CM threatened to take me to court! Any help?

[kbjin]

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!

I really cannot see a court awarding damages because a parent reported a suspected assault to the police. This would open up a can of worms, and unless she showed evidence that you only made the report to cause her trouble, rather than being genuinly concerned I would be shocked if a court awarded her a penny. Especially as you did not make the knowledge public.

I would be very surprised if she was awarded anything,.

sassyminder, i found it shocking you described us as dodgy parents simply because we didnt notice the page 4 was missing, didn't check her Ofsted record etc and said my son lied (according to your understanding). May be you are a CM, so you are on their side??

Let me tell you he didn't lie, we were sure he didn't becuase we asked him questions from different directions. Give you an example, our first language is not English, when we asked my son's why did he get smacked, he said the CM said "being naughty boy" in English. These three words would not have come from our mouth.

Two weeks later, when the police came to our place and my son saw the picture of his bottom, he said "smack smack!" and then followed by the CM's name. He thought it was funny to be smacked. How hurt was it for a parent to see your kid saying that.

My 3 y.o. loved to go to the CM since he started but reluctant to go to nursery, in comparison. After that incident, he said he didn't want to go to the CM's place the next morning because he said it was sad!

There was nothing for us to gain and get off by reporting her to the Ofsted, but this was an advice given by my son's nursery manager. I had set up child care voucher through my work place on the same day the contract was signed.

Our contract started on 14 Nov 2011, and the incident happened on 23 Nov 2011, being busy parents with a new born baby, there wasn't enough time to make sure everything was in place.

Over-reacting? I trust all responsible parents would do the same thing and take the child out from the CM's care if they found marks on the child's body. I dont think any parents would risk this! If anybody would take this risk, please post and let's know why.

Kelly2000, I completely agreed with you, esp I dind't make anything public, Ofsted didn't even publish the incident as they didn't have to take any action.

HSMM, you are dead right about the buisness risk. I am a chartered surveyor and it is compulsory to take out professional indenmity insurance & public liability insurance to cover both the business and third parties, if I am running my own firm.

I can see the CM's has put down her insurance policy no. on the signed contract, should that be enough to cover her own business for loss of income and other bits?

Aprt from the insurance business. Isn't true that every child lies at any age if they think what they are doing is funny and try to fool the adults? Therefore, as parents we should simply take it easy and ignore whatever the child said and whatever marks we may find on their bodie? How crazy it this? Shouldn't have kids in the first place for those who has this kind thinking.

children do often lie, but when I did my child protection training, they told us that when children make a disclosure adults must believe them, so it is a very tricky area.

I hope this is all resolved somehow and the child is ok.

If she is insured by NCMA, their policy shows the following (amongst other more irrelevent points):

The cover under the policy can be summarised as follows:
?Legal liability for or arising out of:
?Accidental injury (including death) of any person in the care of the Insured Childcarer (including costs and expenses incurred in defending any matter forming such claim).
?Accidental loss or damage caused to a third party or the property of the third party in the course of their childcare activities.

Extensions to the policy
?Legal cost of defending civil actions arising out of the above.

Key exclusions to the public liability insurance policy arising out of:
?Abuse or physical punishment carried out by the insured member.

No mention of loss of earnings ...

HSMM, thank you for the information. Key question, why should I be made responsible for her loss of earning because of ofsted's own policy and length of their investigation which I have completely no control over and reason for making the complaint was becuase of my concern about my child's safety.
There was a similar casge posted here, confined child abuse but ofsted didn't suspend the cm's registration while investigating the complaint. That's from user "naughtyCM".

Would any of the cms on here do something like this - send a small claims letter asking for £5k of lost earnings?

I understand she is upset, of course...

Wasn't it just a few weeks anyway? She earns £5k in just a few weeks?

Extensions to policy, is that optional for the cm to take? To defend civil action... Or to take civil action against someone? I am sure there is a different between these two?

The Cm said in her court claim for that she wrote to me.but didn't get response. Not sure what she was expecting from me really, sending her a letter back and say yes she ca have £5from me. I belive regardless of what she would make the claim through the court as she was so determine to get that much.

Bloody hell. For a child to be smacked before 2 in the afternoon and still bear actual finger marks at 8.30, it must have been terribly hard.

What do you have to do with a letter from small claims? I have no idea how you have to respond. I am shocked that she even thinks she is going to get it

She must think she can scare you into paying her £5k.

I didn't reply to her first letter but acknowledge the court notice so I get 28 days to sort out my defence paperwork.

I have no idea of the legalities. If she is guilty she has a real cheek trying to claim and is lucky she's still working. If she's innocent I don't know how she will recoup her lost earnings and damaged reputation. Please do let us know how the case develops.

I would just ignore it to be honest or send her a brief but sharp letter from your lawyer. Last year I got very stressed out because someone left a note on the windscreen of my parked car accusing me of having rear-ended theirs, that they took a photo of my license plate and I was to call them on the mobile number provided to talk about damages. I was certain that no such thing had occurred. After a couple of days of handwringing, I called my insurance company and they said it was likely a scam. And sure enough, the note had been left on a number of cars parked on the street around the area.

The childminder may consider you to be an easy target if your first language isn't English.

I can't believe a court would do anything except throw out her claim. It is essential that allegations of abuse by children are heard and reported, so suggesting that parents are liable if no further action can be taken would be ridiculous.

Good point, breatheslowly. Imagine a world where we had to be frightened about financial loss if we report alleged child abuse and the authorities don't have enough evidence or don't think it happened!

I'd suggest going to citizens advice/free legal clinic with help drafting defence if you're not familiar with the system. Or check if it's covered under your household insurance. It's easy to get things wrong and if she has legal assistance through her insurance you may be caught on some procedural matter.

Tiggersreturn, thanks. I am meeting my lawyer tomorrow to discuss the defence.

Will you be able to recover any costs from her or are you going to have to fund your legal fees yourselves?

Don't think the cost is recoverable in small claim, that's what my lawyer said and probably why the cm put it through small claim otherwise she has to pay for my cost if she loses.

in the news today there is a case where a teacher was able to sexually abuse young girls even though there were thirty reports of his behaviour made to the headteacher. because no-one acted children probably got sexually abused. I woudl point this out to a judge and say it cannot be right or legal that parents are prevented from reporting to ofsted and the police when their child says they have been abused, it enables a culture of turning a blind eye.

Thanks Kelly2000, very valid point!

Not sure how long will it take to get a court date, can't wait to get this case put of my way causing so much unnecessary stress to the whole family esp when the youngest is only 4months old.

Fingers crossed for you! xx

Thank you HavePatience!