Law Report: Childminder who smacked can still be registered with council: Sutton London Borough Council v Davis - Family Division (Mr Justice Wilson), 16 March 1994.

It was for each local authority to decide whether to adopt an inflexible policy of only registering childminders under the Children Act 1989 if they refused to undertake not to use corporal punishment; but if the council decided to adopt such a policy, its decision in relation to any particular childminder could still be appealed to magistrates, who would then decide for themselves, on the evidence and in the light of official guidance, the question of that person's fitness to be a childminder.

Mr Justice Wilson dismissed an appeal by the London Borough of Sutton against the decision of the Sutton justices, on 8 July 1993, who allowed the appeal of Mrs Anne Hilary Davis, under section 77(6) of the Act against the council's refusal to register her as a childminder.

James Munby QC, and Caroline Rodger (Sutton Legal Services Dept) for the council; James Holman QC, and Howard Shaw (Spencer Gibson, Sutton) for Mrs Davis.

MR JUSTICE WILSON said that Mrs Davis, a trained teacher, had been registered under the Child Minders Regulation Act 1948 despite her reluctance to undertake not to smack children in her care.

In October 1991, the Children Act 1989 came into force, repealing the 1948 Act and introducing a new system for the registration of childminders. The council, having effectively adopted a policy of automatically considering any applicant, who declined to undertake not to smack a minded child, to be unfit to look after children under the age of eight, refused, under section 71(7)(a) of the new Act, to register Mrs Davis, who had declined to give such an undertaking.

The council conceded that in all other aspects Mrs Davis met their criteria well. It accepted that it was not unlawful for a childminder with the parent's consent to smack a minded child. Nor did the Act provide that a childminder should not be registered if she refused to undertake not to smack.

The council had adopted that policy in reliance on volume 2 (the 'Blue Book') of the 10 volumes of guidance and regulations on the 1989 Act issued by the Department of Health in 1991, which stated, in paragraph 6.22: 'Corporal punishment (smacking, slapping or shaking) is illegal in maintained schools and should not be used by any other parties within the scope of this guidance.'

But it was important to read that guidance in the overall context of the Blue Book, which did not only relate to childminding. It also stressed in, paragraph 6.12, the importance of parental involvement, and in paragraph 6.47, the necessity for clear understanding between parent and childminder as to the arrangements agreed between them, including 'policy on behaviour and sanctions'.

In adopting a blanket policy the council went beyond the guidance of the Blue Book and therefore went beyond the discharge of its legal duty, under section 7 of the Act, to 'act under the general guidance of the Secretary of State'.

The council argued that even if it was not obliged to adopt the policy, it was nevertheless lawful, and it was therefore not open to the justices to query it. The only question for them was whether Mrs Davis was covered by the policy.

His Lordship found that proposition profoundly unattractive because it effectively rendered nugatory an ostensibly unqualified right of appeal under section 77(6) of the 1989 Act. But it relied too heavily on the lawfulness of the council's policy. A decision could be lawful without being correct.

Parliament had provided a right of appeal to the justices, who considered a childminder's fitness for themselves, standing in the council's shoes. In so doing, they took into account, as the council would, the guidance in the Blue Book.

Here the justices found the council gave 'too much weight' to the guidance on corporal punishment. The inflexibility of the council's policy made it impossible to reach a reasonable decision on Mrs Davis's overall 'fitness'. They council had failed to carry out the correct balancing exercise in determining her fitness to be registered. His Lordship could discern no error in the justices' reasoning.

The current position in law was as follows: it was a matter for each local authority to decide whether to elevate the guidance on corporal punishment in the Blue Book into an inflexible policy, that those who refused to undertake not to smack would for that reason alone be declared unfit to look after children. But if it decided to adopt such a policy, its decision could be appealed to justices who must weigh the issue of fitness for themselves in the light of the guidance.