R v Secretary of State for Health, ex parte C
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LORD MUSTILL |
| Judgment Date | 21 February 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0221-7 |
| Docket Number | Case No: QBENF 1999/0500/C |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2000 |
[2000] EWCA Civ J0221-7
The Master Of The Rolls
Lady Justice Hale and
Lord Mustill
Case No: QBENF 1999/0500/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(MR JUSTICE RICHARDS)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
MR ALLAN LEVY QC and MR JOHN CROSFILL (instructed by Godfrey Davis Watt, Ramsgate, CT11 9AG for the Appellant)
MR NEIL GARNHAM (instructed by The Office of the Solicitor, Department of Health, London WC2A 2LS for the Respondent)
This appeal concerns the lawfulness of the Consultancy Service Index maintained by the Department of Health. This is a list of people about whom there are doubts as to their suitability to work with children. There is at present no statutory basis for such a list, although one will be supplied by the Protection of Children Act 1999 when brought into force. Underlying this issue is the balance to be struck between two important interests. One is the interest of any individual in safeguarding his reputation and livelihood against the serious interference which inclusion on anything like an official 'blacklist' may entail. The other is the interest of children living away from home, and the interest of the community which seeks to safeguard its vulnerable members, in effective protection from abuse and neglect and other risks to which they are subject, especially in residential settings, a need which has been emphasized in several recent reports.
The Consultancy Service Index
Such a list was informally maintained by the Home Office Children's Department Inspectorate from the 1930s until the Department of Health took over policy responsibility for children's services in 1971. It has since developed to its present form. The current guidance is contained in Annex C to the Department's Circular LAC 93(17). This states that 'The object is to make sure that, so far as possible, unsuitable people are not appointed to positions involving contact with children or responsibility for them.'
The list is compiled from (a) information supplied by employers when staff are dismissed or resign or are moved to a non child care post in circumstances where the welfare of children has been or may have been put at risk; (b) convictions or cautions notified by police when at the time the individual was working in the child care field; and (c) List 99 maintained by the Department for Education under s 218 of the Education Reform Act 1988. When a referral under (a) is received from an employer the Department includes the name on the list immediately but invites his representations. It is made clear that the person concerned has a right both to challenge the accuracy of the information provided by the referring agency and to make representations why their name should not be included on the list. Any representations are sent to the employer for comment. The Department then considers these and decides whether the employer's concern was reasonable. It must also be satisfied that the employer is prepared to provide such information to any prospective employer seeking a reference.
The list is not published. The Department expects all employers in the child care field to undertake full and proper pre-employment checks, including consulting the Index, but these checks should only be made once a decision to offer employment has been made. If no trace of the person is found the inquiry will be returned stamped 'no observations'. If a positive identification is made, a letter will be sent suggesting that a reference be sought from a named local authority or voluntary/private organisation. Unlike the person named in the list, a prospective employer is not told anything about the reasons for the referral, except for any criminal conviction.
This procedure enables prospective employers to be put in touch with previous employers who have had concerns. It does not operate as a legal bar to future employment. The decision rests with the prospective employer. But it would be unrealistic to ignore the powerful effect which inclusion on such a list will have upon a person's prospects of employment in the child care field: see Woolf MR in S v Newham London Borough Council [1998] 1 FLR 1061, at 1070H —1071B. In that case it was decided that referring agencies did not enjoy absolute immunity for their referrals.
The present case
The appellant was employed from 1981 as an unqualified social worker in a local authority community home. In autumn 1982, S became resident in that home. For a few months in 1983 she was fostered with the appellant and his family. In 1986, when she was a patient in a psychiatric hospital, she told a social worker that she had been sexually abused by the appellant, but for some unknown reason the matter went no further. In 1994, S made similar statements to a counsellor, not expecting them to be disclosed to anyone else. The counsellor disclosed this to the local authority. An investigation was carried out under the authority's disciplinary procedure. One officer interviewed S, while another studied her file and found the 1986 disclosure. The appellant was not formally interviewed about the allegations but was seen informally and strongly denied them. During the investigation other allegations were made of violence towards two female partners and physical abuse of two children.
A disciplinary hearing took place on 11 and 12 May 1995 before the Area Director of Social Services. She concluded, as to the allegations of sexual abuse, '… on the balance of probability, you were responsible for serious sexual assaults on a client of this department. This is gross misconduct and warrants summary dismissal.' She then considered the other allegations, which had led to a child protection case conference; she also referred to events, which had taken place before his employment, resulting in a three year supervision order on a child in his family; to the fact that he had two criminal convictions, one for assault; and to his non disclosure or denial of these matters upon inquiry. She concluded that 'I do not believe there is any way the department could continue to have trust and confidence in you as an employee working with vulnerable people in these circumstances and that these concerns alone would warrant your dismissal.'
An internal appeal was dismissed on 14 July 1995. The appellant applied to an industrial tribunal, claiming unfair dismissal. His application was dismissed by a decision notified on 17 April 1997. The tribunal concluded both that the employer had acted reasonably in the investigation carried out and that the dismissal came within the reasonable range of responses of a reasonable employer in the circumstances. Indeed 'we have to say that, bearing in mind the nature of C's employment, we do not see what else they could have done.' An appeal to the Employment Appeal Tribunal was dismissed on 3 July 1996 on the ground that it raised no sustainable point of law.
On 18 February 1997 the Department informed the appellant that his name had been included on the Index: they had been notified that he had been dismissed because of
'1. proven allegations of sexual assault by you on a child in care in a residential unit;
proven allegation of sexual assault on the same child when fostered by you;
proven allegations of physical assault on children in your private relationships leading to child protection investigations.'
In accordance with their practice they invited his comments. Representations were made on his behalf. These pointed out that the allegations made by S had never been tested and that the allegations of abuse of the other children had been tested in contact proceedings and the appellant's evidence preferred. The Department forwarded these representations to the local authority and also asked for the papers relating to the disciplinary investigation and hearing. On 5 March 1998 the appellant was informed that all relevant documentation had been very carefully considered and the decision taken to retain his name on the Index.
The appellant applied for judicial review to quash this decision. Three arguments were advanced on his behalf: (1) the Index could not be lawfully operated without Parliamentary authority; (2) the Department's decision was irrational and unfair; (3) the appellant had been denied a fair hearing in the determination of his civil rights and obligations, contrary to Article 6(1) of the European Convention on Human Rights.
In a reserved judgment handed down on 21 December 1998, Richards J rejected all three arguments and dismissed the application. He also refused permission to appeal. The appellant applied to this court raising all three arguments. Stuart Smith LJ granted permission on the first and third, because he considered that they raise important points which merit the consideration of the full court. He refused permission on the second because he considered that the judge was clearly right to conclude that the...
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