England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Maurice Kay)

		Royal Courts of Justice Strand London WC2 Thursday, 18th January 2001

Thursday, 18th January 2001

1. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against a decision of Maurice Kay J dated 10th November 2000, permission having been refused on the documents by Hale LJ. The applicant had been the head teacher of a secondary school for boys excluded from mainstream education because of emotional and behavioural problems. He is currently suspended from that position. The respondent is the local education authority responsible for the school.
2. Before Maurice Kay J the applicant had sought judicial review of two decisions of the respondent authority: first, a decision by a disciplinary panel of governors of the school recommending his dismissal, that decision having been communicated to the applicant by a letter dated 11th November 1999 (that has been known as "decision A" and I shall continue refer to it in that way); second, a decision by a meeting of the respondent's social workers communicated by letter of 22nd November 1999 that there was sufficient information to form a belief that there was reasonable cause to believe that the applicant posed a risk of significant harm to children in his care.
3. The hearing before the judge lasted four full days. The decision was a reserved one. The applicant now seeks permission to challenge also a further decision by social workers made on 28th January 2000 which, in effect, reconsidered decision B but arrived at the same conclusion. This decision was not formally a matter challenged in form 86A in the proceedings, nor, therefore, has there been any decision by the court below in respect of it. It is, however, virtually on all fours with decision B, and it may well be that the parties would wish to treat the two decisions as effectively being the same for present purposes.
4. The factual background to this matter is complex and lengthy. For present purposes it is adequately set out in the judgment of the court below. Therefore, I do not propose to rehearse those facts in this brief judgment, but I will concentrate on the main grounds now put forward on behalf of the applicant.
5. There are some 23 grounds of appeal advanced in all. Mr Patrick Ground QC has this morning, very helpfully, condensed them into four main points, two dealing with each of the two decisions which were challenged in the proceedings. It is convenient to deal with them in respect of the two different sets of proceedings which are involved and to begin with those which produced decision B, and indeed C, because those have been put forward first in the course of argument, as indeed they are presented first in the appellant's notice.
6. Here Mr Ground relies on the Children Act 1989 section 47. He accepts that the local authority was entitled to carry out an investigation under section 47, but he attacks the judge's decision in respect of the conclusion reached by the Beliefs Meeting, as it has been called. Above all, he attacks the action which they then took, namely to write to the Director of Education and through him to the Chairman of the governors of the school to inform him of their conclusion that A presented a risk to children. That, it is said (and it seems to me that the respondent agreed), was an action taken under section 47(8). It is unnecessary to set out the terms of that provision for present purposes. The judgment of the court below indicates that that was the power which was relied upon by the respondent for the action which it took of writing to the Director of Education to express that belief.
7. It is argued, first of all, that if Parliament had intended a local authority to issue such a communication under section 47 it would have expressly provided for it. Mr Ground accepts that this means that, however strong the evidence, no such power exists in the local authority. Secondly, it is said that if the authority does have such a power to communicate with others under section 47, then the power should only be exercised on the basis of credible factual evidence acceptable in terms of the decision of the House of Lords in Re: H [1996] AC 563.
8. As to the first of those two points, on the face of it section 47(8) does not limit the action which a local authority can take as the result of an investigation which they have properly carried out. It does not appear on the face of it to be limited to seeking court orders as, I think I am right in saying, Mr Ground was essentially submitting. Indeed, the words in parenthesis in that subsection tend to suggest that it is open to the authority to take any step which they otherwise have the power to take. But Mr Ground refers to, and relies on, the Court of Appeal decision in Re: L [1999] 1 FCR 308, which contains observations on the limits of the power to pass on information under section 47. In particular, there are comments made by Butler-Sloss LJ at paragraph 11 of her judgment, a judgment with which the other two members of the court agreed. In particular, Butler-Sloss LJ said this:

"Local authorities are however creatures of statute and neither s 17 nor s 47 places upon a local authority the general duty to inform other areas of the movement of those found guilty of sexual abuse in care or other family proceedings. Neither s 17 nor s 47, in my judgment, supports the case for disclosure on the facts of either of these appeals."

9. Of course, in this particular case we are concerned with the communication by one department of the county council, the Social Services Department, to another department, the Education Department, and school governors. That, however, does not necessarily seem to me to destroy the argument being advanced on behalf of the applicant. Again, that passage from the judgment in Re: L is expressed in terms of a duty on the part of a local authority, whereas here we are concerned with whether there is a power under section 47 to take the action which has been taken. Again, although I can see that there may be an argument as to that, what the Court of Appeal was principally concerned with in Re: L seems to me to have been more the existence of a power than the existence of a legal duty. I can see that there is a point to be derived from that case, particularly bearing in mind the very great significance which such action by a Social Services department could well have for A's future employment by any local education authority. It is a matter of considerable gravity if the belief which has been arrived at by the Beliefs Meeting were to be communicated not merely to this education department but indeed to others up and down the country. In addition, I accept Mr Ground's point that the case of Gogay v Hertfordshire County Council (unreported) 26th July 2000, which was referred to by Hale LJ in her written reasons for refusing permission, was a case concerned with the right of an authority to carry out the investigation under section 47 rather than with what it did as a result of the investigation which it had carried out. The argument which has been advanced this morning, I should say in fairness to Hale LJ, has put the emphasis somewhat differently from that which would have been gleaned from the written grounds of appeal. With some hesitation, therefore, I propose to grant permission to appeal on that point in respect of decision B.
10. I am less persuaded by the arguments based on Re: H, which form the essence of the second point being made on behalf of the applicant in this context. That was a case which was dealing with what a court requires by way of evidence before it makes a care order or similar order. The basis required for a local authority's action in seeking an order or deciding to take any other step is not the same as the basis required for a court to make a statutory order, such as a care order. To carry out an investigation a local authority under section 47 is not required to do more than to have "reasonable cause to suspect". Section 47 is, after all, concerned with investigation. All that section 47(8) requires implicitly is that there should be material on the basis of which the authority can properly arrive at a view as to what action it should take. It is important that its powers are limited without the intervention of a court to make some legal order.
11. In the present case the Beliefs Meetings had before them the allegation by B, the boy whose allegations sparked off the investigation. It is right that the applicant was acquitted by a jury of this particular charge. That does not mean that that allegation became irrelevant -- it had never been withdrawn -- nor does it mean that it could not be proved on the balance of probabilities as opposed to being proved to the criminal standard which, of course, was required in the criminal proceedings. As the judge below indicated, the trial judge in the criminal proceedings had rejected a submission that there was no case to go to the jury. Moreover, even before the initial strategy meeting on 24th July 1998 there had been an agreement by the applicant not to take pupils on his barge without parental consent in writing and another adult being present. The meeting in June 1999 of social workers and others had general evidence about boys being taken on the applicant's barge, about skinny-dipping and other activities and they and subsequent meetings were clearly concerned about a pattern of behaviour.
12. It is clear from the details of the reconvened meeting of 8th November 1999 that the social workers were concerned about the flouting of clear written instructions from the local education authority. It seems to me, therefore, that there was here an adequate factual basis sufficient for the purpose for the Beliefs Meeting to arrive at a belief that there was the risk to children from the applicant, a belief which they formed. It was a matter for them as to whether they reached that conclusion or not. The challenge to it has been advanced, as it was before the learned judge, on the basis of Wednesbury unreasonableness; in other words, that that was a belief to which no reasonable meeting of such persons with the evidence before them could come. Social workers under section 47 in arriving at such beliefs are entitled to take into account allegations and suspicions in a way that a court of law in considering a care order could not. I propose, therefore, to grant permission to challenge decision B, but only on the first of the two grounds advanced.
13. I turn to the disciplinary proceedings. Here it is said, first of all, that the disciplinary proceedings were tainted by the belief reached by the social workers and by the communication to the Director of Education from the Director of Social Services by letter dated 6th August 1999 informing him of the view which they had reached. There were, says Mr Ground, references in the course of the hearing to innuendo and possible sexual abuse. However, he concedes that the letter of 6th August 1999 from the Director of Social Services was not put before the disciplinary panel and was not referred to in the course of the hearing. In those circumstances it seems to me that it cannot be argued that that communication tainted the disciplinary proceedings and that the judge's decision in this matter cannot be faulted on that basis.
14. There are some arguments raised in the grounds about the way the case was conducted by the respondent at the hearing. It is alleged that there was a breach of natural justice because counsel for the county council at the hearing opened the case in a particular way, speculating about the reason why the applicant had flouted the conditions attached to the instruction from the education authority and to the agreement of April 1998. What happened is described at paragraph 56 of Maurice Kay J's judgment. For my part, like the judge below, I cannot see how that amounted to a breach of natural justice or, even in a broader sense, an unfairness. The applicant was represented by counsel, who no doubt made the point forcibly that none of the charges faced by the applicant alleged sexual impropriety on his part. The charges were of a blatant failure to comply with education authority instructions about conditions under which he could take boys from the school on his barge. If there was evidence that the disciplinary panel had taken into account an allegation of sexual impropriety by the applicant, that would be a different matter. That would amount at least to a taking into account of an irrelevant consideration. But, as the judge below rightly found, there was no evidence of that. There was no evidence that this aspect of the matter, the way the case was opened by the counsel for Hertfordshire County Council, influenced the panel's decision at all. The same situation obtains in respect of the suggestion apparently made in cross-examination of the applicant that he had been "grooming" pupils for later sexual abuse. Again, there is no evidence that this formed any basis of the panel's decision.
15. Mr Ground also has raised the alleged change to the arrangements which form the subject of complaint number 4. Complaint number 4 was an important matter because that was the complaint which produced the conclusion of gross misconduct as opposed to the other findings of misconduct. It is said that the judge misunderstood the evidence on this and misdirected himself. What the judge described in the course of his judgment can be seen at paragraph 6 thereof. He is clearly basing that description on the witness statement which was before him from Caroline Marie Morgan, a solicitor from the county council's legal department who was present at the hearing. Her statement summarises the evidence given to the panel. The applicant challenges that version of what happened; and he has now exhibited a statement by one of the boy's mothers supporting his account. That statement is dated 2nd March 2000. The point is that that statement, though it was before the judge below, was not before the disciplinary panel in November 1999.
16. Judicial review is concerned with the lawfulness and fairness of the decision of a public body and the decision of November 1999 cannot be faulted by such subsequent evidence. The right remedy, if there is further evidence of that kind, is to use it through the disciplinary appeal procedure. That is a procedure which I understand has been put in train but which has not yet concluded. There is to be a further hearing, but that has not yet taken place. I can see no basis for criticising the judge's decision on this aspect of the case.
17. The final matter which has been raised orally on behalf of the applicant today concerns the composition of the disciplinary panel. As to this it should at the outset be borne in mind that this is part of an employer's disciplinary processes and has to be seen in that employment context. In the private sector it is normal practice to have a panel in such cases drawn from senior staff of the employer, and there can be no criticism of that or any implication of automatic bias. Of course in the present case the matters are, so far as procedure is concerned, dealt with by certain regulations. But, in itself, there is nothing wrong, nor does Mr Ground suggest that there is anything wrong, in the disciplinary panel being composed of a number of governors of the school in question. He has reiterated certain specific arguments about two of the members of the panel who formed the majority, namely Mrs Smith and Mr Jennings. Those particular arguments were dealt with fully by the judge below: see for example paragraphs 20-23 of his judgment in respect of Mrs Smith. I can see no basis for challenging the views at which the learned judge arrived in respect of those individuals.
18. So far as the point is raised that the panel was not entitled to have a legal adviser from Hertfordshire County Council present, that seems to me to be wholly unarguable. I can see no reason why the panel should not be given legal advice by a member of Hertfordshire County Council's legal department, bearing in mind that this was a disciplinary panel set up by the employer. The panel needed legal advice, and there is no reason why it should not be obtained in that way. As Mr Ground has said, the rules allow an adviser from the personnel department of the county council to be present at the hearing to give advice, and I can see no reason why that same latitude should not extend to someone from the county council's legal department as well.
19. The grounds in writing also raise issues about the composition of the appeal panel. That has been touched on in passing by Mr Ground today. That seems to me to be irrelevant for present purposes. The appeal panel has not met, its decision has not been arrived at and, of course, does not form the subject matter of any of the decisions which are now under challenge. There has been no relief sought in respect of the composition of the appeal panel by way of prohibition or any other order by this court. That falls outwith the scope of the proceedings with which this court is concerned.
20. I have considered all the other grounds raised in respect of decision A in the appellant's notice. None of them, in my judgment, afford any real prospect of success. The judge dealt with those matters in a way in which he was entitled to, and I adopt his reasoning. Not only can I see no real prospect of success for an appeal against decision A taken by the disciplinary panel, I can find no other compelling reason to allow this appeal to go ahead. Consequently, permission to appeal in respect of decision A will be refused. In respect of decision B permission is granted to the limited extent which I have indicated in this judgment.
21. I will, because this matter seems to me to be of some urgency, order expedition in relation to the hearing of the appeal to the extent to which I have allowed it. All other grounds of appeal are rejected as any basis for appeal, even against decision B.
Order:Application allowed in part. Costs to be costs in the appeal. (ORDER DOES NOT FORM PART OF APPROVED JUDGMENT)