The tragic incident took place in July 2019 when Fox Goulding was eating dinner at Bright Horizons Corstorphine Nursery in Edinburgh.
On Tuesday the nursery group admitted failings under Health and Safety at Work legislation at Edinburgh Sheriff Court and was fined £800,000.
Bright Horizons Family Solutions pled guilty to failing to provide employees at the nursery with suitable instruction and supervision to adequately control the risk of choking during mealtimes.
The court heard the Corstorphine nursery has closed permanently.
An investigation found Bright Horizons failed to provide employees at the nursery with suitable instruction and supervision to adequately control the risk of choking during mealtimes.
It also found that there were a number of occasions between May 21 2019 and July 9 2019 when staff were involved with other tasks and not supervising children eat.
Alistair Duncan, head of the health and safety investigation unit of the Crown Office and Procurator Fiscal Service (COPFS), said, 'This tragic death could have been prevented if staff had been given suitable instruction and supervision in relation to their duties to properly supervise children's mealtimes.
'Childcare providers have an enormous responsibility to ensure the safety and wellbeing of the children in their care, but in this case, Bright Horizons Family Solutions Ltd failed to live up to that responsibility.
'This should serve as a warning to others of the devastating consequences of such failures.'
Peter Gray QC, acting for Bright Horizons, said the group accepted that supervision policies at mealtimes were ‘not being implemented at all times’.
Bright Horizons said it has reviewed its safety procedures at mealtimes, staff training and supervision.
Managing director Ros Marshall said, ‘Our thoughts continue to be with Fox Goulding and his family. There are no words which are adequate to console them and we offer our heartfelt apologies.
‘Our acceptance of responsibility makes clear that the mealtime safety procedures we had in place at our Corstorphine Nursery in 2019 were not properly observed, with terrible consequences.
‘Every day we care for children and fully appreciate that keeping children safe is always the first priority. We have comprehensively reviewed how we operate, including all our mealtime safety procedures, staff training and our supervision arrangements, to ensure that the right lessons were learned from this tragedy.
‘Fox’s memory will forever live on in our hearts and minds, influencing our practice and shaping our approach to keeping everyone safe.’
Edinburgh City Sheriff Court heard on Tuesday how a nursery nurse sitting next to Fox during the mealtime had left the room to go to the toilet, the Daily Record reported.
When she returned she believed the boy was asleep before realising he was not breathing.
Fox was taken to hospital but died the following day. It was found he’d choked on a piece of mango measuring 3cm x 2.2cm x 1.5cm.
Sentencing the company, Sheriff Wendy Sheehan said it had ‘systems in place’ over the supervision of eating, but they were ‘not sufficiently adhered to or implemented’.
She said 24 employees were working there, but CCTV showed children were ‘routinely’ not supervised while eating for a ‘few minutes’ and up to the ‘whole mealtime’, with Fox left unsupervised for ‘several minutes’ when he choked.
The nursery had been through a significant turnover of staff, the court heard, and a support team had been put in place by Bright Horizons to help cope with the workload.
That extra support was withdrawn on May 21 and Fox, who had only been attending the nursery for seven days when the incident happened on 9 July.
In her 22-page narrative of the events, fiscal depute Siobhan Ramage told how Fox was taken to nursery that morning by mum Fiona.
A nursery practitioner fed Fox a lunch of pasta bolognese and ‘there were no issues’, staff said. The toddler was put down for a sleep and had ‘free play time’ between 2pm and 3.30pm.
At 3.45pm the nursery manager brought the children’s food into the under-two’s room. Fox was seated at one of two tables with four other children to eat.
The court heard a nursery nurse sitting next to Fox was given permission to go to the toilet from the room leader at around 4.20pm as youngsters ate raspberries and mango.
There were ‘six members of staff in the various areas of the room’, either tidying up, dealing with other children, speaking to parents collecting their kids, or supervising eating at the second table.
When the nursery nurse who went to the bathroom returned to Fox’s table, she believed he was sleeping.
It was then noticed his ‘face was blue and his lips purple’ and he wasn’t breathing. The nursery nurse recalled giving Fox around 15 back slaps to try to dislodge anything in his airway.
Staff called for an ambulance and made desperate attempts to give Fox CPR, with the first paramedic arriving at 4.29pm.
Fox was taken to the Sick Kids Hospital in Edinburgh but died the next day.
