Emma Jayne Duffield v Ofsted

1. The APPEAL 1.1 This is an appeal by Miss Emma Jayne Duffield (“the Appellant”) against Ofsted’s (“the Respondent’s”) decision dated 6 November 2025 to suspend the Appellant’s registration as a childminder on the Early Years Register, the compulsory part of the Childcare Register and the voluntary part of the Childcare Register, for a period of six weeks.

2. Attendance 2.1 The hearing was conducted remotely on 4 December 2025. 2.2 The Appellant attended and represented herself. 2.3 The Respondent was represented by Ms Sharmista Michaels (of Counsel). Ms Michael’s instructing solicitor, Mr Toby Buxton, also attended. The Respondent’s witnesses were: (a) Susan Bradford, Early Years Regulatory Inspector (b) Johanna Holt, Early Years Regulatory Inspector (c) James Norman, Early Years Senior Officer. 2.4 Mr Jack Taylor attended as an observer.

3. Background AND KEY CHRONOLOGY 3.1 The Respondent is the body responsible for the regulation of registered providers under the Childcare Act 2006 (“the 2006 Act”) and the various Regulations made under the 2006 Act. 3.2 In or around October 2025, the Respondent became aware, that from late 2024 social services had been involved with the Appellant and her partner, Mr Lee Cox. Mr Cox was also the Appellant’s childminding assistant. Social services had investigated allegations of excessive drinking and domestic abuse, but that investigation was closed in early 2025 without action. 3.3 On 6 October 2025, Ofsted Inspectors Susan Bradford and Johanna Holt visited the Appellant and meet with the Appellant and Mr Cox to discuss the concerns. Both the Appellant and Mr Cox denied that Mr Cox habitually drank to excess and denied there had been any incidents of domestic violence. 3.4 Following the visit, the Respondent obtained information from Mr Cox’s GP, who confirmed that Mr Cox does consume alcohol excessively, has related health conditions, and has refused support to reduce his alcohol consumption. 3.5 The Respondent made the decision to suspend the Appellant’s registration, which was communicated to the Appellant in the Notice of Suspension dated 6 November 2025. 3.6 On 11 November 2025, the Respondent was notified of an incident at the Appellant’s home, which occurred on or around 7 or 8 November 2025. It is alleged that there was an argument between Mr Cox and the Appellant’s daughter, during which Mr Cox produced a weapon (either a replica firearm or a crossbow). The Appellant and her daughter, along with other members of the household, left the setting to obtain police assistance. Mr Cox was subsequently arrested and charged and was remanded in prison custody until 8 December 2025.

4. Legal Framework The Legislative Provisions 4.1 Section 69(1) of the Childcare Act 2006 (“2006 Act”) provides for regulations to be made dealing with the suspension of the registered provider’s registration. The section also provides that the regulations must include a right of appeal to the Tribunal. 4.2 Regulation 9 of the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 (“the Common Provisions Regulations”) sets out the test that must be applied when deciding whether to suspend a childminder. The test is: “That the Chief Inspector reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm”. 4.3 “Harm” is defined in regulation 13 as having the same definition as in section 31(9) of the Children Act 1989 i.e. as: “ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill treatment of another”. 4.4 Accordingly, it is not necessary for the Tribunal to be satisfied that there has been actual harm or even a likelihood of harm, but merely that a child may be exposed to a risk of harm. 4.5 The right of appeal is found in regulation 12 of the Common Provisions Regulations. 4.6 The periods of suspension are prescribed by regulation 10 of the Common Provisions Regulations. Any suspension is for an initial period of 6 weeks, which can be extended. 4.7 The Respondent has an ongoing duty to monitor whether suspension continues to be necessary, and the suspension may be lifted at any time if the circumstances in regulation 9 cease to exist. The Burden and Standard of Proof 4.8 We remind ourselves that in an appeal under regulation 12 of the Common Provisions Regulations, the Tribunal is not reviewing the decision of the Respondent. The Tribunal stands in the shoes of the Respondent and considers the appeal de novo as at the date of the hearing.The Tribunal is required to consider all the evidence available to it at the date of the hearing. The Tribunal is not restricted to a consideration of the matters available as at the date of the Respondent’s decision. 4.9 We further remind ourselves that: (a) The burden of proof is on the Respondent to establish that the relevant test in regulation 9 of the Common Provisions Regulations has been met. (b) The standard of proof required is whether there is “reasonable cause to believe”. This falls somewhere between the balance of probability test and reasonable cause to suspect; and (c) Reasonable belief is judged by the informed observer test: “The reasonable belief is to be judged by whether a reasonable person assumed to know the law and possessed of the information available would believe that a person might be at risk if the conditions did not take immediate effect”. The Issues 4.10 The sole issue that Tribunal must consider is: Whether the Tribunal has a reasonable cause to believe that the continued provision of childcare by the Appellant may expose a child to a risk of harm. 4.11 Under Regulation 12(2) of the Common Provisions Regulations, the Tribunal may: (a) confirm the Chief Inspector's decision to suspend registration, or (b) direct that the suspension shall cease to have effect.

5. Analysis 5.1 We carefully considered all the written evidence submitted to the Tribunal in advance and the oral evidence given to us at the hearing even if we do not mention it. We used the hearing to amplify and update parts of the written evidence and only record such of the oral evidence as is necessary to explain our decision. 5.2 We decided that the threshold test in Regulation 9 of the Common Provisions Regulations had been met. In our judgment, a reasonable person assumed to know the law and possessed of the information available would believe that the continued provision of childcare by the Appellant to any child may expose such a child to a risk of harm. Our reasons were as follows: (a) Mr Cox was a member of the household in which the Appellant undertook her childminding business. He was also her childminding assistant. The Appellant gave oral evidence that Mr Cox would open the door to the children in the morning and pick up at least one child from school regularly. Mr Cox was therefore in regular contact with minded children. (b) Mr Cox’s GP reported that as of June 2025, Mr Cox was consuming 70 units of alcohol per week. NHS guidance is that Regularly drinking more than 14 units of alcohol a week presents a risk to ones’ health. Mr Cox’s alcohol consumption was therefore extremely high. Further, his GP recorded that Mr Cox has a “longstanding history of excessive alcohol consumption”. (c) The Appellant’s evidence was that she had not known about the full extent of Mr Cox’s drinking, but he had in any event stopped drinking completely in June or July 2025. (d) In this appeal, we were required to make no findings of fact regarding Mr Cox’s alleged drinking. But it was not in dispute that up until June or July 2025, Mr Cox had been drinking to excess and because of his incarceration the Respondent had been unable to undertake further medical checks on Mr Cox. The purpose of these checks was to better understand the level of risk Mr Cox posed because of his alleged drinking. We were therefore persuaded that on the evidence currently available, Mr Cox’s presence in the childminding setting and his interaction with minded children may expose those children to a risk of harm. (e) It was alleged that Mr Cox had a propensity to violence (social services had become involved because of allegations of domestic violence and it was alleged that Mr Cox had made threats of violence on 7 or 8 November 2025). Further, it was alleged that Mr Cox had kept a weapon (i.e. a crossbow and/or imitation firearm) in the childminding setting. It is further alleged that Mr Cox brandished the imitation firearm with intent to cause fear of violence. He has been charged for that offence. (f) If these allegations are, in due course, proven then they would suggest that Mr Cox is unsuitable to be regular contact with minded children either as a member of the Applicant’s household or her childminding assistant. Accordingly, on the evidence currently available, we are further persuaded that Mr Cox’s presence in the childminding setting and his interaction with minded children may expose those children to a risk of harm. (g) We considered that Mr Cox is currently in prison. We were told that Mr Cox is due back in court on 8 December 2025. Neither party was able to confirm what was expected to happen in terms of Mr Cox. If, on 8 December 2025, Mr Cox is remanded in custody for an extended period of time then this is likely to materially affect the assessment of risk. Mr Norman’s oral evidence was, that in these circumstances, the Respondent had a statutory duty to keep the suspension under review, and the Respondent would comply with that duty. (h) In our judgment, the fact that Mr Cox was presently in custody did not sufficiently mitigate the risk he posed. There was too much uncertainty as to what may or may not happen on 8 December 2025. If Mr Cox was released on 8 December, we considered there to be a material risk that he would return to live in the childminding setting. We noted that in the information provided with the appeal documents, the Appellant states: “Lee Cox is now not a household member or assistant…” In her oral evidence, the Appellant stated that she did not feel she could still live with Mr Cox, but she also admitted that she still loved him a lot, she cared about him, and she would like him to live with her. We make no criticism of the Appellant for feeling this way. But it does present a risk that the Appellant would permit him to return to live in the childminding setting if he was released on 8 December 2025. Given the Respondent had a statutory duty to keep the suspension under review, and Mr Norman had confirmed that the Respondent would do this, the balance of the risk fell against the Appellant. 5.3 Separate to the risks posed by Mr Cox, we were persuaded that the continued provision of childcare by the Appellant herself may expose a child to a risk of harm. Our reasons were: (a) The Appellant has shown no understanding or appreciation of the risk of harm that Mr Cox presented because of his alleged alcohol consumption. In her written evidence, the Appellant accepted that Mr Cox drank alcohol but stated that: “this was never around minded children”. The Appellant repeated this in her oral evidence. She also explained that she had been “shocked” to read the information from Mr Cox’s GP and learn the full extent of Mr Cox’s drinking. Accordingly, on her own evidence, the Appellant did not know when or how much Mr Cox was drinking. The Appellant could not therefore say with any confidence, that Mr Cox never drank around minded children. (b) In any event, whether Mr Cox did or did not drink in the presence of minded children misses the point. If Mr Cox does or did drink anything close to the 70 units of alcohol per week reported by his GP, then he would present a potential risk to minded children whether or not he drank around those children. The aftereffects of heavy alcohol consumption can in themselves expose a child to a risk of harm. The Appellant demonstrated no understanding or appreciation of these risks. (c) Further the Appellant stated: “I believe that the children in my care have never been put at any risk of harm”. It is alleged that Mr Cox kept a weapon (either an imitation firearm or crossbow) at the childminding setting. The Appellant’s oral evidence was that these facts did not present a risk of harm to minded children because she had no knowledge of the weapon. The Appellant was intransigent in her answers to our questions and completely unwilling or unable to appreciate the risk that this posed. If it is proven, in due course, that Mr Cox did keep a firearm in the childminding setting the mere presence of that firearm presents a significant risk. Had a child found it that child or any other child could have been put at risk of harm. (d) Mr Norman’s evidence was that he had considered a possible undertaking from the Appellant in place of the suspension but had ruled this out as an option because the Appellant had a history of failing to report significant events. He therefore had no confidence that the Appellant would abide by the terms of any undertaking. We accepted that evidence. The Appellant’s evidence was that she was entitled to a private life and “what went on in the home should stay in the home” and “what went on behind closed doors should stay behind closed doors”. The Appellant was either unable or unwilling to understand that because she undertook her childminding business from her home, significant events that happen in the home, even if they are outside of childminding hours, are potentially relevant to her childminding business and should be reported to the Respondent. This fundamental lack of understanding may expose a child to a risk of harm. (e) The Appellant failed to notify the Respondent of the allegations made against Mr Cox, or the issues with his alcohol consumption. It is alleged that when she was questioned by Ofsted Inspectors Susan Bradford and Johanna Holt, she was not open and transparent in her answers. If these allegations are proven, they put a question mark over her integrity and therefore her suitability as a childminder. 5.4 The Appellant’s evidence was that childminding is her only source of income, and she claimed to have been financially impacted as a result of the suspension. Notwithstanding, we decided that the continuing risk of harm to children in the Appellant’s care outweighed the financial and reputational impact on the Appellant. The suspension was therefore both necessary and proportionate.

6. Decision 6.1 The decision dated 6 November 2025 to suspend the Appellant’s registration as a childminder on the Early Years Register, the compulsory part of the Childcare Register and the voluntary part of the Childcare Register, for a period of six weeks is confirmed. 6.2 The appeal is dismissed. Judge O’Neill 09 December 2025