Secretary of State for Health v C
| Jurisdiction | England & Wales |
| Judge | Mr Justice Scott Baker,MR JUSTICE SCOTT BAKER |
| Judgment Date | 05 July 2002 |
| Neutral Citation | [2002] EWHC 1381 (Admin) |
| Date | 05 July 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1167/2002 |
[2002] EWHC 1381 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Scott Baker
Case No: CO/1167/2002
Mr Philip Coppel (instructed by Solicitor, Department of Health) for the Appellant
Mr John Crosfill (instructed by Burton Marsden Douglas) for the Respondent
1. By Section 1 of the Protection of Children Act 1999 (“the 1999 Act”) the Secretary of State for Health is required to keep a list of individuals who are considered unsuitable to work with children. On 2 October 2000 C's name was transferred to that list under Section 3 of the 1999 Act having previously been on the consultancy service index. Section 4 allows the right of appeal to a tribunal against such a transfer. C exercised that right and his appeal succeeded on 5 February 2002. The tribunal directed his name be removed from the list.
2. The Secretary of State for Health (the Appellant) now appeals against that decision under Section 9(6). C is the Respondent to the appeal. In order to preserve the anonymity of the Respondent and others, initials have been used in a number of instances. They are as follows:
• S1 is a female born on 15 November 1966 who for a time was a resident at the Z home and also fostered by C and M2, who was his wife in 1982.
• J is a step child of C born on 6 October 1981.
• S2 is a step child of C born on 25 September 1982.
• M1 is a child of C born on 9 February 1985.
• OC is a child of C born on 15 February 1988.
• The Appellant's appeal is on a point of law and is advanced under eight grounds.
The facts
3. C is an unqualified social worker who worked at a local authority community home, Z, from 1981. S1, who was 16 at the time, became a resident there. Between 4 February 1983 and 27 May 1983 she was fostered by C and his then wife, M2. She then went for a short time to another residential home before returning to Z. She returned to her parents on 6 February 1984 and in 1986 became ill and was admitted to hospital where she saw a social worker who made contemporaneous notes of what she was told. Eight years later in 1994 S1 saw a counsellor and as a result of what S1 told that person the local authority was contacted and an investigation took place. Two consultants were appointed. The first, Mr Marshall, was asked to look into the allegations and interview S1; the second, Mrs Ralphs, was asked to examine the social work files of S1 and report to the local authority on their contents. Neither consultant interviewed C or M2, any of the children or any of the staff at Z. Having received the reports of Mr Marshall and Mrs Ralphs C was placed on special leave. Meanwhile, further complaints about C reached the local authority. Some of these concerned allegations by former partners. There were also allegations of physical abuse by C of his stepchildren J and S2. A multi- agency child protection case conference took place on 19 January 1995 and a disciplinary hearing followed on 11 and 12 May 1995.
4. C gave evidence denying the allegations. The disciplinary tribunal found S1's allegations were proved and concluded that the results of the child protection investigation were such that there could be no trust or confidence in C as an employee dealing with young people. It concluded he should be summarily dismissed. C exercised his right of appeal but the decision was upheld on 14 July 1995. C subsequently and unsuccessfully appealed to an industrial tribunal and then the employment appeal tribunal claiming unfair dismissal.
5. The evidence of S1 as contained in a witness statement dated 17 July 2001 that was put before the tribunal complains of three specific incidents and other abuse which she has blocked out of her memory over time with the help of counselling. Two of these specific incidents were rape, the third was assault.
6. The second limb of the case was that some of C's children told the authorities he had ill treated them when they were young. The tribunal saw the videos of M1 and J. The allegations in summary were:
i) M1 said C used to pick up S2 by the legs and drop her and when she cried he used to put a cushion against her face to stop her. M1, who was nine at the time, did not think C was being rough but that C thought it was a joke. S2 laughed at first but then cried.
ii) J aged thirteen described four incidents, being locked in a bathroom for a long period of time, being forced to eat seaweed, being poked in the eye and being picked up by the scruff of the neck.
7. The tribunal was also referred to the minutes of a case protection conference held on 19 January 1995 where reference is made to an interview with S2 by a social worker in November 1994. There was an allegation that C hung S2 over the edge of a ferry when she was four, that he tried to smother her with a cushion after she and M1 had had an argument and that he used to poke her in the face with his finger.
The law
8. Section 4(1) of the 1999 Act provides that an individual who is included in the list kept by the Secretary of State may apply to the tribunal against the decision to include him on the list.
Section 4(3) provides:
“If on an appeal or determination under this section the tribunal is not satisfied of either of the following, namely –
(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm; and
(b) that the individual is unsuitable to work with children,
the tribunal shall determine the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.”
By Section 4(4) a conviction involving misconduct which harmed a child or placed a child at risk of harm cannot be challenged as to any finding of fact on which it is based.
9. Section 7 deals with the effect of inclusion on the list. Broadly, this restricts the person's employment in a child care position and certain other involvement with children.
10. Section 9 establishes the tribunal and Section 9(6) provides for an appeal to the High Court on a point of law.
11. Section 12, which is the interpretation section, defines harm as having the same meaning as in Section 31 of the Children Act 1989, that is ill treatment or the impairment of health or development.
12. The procedure of the tribunal is governed by the Protection of Children Act Tribunal Regulations 2000. These regulations were replaced by the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 on 1 April 2002, but the 2000 regulations govern the present case. I shall refer to certain of those regulations in a moment. Of particular relevance are Regulation 18, disclosure of information and documents, Regulation 19, expert evidence and Regulation 20 evidence of witnesses.
13. The purpose of the listing scheme is to protect children from those who are employed to work with them and to maintain public confidence in the care provided to children. Many of the children concerned are often among the most vulnerable in society and are not necessarily readily able to discern that harm is being caused to them. Listing under the scheme involves a difficult balancing exercise between the safety of children and the rights of individuals to have their livelihoods and reputations safeguarded. See Hale L.J in R v The Secretary of State for Health ex parte C [2000] EWCA 49. Mr Coppel, for the Appellant, quarrels with the reference to reputation because, he submits, the list is not published. The relevant information is only furnished to those who need to know e.g a prospective employer. I do not, however, accept this view. It seems to me that an individual's reputation will inevitably be tarnished by being on the list. It is very likely that, life being what it is, the word will get around when an individual's name is on the list quite regardless of the fact that the list is not a public document.
14. The first striking feature of the case is that neither S1 nor the Respondent gave evidence before the tribunal. The tribunal said it was placed in the extremely difficult position of having to assess a volume of evidence without the benefit of live evidence from either of them. The only live evidence the tribunal heard was from Mrs Sarah Donlan, the Area Commissioner of Childrens’ Services for Kent County Council, who gave evidence of the inquiry that took place in 1995 about the Respondent and the subsequent disciplinary proceedings against him. She did not, however, see S1 or any of the other children.
15. At the heart of the case lie the allegations that C raped and indecently assaulted S1. If true, the test in Section 4(3) is plainly satisfied. C was guilty of misconduct which harmed a child and is unsuitable to work with children. The section makes it plain that the burden of proof before a tribunal lies on the Secretary of State. The standard of proof is the balance of probability. The more serious the allegation, the stronger should be the evidence before the court is satisfied that the event occurred. See Lord Nicholls in Re H and others [1996] 1ALL ER1 and Lord Hoffman in Secretary of State v Rehman [2002] 1AUER 122,141. The tribunal correctly directed itself on this.
Against this background I turn to deal with the various grounds of appeal.
Ground one
16. This concerned the second limb of the case and the allegation that C had ill-treated his children when they were young. The tribunal concluded...
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