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England and Wales Care Standards Tribunal

You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Glover v Secretary of State for Health [2002] EWCST 3(PC) (24 May 2002)
URL: http://www.bailii.org/ew/cases/EWCST/2002/3(PC).html
Cite as: [2002] EWCST 3(PC)

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Glover v Secretary of State for Health [2002] EWCST 3(PC) (24 May 2002)

Joan Glover v Secretary of State for Health

Hearing dates: 10^th and 13^th May 2002

John Reddish
(Chairman)
Bez Chatfield
Linda Redford

DECISION

Application

On 3^rd April 2001 Miss Joan Glover (the applicant) appealed under section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Health to include her in the list kept under section 1 of that Act.

Mr Philip Coppel of Counsel represented the Secretary of State and Miss Sandhya Drew of Counsel represented the applicant.

Preliminary

The Tribunal made a restricted reporting order prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the children (referred to in this decision as "A", "B", "C" and "D") with whom the applicant worked and who gave evidence to the Tribunal of Inquiry into the abuse of children in the former County Council areas of Gwynedd and Clwyd (referred to in this decision as "The Waterhouse Inquiry").

The Tribunal rejected an application, made on behalf of the applicant, that there should be a similar order in relation to the applicant herself. The applicant was named by the Waterhouse Inquiry and, as is apparent from the documents submitted as an annex to Miss Drew’s written submissions to the Tribunal, her name and photograph appeared in written publications available to the public in February 2000. The Tribunal concluded that, in the event that her appeal were allowed, it would be wrong to prevent the applicant identifying herself in a written publication or broadcast as part of any rebuttal of allegations publicly made against her which she might wish to make. The Tribunal recognised that, in the event that her appeal failed, the applicant might wish to prevent her name being published or broadcast for the protection of her own privacy and that of members of her family. However, the Tribunal could see no justification for making the determination of whether there should be an order restricting the reporting of the name of the applicant dependent upon whether the outcome was favourable or unfavourable to her. Restricted reporting orders can be made either to safeguard the welfare of children or vulnerable adults or to protect a person’s private life or to avoid the risk of injustice in any legal proceedings. The Tribunal was not satisfied that an order restricting the identification of the applicant was justified on any of these grounds in this case.

For the same reasons the Tribunal rejected the application made on behalf of the applicant for a direction that members of the press and members of the public be excluded from the hearing. No one was excluded from the hearing.

Evidence and the findings of the Waterhouse Inquiry

Mr Coppel submitted that, although the findings of the Waterhouse Inquiry were not binding on the Tribunal, those findings should be afforded respect and given significant weight by the Tribunal. He submitted, further, that the Tribunal should follow the approach previously adopted by the Tribunal in the case of Michael Barnes (Case number: 0070) and should be slow to depart from findings of an Inquiry governed by the Tribunals of Inquiry (Evidence) Act 1921. Mr Coppel adopted the submissions made by Counsel for the Secretary of State in the case of Barnes to the effect that the approach of the Tribunal should be to give proper respect to the status of the Waterhouse Inquiry and to give proper weight to its findings while fulfilling its duty to satisfy itself of the matters set out in section 4(3) of the Protection of Children Act 1999, allowing new matters to be raised where appropriate and avoiding the piecemeal re-hearing of the Waterhouse Inquiry.

Miss Drew submitted that the conclusions of the Waterhouse Inquiry were not findings of fact in the usual sense but were general findings about an oppressive regime and therefore not sufficiently specific to be relied upon; that the conclusions of the Inquiry should be treated with great circumspection by the Tribunal because the procedure followed by the Waterhouse Inquiry was unfair to the applicant and did not comply with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and that the Tribunal should act as a "court of full jurisdiction" (as that term was used in the decision of the Judicial Committee of the Privy Council in Preiss v. General Dental Council [2001] 1 WLR 1926) and thus remedy any defects in the procedure followed by the Waterhouse Inquiry by carefully reconsidering all of the relevant evidence.

The Tribunal noted that section 4(4) of the 1999 Act provides that "where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination under this section" but that Parliament did not extend section 4(4) so as to include findings made by Tribunals of Inquiry. Accordingly, the Tribunal was satisfied that it was clearly not bound by any specific findings made by the Waterhouse Inquiry.

However, the Tribunal rejected any suggestion, whether express or implied, that it should, in effect, hear an appeal from the findings of the Waterhouse Inquiry. The Tribunal concluded that it would be wrong and impertinent for it to enter into any analysis of the procedures adopted by the Inquiry. The Tribunal’s function is circumscribed by section 4(3) of the 1999 Act.

Section 4(3) of the 1999 Act provides that, if, on an appeal, the Tribunal is not satisfied that the individual applicant (a) was guilty of misconduct which harmed a child or placed a child at risk of harm and (b) is unsuitable to work with children, the Tribunal shall allow the appeal. The burden of proof is thus placed upon the Secretary of State. He was entitled to rely upon the findings of the Waterhouse Inquiry and was not required to adduce oral evidence from the same witnesses who gave evidence to that Inquiry in order to discharge that burden. Principles of natural justice and the right to a fair hearing enshrined in Article 6 of the European Convention do not require the Tribunal to determine every factual dispute afresh. The Tribunal was not prevented from giving weight to the evidence of witnesses simply because they did not give oral evidence. The Tribunal can receive hearsay evidence. The weight to be attached to such evidence is often diminished by the fact that the witness is not seen by the Tribunal and is not subjected to cross-examination during its proceedings. However, this may not be so when the witness, though neither seen nor heard by the Tribunal, was seen and heard by a major Public Inquiry chaired by a former High Court Judge and was found by that Inquiry to be accurate in his recollection.

The Tribunal accepted Mr Coppel’s submission that it should give substantial weight to the findings of the Waterhouse Inquiry but took the view that it should still look closely at the evidence that was before that Inquiry (available in the form of transcripts) and analyse it in the same manner as it would analyse any evidence.

The Tribunal found that, contrary to the indication (given in paragraph 17.32 of the Report of the Waterhouse Inquiry) that the Inquiry "heard" evidence from a girl for whom Miss Glover had a special affection, the child in question (referred to in this decision as "A") did not in fact give oral evidence to the Inquiry. Accordingly, the Tribunal decided to treat her written statements with some circumspection and to look carefully for corroboration of the allegations made by her, either in the form of admissions by the applicant or of independent evidence from others, when considering whether to accept them.

The Tribunal read all of the written evidence submitted on behalf of the Secretary of State; heard oral evidence from the applicant and Mr Keith Campbell and read the witness statement of Reverend Tyndale Courts submitted on behalf of the applicant.

Facts

The material facts found by the Tribunal were as follows:

The applicant was born on 22^nd July 1947 and is now 54 years old.

On 1^st October 1968, when she was 21 years old, the applicant commenced work as a housemother in the Community Home in Prestatyn, Flintshire known as South Meadow.

From about 1969 the applicant physically assaulted A, who was accommodated in the Home from 1969 (when she was 3 years old), by spanking her with her hand and with a slipper or sandal. The spanking happened regularly and frequently. On some occasions, after administering corporal punishment to A, the applicant hugged her, apologised to her for hitting her and praised her.

Another child (referred to in this decision as "B"), who resided, with his 2 brothers, at South Meadow from 1968 until 1977, found the applicant to be "a Jekyll and Hyde" character. B suffered from persistent nocturnal enuresis and felt that the applicant "took against" him because of this. B saw the applicant assaulting one or other of the children in the Home on an almost daily basis. He was himself hit on the head and legs by the applicant, either with her hand or with one of the wooden sandals that she habitually wore, as punishment for minor misdemeanours. On occasions, the applicant lost her temper completely and slapped B repeatedly. The applicant also grabbed B by his hair on several occasions.
In 1973 the applicant undertook a year’s training course for residential child care officers at the Salford Institute of Technology and then returned to work at South Meadow.

On 1^st January 1974 the applicant was appointed as the Officer-in-Charge at South Meadow.

In or about July 1974 the applicant received a memorandum from the Director of Social Services for Clwyd, dated 20^th June 1974, setting out the authority’s policy on corporal punishment. The memorandum recorded that "no member of staff will inflict corporal punishment on any child or young person in any circumstances (corporal punishment to include striking, slapping, pushing etc.)" and drew to the attention of all staff that any infringement of this policy would be "viewed with the utmost gravity".

On 26^th August 1975 the applicant was involved in a violent incident with a child (referred to in this decision as "C"), then aged 13. The applicant took hold of C, turned her round and slapped her across the face. C had herself just hit A, who was then 8 years old, across the face, knocking her over. The applicant (as she later admitted) "lost her rag" with C because she had been very troublesome on this and other occasions.

On 29^th September 1975, following a meeting with the Deputy Director of Social Services for Clwyd, Mr Jones and the Principal Residential and Day Care Officer, Mrs Pares, the applicant received a written warning and reprimand by a letter dated 3^rd October 1975 from the Director of Social Services (page D34 of the Tribunal bundle).

During 1978 and 1979 the applicant frequently "lashed out" at children in her care and often threatened, and sometimes used, violence against them.

On 21^st June 1979 members of the residential care staff at South Meadow told the Area Officer, Mrs Griffiths of their concern about the applicant’s behaviour. They reported that the applicant was shouting at the children and was extremely irritable, tense, impatient and intolerant and that the children were becoming frightened by her behaviour. In her report, Mrs Griffiths added that, to her own knowledge, the applicant had "no outside interests", was "very insular" and was "not delegating work to her staff".

In August 1979 the applicant told Clwyd County Council’s Principal Officer, Mr Wyatt and the authority’s Staffing Officer, Mr Grant that she was unaware of "anything amiss" at South Meadow.

On 14^th August 1979 members of the residential care staff at South Meadow reported to Mr Wyatt and Mr Grant that the applicant appeared to be "suffering from ‘stress’ to a degree that it was affecting the staff relationships within the home"; that the applicant was "shouting and screaming at the children" and was "showing occasional fits of temper in front of the children and staff". They added that, since Easter 1979, the applicant had been "showing inconsistent caring, impatience and irritability" and that the applicant’s present behaviour was "unacceptable".

On 20^th August 1979, following a meeting with Mr Wyatt and Mr Grant and a period of reflection, the applicant agreed that she would take four weeks leave from 1^st September 1979 and that thereafter she would become a non-resident Officer-in-Charge.

When the applicant returned from her period of leave there was little, if any, improvement in her behaviour at work. In November 1979 Mrs Ann Worthington, a housemother at South Meadow, disclosed to the Deputy Area Officer, Mr Davies that 3 boys who were resident at South Meadow feared physical chastisement and had alleged that the applicant habitually punished them by hitting them on the head. Mrs Worthington also reported that A had developed a "nervous tic" as a result of "constant pressure" and "continual shouting" directed at her by the applicant. Finally, Mrs Worthington said that she had heard, but not seen, the applicant striking A with her hand.

From November 1979 until February 1981 the applicant continued to administer corporal punishment to A by striking, slapping or pushing her. The "numerous specific incidents of abuse" (as they were later described) were often followed by apologies by the applicant. A suffered considerable anguish as a result of her treatment by the applicant and, on occasions, ran away and made complaints.

The applicant had a "strange relationship" with A. Other children perceived A to be the applicant’s "favourite" but noted that the applicant frequently "fell out" with A when she did something wrong and frequently screamed at her and hit her.

Between November 1979 and January 1980 the staff at South Meadow again expressed their anxieties about the applicant. They said that the applicant was hitting children and subjecting them to harsh treatment and that she was "quite paranoid".

In March 1981 the applicant left South Meadow after she had been appointed to the post of Officer-in-Charge at Belgrave House, a hostel in Clevedon, Avon run by the Pentecostal Child Care Association.

In 1982, at her own request, A moved to live at Belgrave House. The move was not successful. A often indulged in attention-seeking behaviour and was disruptive. In June 1983, A (then aged 17) left Belgrave House after experiencing many difficulties with the applicant and others and taking an overdose of tablets.

On 1^st April 1993 the applicant was interviewed by 2 police officers at Clevedon Police Station about complaints which had been made against her by A and others in 1992. During the interview, the applicant admitted that she had "shouted and screamed" at A and that she had "smacked her on her bottom more than once". She also admitted that, "possibly on a number of occasions", she had "grabbed [A] by her hair" and that this was "not the right thing to do". The applicant further admitted that she had "waved a ruler" at another child (referred to in this decision as "D") by way of a threat of violence to her but denied ever using the ruler to chastise D and denied D’s allegation of a serious assault upon her by the applicant in a toilet at South Meadow. The investigating police officers reported the case to the Crown Prosecution Service but the Service decided not to institute criminal proceedings against the applicant. The applicant was informed of this decision on 18^th June 1993.

In August 1993 the applicant was made redundant by the Pentecostal Child Care Association.

In September 1994 the applicant obtained employment as a Family Support Worker with Staffordshire County Council.

On 17^th June 1997 the applicant gave oral evidence to the Waterhouse Inquiry. She made several admissions:

(at page 9637 of the transcript) that she became "frustrated" when children said that they were not going to do as they were told and "used a slap as a last resort";

(at page 9639 of the transcript) that she "lost her rag" with C who had been "particularly difficult" and "grabbed hold" of her and "slapped her once";

(at page 9650 and 9651 of the transcript) that she had shouted at and smacked children in the face and on the bottom when angry;

(at page 9651 and 9652 of the transcript) that she had put a 5 or 6 year old child across her knee and smacked the child on his or her bottom notwithstanding that she realised that smacking or slapping was not permitted and that any infringement of this policy would be "viewed with the utmost gravity";

(at page 9653 of the transcript) that she had, on 2 or 3 occasions, yanked children towards her by their hair;

(at page 9656 of the transcript) that a report that she had been "shouting at the children" and had been "very tense, impatient and intolerant" and had frightened children by her "unusual behaviour" was a "fairly accurate picture" of her condition in 1979;

(at page 9677 to 9679 of the transcript) that she had smacked A on her bottom or on the backs of her legs on several occasions and "might have put A across her knee and smacked her;

(at page 9681 of the transcript) that she had, when A was 10 or 11 years old (i.e. in 1976 or 1977), on occasions, grabbed her and made her go up to bed, using physical force.

The applicant denied the allegations made against her by B, in particular his allegation that she had disciplined and humiliated him after he had wet his bed (page 9692 of the transcript) and said that B "would have a slap when he was little" but that she did not remember having to discipline him as he got older (page 9688 of the transcript).

The Waterhouse Inquiry concluded (paragraph 17.35 of the Report dated 15^th February 2000) that the staff concerns about the applicant’s behaviour towards the children at South Meadow were fully justified and that the evidence given to the Inquiry by A and B gave a fair picture of the extent to which the applicant abused children. The Inquiry also concluded that the applicant "had serious temperamental or character defects which disabled her from carrying out her work as Officer-in-Charge in an appropriate manner".

The Waterhouse Inquiry also concluded (paragraph 17.40 of the Report) that the applicant’s conduct as Officer-in-Charge at South Meadow was "erratic and oppressive" and that she was "unsuitable" for that post and should have been dismissed in 1979 when the staff voiced their great concern about her conduct.

By a letter dated 10^th March 2000 the Department of Health informed the applicant that her name had been included temporarily on the Consultancy Service Index.

In June 2000 the applicant was redeployed by Staffordshire County Council to a post in their Housing Department which does not involve her dealing directly with either children or adults.

By a letter dated 29^th September 2000 the Department of Health informed the applicant’s solicitors that the applicant’s name had been retained on the Consultancy Service Index.

By a letter dated 4^th January 2001 the Department of Health informed the applicant that the Secretary of State had decided that it would be appropriate for her name to be included in the list established under section 1 of the 1999 Act.

In her statement lodged in support of her appeal to the Tribunal, dated 4^th February 2002, the applicant admitted that:

she disciplined B and his brothers using "anything from telling them off to slapping them…once or twice across the legs or bottom";

she slapped the children "as a last resort when other attempts at disciplining them had failed";

she lost her temper and slapped C once across the face on 26^th August 1975;

she smacked A on several occasions on the bottom or on the back of her legs with her hand; and

on some occasions she physically grabbed A by the arms or shoulders and pulled or pushed her upstairs.

The law

Under section 4(3) of the 1999 Act, if the Tribunal is not satisfied that the individual applicant (a) was guilty of misconduct (whether or not in the course of her duties) which harmed a child or placed a child at risk of harm and (b) is unsuitable to work with children, it must allow the appeal. If the Tribunal is so satisfied it must dismiss the appeal.

Section 4 of the 1999 Act places the burden of proof on the Secretary of State.

The standard of proof required by the Tribunal, in order to be satisfied as to the matters set out in section 4(3) of the 1999 Act, is that described in the decisions of the House of Lords in Re H and others (minors) (sexual abuse: standard of proof) [1996] 1 All ER 1 and Secretary of State v. Rehman [2002] 1 All ER 141. In the former case, Lord Nicholls of Birkenhead said, at pages 16-17:

"Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability….

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability….

Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."

In the latter case Lord Hoffman said:

"It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that he was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has…behaved in some…reprehensible manner. But the question is always whether the tribunal thinks it more probable than not".

The Tribunal was guided by these observations when considering the issues raised in this appeal.

Issues

48. It was contended on behalf of the applicant that:

she should be given the benefit of any doubt, particularly on the issue of suitability;

detailed examination of the evidence reveals that there are discrepancies and inconsistencies which should lead to the conclusion that the allegations made by A and B were false and/or grossly exaggerated;

the evidence of A and B was tainted by the fact that they have claimed compensation and/or are seeking someone to blame for their failure to make successful transitions into adulthood;

the burden was on the Secretary of State to prove unsuitability and he had adduced no evidence as to that;

the applicant’s history of work in the many years after she left South Meadow showed her to be entirely suitable to work with children;

the applicant smacked children, at first when the practice was not forbidden then on one isolated occasion 27 years ago and, finally, during a relatively short period of personal stress and depression 22 or 23 years ago.

49.It was contended on behalf of the Secretary of State that:

a listing scheme designed to protect the vulnerable should not be undermined by the importation of the criminal standard of proof and the applicant was not therefore entitled to "the benefit of the doubt";

the Tribunal should look at the whole pattern of behaviour, viewing the specific instances of misconduct as pieces of the whole picture;

the allegations made by the children are serious but, in the light of the admissions made by the applicant, not inherently improbable;

there are many consistencies in the accounts of witnesses, who had not collaborated, which demonstrate their credibility;

the suggestion that the children’s evidence was tainted did not bear close examination because much of what they said related to other children, not to themselves;

as to the applicant’s unsuitability, the Tribunal should have regard to the seriousness of the past misconduct and the type and number of instances involved; the time that has elapsed since the last proven instance; the applicant’s record of service both before and after the misconduct and the applicant’s current level of understanding of past misdeeds;

in the present case, the misconduct was at the serious end of the scale and so bridged the considerable gap in time;

the applicant’s record of service after the misconduct was good but that had to be viewed in the context of work in a hostel where there was little or no provocative behaviour;

the suggestion that there was a change in the applicant’s behaviour in the late 1970’s did not survive any analysis; and

there was no evidence at all to show a current level of understanding or appreciation of the past misconduct which could lead the Tribunal to be confident that the applicant is no longer unsuitable to work with children.

Conclusions and reasons

Having considered all of the evidence given and the arguments presented at the hearing and the witness statements and other papers submitted in advance, the Tribunal decided to dismiss the appeal.

The Tribunal’s reasons are as follows:

50. The Tribunal was satisfied that the applicant was guilty of misconduct which harmed children and/or placed children at risk of harm.

51. The applicant made various admissions, to the investigating police officers in 1992; to the Waterhouse Inquiry in 1997 and to the Tribunal in her written and oral evidence, that she had conducted herself improperly by hitting children as a punishment, in breach of a clear instruction from her employer that no member of staff should inflict corporal punishment on any child or young person in any circumstances and after a clear warning that any infringement of this policy would be viewed with the utmost gravity; by hitting children on the head or in the face when she was angry and/or frustrated; by manhandling a child to coerce her into following instructions and by grabbing children and yanking them towards her by their hair.

52. The Tribunal adopted the conclusions of the Waterhouse Inquiry that the applicant "abused children" during her time as Officer-in-Charge of South Meadow and that staff concerns about her behaviour towards the children at South Meadow were fully justified.

53.The Tribunal carefully considered the evidence of A and B in the light of the fact that they both made claims for compensation and came to the conclusion that the timing and content of their statements did not suggest self-interested invention.

54.There was force in the submission that the witnesses, having failed to achieve success in their lives, might be looking for a scapegoat. This may well have led A and B to exaggerate and to use emotive language. The Tribunal took these matters in account when assessing the evidence but was not persuaded that the accounts were invented, either out of mischief or vengeance, not least because there were many significant consistencies in the independently produced accounts of events. The Tribunal also noted that B gave a "clear and impressive" account when he gave oral evidence to the Waterhouse Inquiry.

55. As to the specific instances of misconduct harming a child, set out in writing on behalf of the Secretary of State pursuant to the direction given on 1^st October 2001:

The Tribunal was satisfied that the applicant, in the course of her employment as senior housemother at South Meadow, physically assaulted C, a 13 year old resident at that Home who was under her care. The applicant admitted that charge.

The Tribunal was satisfied that the applicant physically assaulted A, a girl resident at South Meadow and under her care from the age of 2 to 14 years. The Tribunal accepted the relevant evidence of A which was fully corroborated by the evidence of B and of 2 other children who were also resided at South Meadow during the relevant period and by admissions made by the applicant.

The Tribunal was satisfied that the applicant, from time to time between December 1968 and 1977, physically assaulted B who was resident at South Meadow from the age of 5 to 14 years. The Tribunal accepted the relevant evidence of B, who was found by the Waterhouse Inquiry to be "clear and impressive". His evidence was substantially corroborated by admissions made by the applicant.

The Tribunal was not satisfied that the applicant "whacked" the older brother of B on the back of his head with a shoe because he had not done his homework. The applicant strenuously denied this allegation. The only evidence in relation to the alleged incident was that set out by B in his witness statement (page D75 of the Tribunal bundle). It was not clear whether, when he made his statement, B was alleging that he actually saw the assault or whether he was alleging that he had merely been told of it by his brother. The applicant admitted, in her oral evidence to the Tribunal, that she had threatened to hit children with her sandal on several occasions and the Tribunal was satisfied, by the evidence of A and B, that, on other occasions, the applicant did hit children with her footwear. However, the Tribunal did not consider that, on the available evidence, it could be satisfied that this particular event, mentioned by B almost in passing, did occur.

The Tribunal was not satisfied that the applicant deliberately pushed B’s face into bedclothes wet with his own urine, as a punishment. The allegation is referred to in the Report of the Waterhouse Inquiry (at paragraph 17.29) and was put to the applicant during the course of her cross-examination by Mr King QC (page 9692 of the transcript). The applicant disputed the allegation. The Tribunal took the view that B may well have been required by the applicant to remove his own wet bedclothes and to carry them to the laundry facilities but felt that the allegation of pushing his face into the bedclothes might have been an exaggeration and/or a misinterpretation of the applicant’s actions by B. The Tribunal accepted the applicant’s evidence that bedwetting by B was "not a disciplinary matter".

56.The findings of fact made by the Tribunal amounted to serious misconduct by the applicant over the period from 1968 to 1981 which harmed children or placed children at risk of harm.

57.The Tribunal was also satisfied that the applicant is unsuitable to work with children.

58.The Tribunal adopted the conclusion of the Waterhouse Inquiry (paragraph 17.35) that the applicant "had serious temperamental or character defects which disabled her from carrying out her work as Officer-in-Charge in an appropriate manner". That conclusion was supported by the evidence of A and B and by the reports of the staff who worked with and under the applicant at South Meadow and was further supported by admissions made by the applicant.

59.The Tribunal noted and, having reconsidered the evidence, adopted the further conclusion of the Waterhouse Inquiry (paragraph 17.40) that the applicant’s conduct was "erratic and oppressive" and the she was "an unsuitable Officer-in-Charge".

60.The Tribunal accepted that it does not follow that the applicant remains unsuitable to work with children in 2002, simply because she was unsuitable to work with children in 1979 or 1981. However, defects of character and temperament are not easily changed and do not usually change unless they are specifically addressed. There was no evidence that the applicant has taken any steps to confront or to modify her character or temperament.

61.There was evidence that the applicant is unrepentant and retains the same attitude towards the physical chastisement of children as she held in the 1970’s. The Tribunal formed the view, having heard the applicant give oral evidence, that she chose to discipline children as though she had the right to do so whereas, in fact, she had been specifically forbidden, in her capacity as a care worker, from acting in that manner. Accordingly, the Tribunal concluded that, if the applicant again had the care of young children, she might well arrogate to herself the so-called parental right of reasonable chastisement. The applicant apparently did not and does not recognise or accept the clear distinction between the position of a parent administering punishment to his or her own child in a domestic setting and that of a professional care worker constrained by the law and the policies of his or her employers.

62.The Secretary of State having established that the applicant was clearly unsuitable to work with children in 1979, an evidential burden was placed upon the applicant to rebut the inference that that unsuitability has persisted until the present time. The applicant endeavoured to discharge that burden by adducing evidence from Mr Campbell and the Reverend Courts. The Tribunal accepted the evidence of Mr Campbell that he had never seen the applicant hit or threaten to hit a child and that, during the whole of the 21 years that he has known her, she has "maintained her Godliness" in all of her work. However, it does not follow that the applicant is no longer a risk to children. Mr Campbell’s own experience of the applicant was limited. The question as to whether the applicant would now react in a different way if she were again faced with behaviour by troubled, difficult and/or vulnerable young children or whether she would resort to physical violence as she frequently did before, was not one which Mr Campbell could answer. He only encountered the applicant when she was in charge of a hostel where the residents did not, for the most part, exhibit challenging behaviour. He was resident at the same time as A (whose behaviour was sometimes extremely challenging) but she was by then 16 or 17 years old and beyond the age when the applicant might have been tempted to confront her physically. The fact that A left Belgrave House in a state of great distress having apparently attempted to take her own life obviously had to be set against the observations of Mr Campbell.

63.The Reverend Courts has known the applicant since 1994. He recorded that, so far as he was aware, the applicant is held in high regard by all who know her. The applicant is obviously not held in high regard by A or B (who have expressed extremely hostile opinions) or by Mrs Worthington and the other members of staff who worked at South Meadow.

64.The applicant was entitled to and did rely upon her unblemished record during her 19 years of work with children after she left South Meadow until she was "redeployed" by Staffordshire County Council in June 2000. The Tribunal placed this in the balance but felt unable to give great weight to it in the absence of positive statements from the applicant’s employers or colleagues as to her suitability to work with children. The burden was not upon the applicant to establish her suitability. The legal burden remained upon the Secretary of State to establish unsuitability. However, having been found, in terms, to have been unsuitable to work with children in the past, the applicant did have some obligation to adduce some positive evidence of change or difference, from professional colleagues or supervisors. The Tribunal was troubled by her failure to do so.

65.When allegations of misconduct were put to her, both in the proceedings of the Waterhouse Inquiry and in the present proceedings, the applicant frequently responded by saying that she could not recall the incident rather than by admitting or denying it. The Tribunal detected a reluctance on the part of the applicant to confront her own past failings.

66.The Tribunal noted that, in the course of the work which she undertook during the period from 1981 to 2000, the applicant was rarely faced with the same sort of challenges that she faced when working at South Meadow. At Belgrave House the applicant had the benefit of an unusually high level of support and assistance and, as a Family Support Worker with Staffordshire County Council, her role was to advise and to provide practical assistance to parents caring for their own children. In these circumstances it was not surprising that the applicant was not seen to display the same reactions as before.

67.The Tribunal also placed in the balance the clear evidence that the applicant was prone to frightening losses of temper and alarming mood swings when in charge of South Meadow. B’s evidence that the applicant was "a Jekyll and Hyde character" and was "just mad"; the staff reports that the applicant was "paranoid" and A’s evidence as to the applicant’s volatile and fluctuating emotions (which was fully corroborated by the evidence of B and of other children who had relevant experiences) was of particular significance. Leaving aside B’s use of colourful language, the Tribunal was satisfied that the applicant often frightened children when she lost he temper or "flipped" and was further satisfied that such loss of control could re-occur if the applicant were permitted to continue to work with children.

68.The decision of the Tribunal was unanimous.

Order
Appeal dismissed.

Dated: 24^th May 2002

Signed

John Reddish
Chairman

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