted case, but has also involved police, Social Services, health providers, and my suspicion is that Ofsted cannot make any decisions (individually or in conjunction with other agencies) until the police have finished their enquiries/investigation. But they have never explained that, if indeed it is the case. Indeed, communication has been limited to one letter - I have made several phone calls to try and fill in some of the blanks.

Strix Tue 04-Dec-12 16:42:06

(2) There are risks associated with a change of child care provider, for example to the emotional wellbeing of the child/ren affected. I'm not sure whether Ofsted weigh this up in their deliberations.
*************
They not only don't give this consideration any weight. They don't care. And they are unwilling to even tell parents what risk they believe to be presented to their children. This is outrageous that ofsted could have such an inflated sense of self worth they they don't see the need to give parents information regarding THEIR child. The safety of a child is ultimately the parents responsibility. And by witholding information from the parents, OFSTED is harming and not safeguarding children.



(3) This isn't just an Ofsted case, but has also involved police, Social Services, health providers, and my suspicion is that Ofsted cannot make any decisions (individually or in conjunction with other agencies) until the police have finished their enquiries/investigation. But they have never explained that, if indeed it is the case. Indeed, communication has been limited to one letter - I have made several phone calls to try and fill in some of the blanks.
***************
I find the various bureaucracies are not communicating at all. They have no idea what decisions have been made or what information has been obtained by others. A total breakdown in communication. And they are far more interested in the slef perceived importance of their own (misguided) policies than they are in the welfare of the children concerned.

Ofsted is a well intended but terribly misguided quango whose powers should not be eliminated but should be greatly reduced. angry

Londonnner Tue 04-Dec-12 21:57:58

One further point: in an era of baby P and Victoria Climbie it seems very likely that the easiest (ie reputationally safest) option for all agencies concerned is to adopt a 'presumption of high risk'.

My mother has previously been involved in child protection work in a professional capacity (not Ofsted) and remarked that there is no incentive for agencies to conclude deliberations quickly for the same reason. By investigating (however dilatorily) they are in effect demonstating that they are doing something and all backsides are duly covered. This is, of course, a disaster for parents and wrongly suspected childminders, all of whom need as a minimum some certainty on which they can plan.

hihosilversodoff Tue 04-Dec-12 22:36:17

Just my two cents here on the general principles of suspending someone from childminding and how much you can tell the parents, since I've worked in a related field to do with safeguarding before.

Imagine you are a childminder, and someone has accused you or a member of your family of something which has to be investigated by the police or social services. For example a four year old has a fingermark bruise on their leg and tells their Mum you hit them, or a three year old boy is playing with himself in the bath and says your teenage son does that too him too. It may all have an innocent explanation and be children letting their imaginations run wild, but if the concern is passed on to children's services then they'll have to look into it.

And if you have potentially assaulted a child, or if your teenage son has behaved inappropriately with a little boy, then it's hardly safe to go leaving you in sole charge of numerous small children while the investigation is carried out. Imagine your childminder casually mentioned that the other week they were accused of assaulting someone and the police were looking into it but she was sure it would all blow over and yes she's fine to have your DD/DS for an extra hour tomorrow. Yes it can take a ridiculous length of time to investigate these sorts of concerns, but that is largely down to balance of risk and police/social services resources - they're looking into dozens of cases of assaults and other more serious crimes, and family abuse and predatory abusers who have continued access to children and they only have shoestring resources, whereas with you not minding and the allegations being relatively minor the situation is "safe" for the time being. That is a horrible situation for you still, but some delay is understandable.

While this is ongoing, what would you expect the parents of the children you look after to be told? Obviously the parents who raised the initial concerns know the details, but otherwise, how much do you want to tell them all? Maybe you would want to explain that an allegation of assault has been made against you, you say it's not true and you're sure it will be all sorted out, but the police have to look into it. But maybe you really wouldn't want that becoming public knowledge in your local community. And what if the allegation was one of sexual assault against your teenage son? Would you want to tell people that? Would you even want to tell people he was the reason for the suspension, rather than it being about you?

And the agencies involved have to protect your personal information - unless they need to tell someone the details for the investigation to be carried out, they're not going to casually inform all and sundry about the nature of the allegation against you or how their investigation is progressing. If they did, that would be an extreme breach of your privacy - and if the allegation turned out to be unproven, the suspicion could still linger against you. That is why they have to be as vague as possible when dealing with anyone who isn't directly involved in the allegation.

And Ofsted do give consideration to people losing their childcare when making a decision about suspending a provider - they have to formally consider the impact on the provider, parents and children. It's an extreme step that is only taken where they consider there is a real risk of harm to children and that preventing the childminder from working is the only way to protect them. As much as anything else it takes a lot of time and effort to suspend someone, have all the meetings, liaise with the other agencies, service the notice, inform all the parents, carry out monitoring visits to make sure they're complying with the order. Then they have the childminder and half the parents writing in to complain about the suspension and they may have to defend their position at a legal tribunal hearing which costs a bomb in legal advice and representation. I very much doubt they do it for fun.

Strix Thu 06-Dec-12 16:05:17

Those situations you describe are pretty horrible, but they don't explain why ofsted sent us parents all a letter saying they believed there was a risk of harm to the children, yet have failed to explain to any of the parents or even to the childminder what risk they are investigating. Everytime they visit her they ask about unrelated subjects... right down to picking apart the the detils of the ratios. They appear to be grabbling at straws because they in fact have nothing to charge her with.

I used to believe ofsted had it's place with childminders because they serve the public and that regulation was therefore valuable. I now believe they are a bureaucratic quango whose money would be better spent elsewhere (i.e. increased childcare vouchers for parents).

They have been truly horrid to my childminder, to the children, and have no sense of accountablility for their own BAD decision. sad angry

But, they have the power to do as they please without having to explain themselves to anyone. Sad but evidently true.

I think childminders will be better off we away from the powers of ofsted. Good for them.

Donquixote Mon 31-Dec-12 12:59:58

@ Strix I totally agree with your sentiment.
My Wife is a CM and I assist her where necessary.
I have spent the last 9 months dealing with three agencies concerned with Child protection. We knew the allegation was malicious & advised Ofsted accordingly. Their investigation was about safeguarding children, made by a person who we eventually discovered was a so called parenting expert; who had to stop that practice after acquiring a criminal record for GBH. Neither of the agencies knew her background, until I produced it. However according to Ofsted the source is irrelevant unless the allegation is obviously malicious.
The officers in this case are clueless and in my view aided & abetted a heinous act. Needless time was spent by all agencies when commonsense and a littler bit of professionalism would have sufficed.
What makes me angry is that more pressing and serious events are left unchecked while they go chasing windmills.

Join the discussion

Join the discussion

Registering is free, easy, and means you can join in the discussion, get discounts, win prizes and lots more.

Register now