England and Wales Care Standards Tribunal

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Cite as: [2002] EWCST 8(PC)

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Black v Secretary of State for Health [2002] EWCST 8(PC) (20 June 2002)

Dewi Robert Mark Black v Secretary of State for Health
2002. 8. PC
27th, 28th, 29th & 30th May 2002

Stewart Hunter (Chair)
Gillian MacGregor
Peter George

DECISION

APPLICATION

1. On 20th October 2001 Dewi Robert Mark Black (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 him on the list kept under that Act.

2. Mr Jason Coppell of Counsel represented the Secretary of State and Mr Howard Stangroom represented the Applicant.

PRELIMINARY

3. 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 vulnerable adult (referred to in this decision as "A") with whom the Applicant worked or "B" with whom the Applicant had also worked.

4. The Tribunal rejected an application made on behalf of the Applicant that there should be a similar order in relation to the Applicant himself. Details of this case have been placed in the public arena as a result of the Applicant’s application to the Employment Tribunal on 4th July 2000 and the Employment Tribunal’s subsequent decision dated 3rd April 2001. 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.

5. The nominated chairman having determined, prior to the hearing that "A" met the definition of a vulnerable adult under the Regulations, the Tribunal heard representations as to whether "A" should give evidence and if so, in what manner. The Tribunal determined that in all the circumstances, including the medical evidence submitted, it would prejudice "A’s" welfare to give oral evidence to the Tribunal unless appropriate arrangements were made to safeguard "A’s" welfare. Accordingly "A" gave his evidence via a video link assisted by Ms Janet Solomans.

FACTS

The material facts found by the Tribunal were as follows:-

6. The Applicant was born on 29th March 1955 and is now 47 years old. He started work with the London Borough of Lambeth in April 1979 as a house parent, in October 1981 he moved to one of their children’s homes, St Saviours as a team leader. On 29th September 1983 he was seconded for 2 years to study for his CQSW. On 11th December 1986 he was appointed as a social worker at St Thomas’s Hospital in the Drug Dependency Unit, then later transferring as a social worker to the HIV team, then as a development worker to the drug/HIV team and by May 1998 had become an assessment officer for a team working with people with disabilities based at St Thomas’s, the Applicant continued throughout to be employed by the London Borough of Lambeth.

Whilst working at St Saviour’s, the Applicant had been the key worker for "A" and "B".

7. In January 1998 Lambeth were notified by Dr Susan Wilcock, a clinical psychologist with the Clywydiann Community Care Trust that "A" had disclosed to her that he had been sexually abused by Mr Black while residing at St Saviour’s Children’s Home. An investigation was carried out by the police and the Applicant was interviewed by them on 3rd June 1998. On 11th August 1998 PC Amanda Lee of the Lambeth Child Protection Team wrote to the Applicant stating "Advice has now been sought from the Crown Prosecution Service and I have been notified that no further action will be taken in respect of these matters."

Lambeth suspended the Applicant in May 1998 and carried out their own investigations terminating in a report dated 1st March 1999. As part of their investigation, Lambeth’s officers interviewed and spoke to a number of people including Dr Wilcock, Heather Gaunt (now Lee) a social worker with Clywydian Community Care Trust, Jenny Weinstein "A’s" former social worker, Mrs Rosemary Gower, "A’s" adoptive mother, various former workers at St Saviours as well as "A", "B" and the Applicant. Lambeth’s investigating team concluded that "In this situation where there is evidence, albeit conflicting in parts, that abuse may have occurred, it is the view of the investigation team that these matters are best dealt with in the formal setting of a Disciplinary Panel."

On 10th January 2000, Lambeth held a Disciplinary Panel. On 6th April 2000 the Chair of the Panel wrote to the Applicant informing him that 3 charges of gross misconduct which had been made against him were found to be proven. In essence it was alleged that the Applicant had abused "A" on a number of occasions between January and August 1982, secondly that he abused his authority during visits to "A" after "A" had been placed at Mr and Mrs Gower’s to ensure that "A" did not disclose the abuse and thirdly that his relationship with "A" was inappropriate and breached boundaries and was inconsistent with the conduct expected of a council officer.

8. On the 4th July 2000 the Applicant presented an application to the Employment Tribunal complaining that he had been unfairly dismissed. The matter was heard in November 2000 and in January 2001. The Tribunal’s written decision was sent to the parties on 4th April 2001. The Tribunal found Lambeth’s decision to summarily discuss the Applicant had been fair and dismissed his application.

9. The Respondents provisionally placed the Applicant’s name on the Protection of Children Act List on 9th January 2000 and confirmed the Applicant’s name on the list on 30th July 2001.

10. "A" was born on 29th July 1973 and was taken into care by Lambeth in November 1973. Amongst the papers submitted to the Tribunal was a document headed "A’s Life" and is believed to have been written by "A’s" social worker Jenny Weinstein in November 1983 in conjunction with "A". "A" has a brother born in October 1974. "A" stayed with a number of different foster parents. In October 1976 "A" went to Gresham Children’s Home to be with his brother with a view to finding foster parents. The two boys were subsequently placed with a Mr and Mrs Price, this ultimately proved unsatisfactory. In September 1981 "A’s" brother was placed with a family called the Walkers leaving "A" at the Price’s on his own. In January 1982 "A" moved into St Saviours where he remained until August 1982 when he was placed with his future adoptive parents, Mr and Mrs Gower.

11. Mrs Gower did not give evidence to the Tribunal, nor was a witness statement from her submitted by either party. However, the Tribunal did have a document prepared by Mrs Gower for the police dated 27th May 1988 and a document from Mr John Betts, a strategic reviewing officer with Lambeth giving details of a telephone conversation between himself and Mrs Gower which had taken place on 12th October 1998 and which had formed part of Lambeth’s investigation. In these documents Mrs Gower expresses her concern about the Applicant’s visit to see "A" after "A’s" placement. In particular that that Applicant had said he loved "A" and found it hard to say goodbye. When asked by Mrs Gower what "A" and the Applicant had spoken about when they went out on walks together, "A" is alleged to have said that the Applicant suggested that it might be better if "A" did not mention the private showers they had taken together. Mrs Gower went on in the documents submitted to the police to say:-

"Naturally I questioned him further as to whether Robert had interfered with him at all. I was quite explicit in my questioning of "A" so there could be no misunderstanding as to what I meant. At that time "A" had denied that anything untoward had happened."

Mrs Gower states that she telephoned "A’s" social worker Jenny Weinstein to raise her concern. The Tribunal did not hear evidence from Ms Weinstein although the Respondent submitted a witness statement from her dated 10th February 2002. At paragraph 22 of that statement, Ms Weinstein states that she does not recall this telephone call. However, she does at paragraph 20 recall a conversation with "A" whilst he was at the Gower’s when "A" had said to her, "Dewi looked at me in the shower and I did not like it."

12. Mrs Gower goes on to say in the police document "A few years passed and the subject came up again.". Mrs Gower told Mr Betts this had happened "in Cambridgeshire in the kitchen when she was telling him off about something he had done." "A" told Mrs Gower "that Robert persuaded him to touch Robert’s genitals". Mrs Gower told Mr Betts that she had wondered whether this was "an attempt to get the us off his back?"

13. In 1997, Mrs Gower said that she had gone on a visit to "A" and his girlfriend. "A told me quite out of the blue, that Robert had sexually assaulted him although he did not say exactly what had been done to him". Mrs Gower told "A" that if what he was saying was true he should talk to his social worker to see what could be done.

14. "A’s" social worker in 1987 was Heather Lee who was employed by Wrexham County Borough Council, social services department. "A" had come to the attention of social services as a result of attempts by "A" to find his brother. Ms Lee told the Tribunal that "A" had said to her that "things had happened to him as a child and were always in his head". Ms Lee acknowledged that she had no experience of child sexual abuse and had referred the matter to clinical psychologist Dr Susan Wilcock.

The Tribunal were told by Dr Wilcock that "A" had been referred by social services because of some minor offending. Dr Wilcock was working with "A" around anger management, there were a lot of unresolved issues. "A" had during a session with Dr Wilcock disclosed that he had been sexually abused.

"Robert touched my private parts" and also "Robert Black was on duty one morning getting up and in the showers, Robert washed my penis and put my hand on his penis for a long time." Dr Wilcock had then contacted Lambeth.

15. On 14th October 1998, "A" was interviewed by Lambeth’s investigating officers, John Betts and Rubina Scantlebury in the presence of Heather Lee. "A" said that Mr Black had touched him in the showers. Amongst the questions "A" was asked by John Betts was "Did he have an erection?". "A" replied "Yes. Well I did not enjoy it." Later on in the interview, John Betts asks "Now that you are a sexually active adult, do you think he had an orgasm?". "A" replies "Yes", later "A" states "He got my hands to touch him", John Betts asks "How many times?", "A" replies "Every single time in the shower." John Betts enquires "How many times? 5/6, 10 or 20?" "A" answers "Loads", then John Betts asks "As many as 10-20?" "A" replies "Yes".

16. In his witness statement dated 12th February 2002, "A" sets out the details of the alleged abuse. At paragraph 4 he states as follows:-

"He first abused me in the showers at St Saviours. I think the showers were on the middle floor of the home. I would come out of my bedroom and walk along to the end of the corridor and there was a big bathroom with a bath, toilet, sink and showers. I think there were two showers as we used to take it in turns. I would have a shower and when I was finished, another child would have a shower."

"A" in his oral evidence to the Tribunal confirmed that the abuse had taken place in the showers in the morning, sometimes before breakfast, sometimes after. "A" was taken to the shower by the Applicant. "A" said that he shared a bedroom with two other children.

17. Dr Wilcock confirmed that "A had committed a number of offences including possession of an offensive weapon, assault and being drunk and disorderly. However, "A" had not put forward being abused as mitigation in respect of any of these offences. Dr Wilcock believed "A" to be telling the truth about the abuse, but said that it had not been her job to investigate the abuse. The matter was referred onto the police and social services. It was necessary for "A’s" therapy for Dr Wilcock to accept what he was saying. Dr Wilcock thought that in terms of being able to recall an event that had happened some time before there was likely to be a clearer recollection if the event was traumatic.

18. Heather Lee also stated that she considered "A" was being truthful about the abuse. He had always been truthful about his offences. Ms Lee had begun seeing "A" about 10 years ago and now as a service provider about twice a week. "A" was living in a house in the community with another person.

19. In the document Mrs Gower prepared for the police in May 1998 she described "A" as follows:-

"A is of limited intelligence and has behavioural problems. He is an inveterate liar and can construct the most elaborate tales without there being a shred of truth in them. How much of his allegation against Robert Black is truth and how much is fantasy is open to question. He could now make any leading questions I asked him about Robert’s behaviour in the past into fact. A is epileptic; he had daily petit mal seizures as a child which would case memory loss, so he is an unreliable witness."

In a telephone conversation with John Betts on 8th October 1998 Mrs Gower reiterated that she thought "A" was an unreliable witness. Mrs Betts asked Mrs Gower whether "A" could be lying on all the three occasions that he had made disclosures to which Mrs Gower is recorded as having said "Oh, yes".

20. The Applicant had whilst working at St Saviours been the key worker for "B". After "B" had been placed with a family, he was visited by the Applicant. "B’s" social worker was Anita Plommer (now Bennett) who had written a report following "B’s" placement. In that report she states that she and "B" talked about the Applicant’s visits:-

"B feels very uncomfortable with Robert’s physical affection towards him and he pronounces in no uncertain terms that he is "a poof." Anita Bennett went onto express concern that "B" felt Mr Black had a homosexual interest in him but felt this might be "B’s" perception of the situation and decided not to pursue the matter. The Lambeth Investigation Team record in their report that they had received evidence from "B" as part of their investigation into alleged abuse, "B" is recorded as having said "Well nothing ever happened to me." The Lambeth report goes on to state:-

"He went onto to confirm that whilst Mr Black was loving to him and told him he loved him, he ‘never felt in danger of being abused by him’". "B" said that he regretted losing contact with Mr Black."

21. The Tribunal heard evidence from a number of people who had worked at St Saviours at the material time. The officer in charge of the home from 1980 until April 1985 was Mr David Revill. He described St Saviours as having been a highly professional unit with excellent staff. It had tended to take on problem children, some of whom had had multiple placements. The assistant officer in charge was Sue Bradley whose witness statement was dated 28th February 2002 and who also gave oral evidence. In her witness statement she stated that the unit was unusual for its high number of qualified staff which had meant that there had been a high level of professional debate about the children and the unit’s work. All staff received supervision which was unheard of in other units at the time.

22. The unit at St Saviours was on two floors, attached to Sue Bradley’s witness statement was a sketch plan prepared by her showing the layout of the two floors and the position of the various rooms. This positioned a shower room on the ground floor towards the end of the corridor leading from the dining room. The three staff sleeping in rooms, together with the children’s bedrooms, were positioned on the first floor together with three bathrooms. The witnesses who were shown the sketch plan during the hearing agreed that it was largely correct.

23. Sue Bradley was interviewed as part of Lambeth’s investigation and was alleged to have said that there was a functioning shower. However, Ms Bradley disputed that she had said this and had refused to sign the transcript of her interview. In her witness statement submitted to this Tribunal, Ms Bradley states "The showers were not in my experience used at all, either day or night." She went on to say that she believed the door was locked and the key kept in the general office. On one occasion she had seen the shower room door open when it was being cleaned. Mr Revill told the Tribunal that the shower room was locked and not used for children, former St Saviour’s worker, Jean Wright, said the shower room was not used, whilst another worker Cindy Moody referred to the children having baths, not showers.

24. The Tribunal heard evidence from several witnesses who had worked in St Saviours about the shift patterns and in particular the arrangements for night cover and the hand over to morning staff. Sue Bradley in her witness statement described the rota patterns as follows:-

"Shifts started at 7am, which is when the night shift went off duty. The shift lasted until 3:30pm with a hand over period lasting from 3:00am - 3:30pm. The evening shifts would start at 3pm and finish at 11pm. I think the staff came on at 10pm."

"Ms Bradley also helpfully set out in her witness statement the staffing structure which she described as including an officer in charge, an assistant and three teams including team leaders of whom the Applicant was one, waking night staff, domestic staff and cooks.

25. Mr Revill said that there were two waking night staff, Cindy Moody and Jean Wright. If there were no waking staff on duty then there would be two other people on duty sleeping at St Saviours. There were three sleeping in rooms at the home including one which had at one time formed part of the officer in charge’s flat. Mr Revill said that he had received no reports of the Applicant taking children to the shower room and in his view it was not possible for the Applicant to have taken someone to the shower room without having been observed. Cindy Moody, one of the waking night staff said that she started work at 11am shortly before and left at 7am. She worked in conjunction with the other waking night staff member, Jean Wright. On Mondays, Tuesdays and Wednesdays they worked together and then one or either of them worked by themselves on Thursdays, Fridays, Saturdays and Sundays. Ms Moody said that if only one of them were on duty then there had to be two other sleeping in staff. This view was endorsed by Jean Wright.The recollection of residential social worker Chris Jordan was that when the number of waking night staff went down to one, an additional person slept in. Another residential child care officer, Amita Patel said that it had been Lambeth guidelines that there should be 3 staff at night time. She could envisage a situation where there might only be two in an emergency, for example if someone had not turned up for work as a result of ill health.

Stella Knight - Walters had been a student at St Saviours in the early 1980s and then left and returned at a later date as a basic grade residential worker. Whilst as a student she had attended St Saviours two days a week. She told the Tribunal that there was always meant to be two night staff and that that did happen 90% of the time. However, sometimes when she arrived at the home before 7am there was only one member of the night staff. Ms Walters told Lambeth’s investigators that there had been a local agreement "say for example a female member of staff who should have been on nights may be able to go home leaving a male member of staff on duty in the building by himself". When questioned about this at the Tribunal, Ms Knight-Walters said that she could not remember which members of staff the agreement was between but she knew it existed.

Sue Bradley in talking about the shifts told the Tribunal that when she was sleeping in she would often stay up and talk to the night staff. In the morning she would be woken at about 6:45 - 6:50 by a member of the night waking staff who would then give a verbal hand over after which they could then leave the building.

26. In terms of the children’s routine Sue Bradley said that bath time took place in the evening and was part of the bed time routine. Mr Revill said that he considered that a bath was a better environment than a shower and in his previous place of work he had had the showers closed down. Ms Jordan confirmed that bath time was part of the settling down routine in the evening, the exception would be if a child was to wet the bed in the middle of the night when they would then be bathed. Amita Patel stated that bathroom doors were always left ajar when children were bathing.

27. Cindy Moody explained her duties as one of the waking night staff as being to establish at hand over if children were settled, in bed and to check them at intervals, at this time the older children would still be playing about. The waking night staff would be awake all night and would either be situated in the open dining room or on the upper landing. Between 6:30am and 6:45am, tea would be taken to the sleeping in staff. Ms Moody said that she then had to make sure that there was enough day staff in the building before she left her shift and that she would never leave one member of staff alone in the building. Ms Moody said that for anyone to get to the shower room during the night or early morning they would have been seen either by herself or Jean Wright. If Ms Moody had seen anything unprofessional then she would have reported it. Her loyalty was with the children. The other waking night staff member Jean Wright said that she began her shift at the top of the stairs and stayed in that area until the younger children had settled and then went downstairs. In her view for anyone to use the shower room would have necessitated them walking passed her or Ms Moody whether they were upstairs or downstairs. The internal walls were not all solid they had glass and so that they would have seen someone going to the shower room even if herself or Ms Moody had been in the TV room.

28. Mr Revill said that there had been a removeable shower fitment for attaching to a bath which had been bought to enable a particular person to wash their hair. Chris Jordan recalled that there been an attachment for the use of an older girl which could be attached to the bath but which would have been kept somewhere else. Amita Patel had no recollection of there being any shower attachments.

29. The Applicant did not give oral evidence to the Tribunal but submitted a written witness statement dated the 1st December 2001. Amongst the Tribunal’s papers were notes of an interview between members of Lambeth Investigatory Team and the Applicant which took place on the 22nd October 1998. The Applicant denied in that that he had sexually abused ‘A’ or indeed any other child.

30. The Applicant had been supervised from about October 1982 until the summer of 1983 by Sue Bradley. She described the Applicant as seeming to be a dedicated member of staff who worked hard and was very intense. Ms Bradley said she had no reason to doubt his professional conduct. In discussions between herself and the Applicant there had been times when they talked about the Applicant’s sexuality and not being a father. Ms Bradley said that she was shocked when she heard the allegations about the Applicant. In her view abuse was possible in any residential home.

The Applicant had been Chris Jordan’s team leader and she told the Tribunal that she had no concerns about the Applicant’s conduct with any children nor as far as she was aware with anyone else. Cindy Moody described the Applicant as being a conscientious worker with good professional standards. Mr Revel who remained in close contact with the Applicant after they had left St Saviour’s said that the applicant was coming out’ at the time he started at St Saviour’s and this was a stressful time for him and made him a target for some children who would call him names.

Tribunal’s Conclusions and Reasons

We carefully 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’s reasons are as follows:-

31. The issue to be considered by the Tribunal in this case is whether on the balance of probabilities the Applicant is guilty of conduct which harmed ‘A’, the onus of proof being on the Respondent in this case.

32. ‘A’ has made disclosures of abuse on a number of occasions and we have considered all of these carefully but we have number of reservations about the way in which ‘A’s evidence has been disclosed. The early disclosures were to ‘A’s adoptive mother Mrs Gower from whom the Tribunal did not have the benefit of hearing giving evidence nor was a witness statement submitted to this Tribunal. This has presented us with some difficulty in establishing the precise circumstances in which the disclosures were made.

We have received no evidence to suggest that ‘A’ made any complaints about the Applicant when ‘A’ was at St Saviour’s. The first time the issue arises appears to be shortly after ‘A’ went to live with the Gowers. Mrs Gower expressed concerns about the Applicant’s visits but we do not have a clear picture of the background to ‘A’s placement with the Gowers and how that may or may not have influenced their views of the Applicant.

When being questioned about the Applicant’s visits Mrs Gower stated that ‘A’ had said that the Applicant had suggested it might be better ‘A’ didn’t mentioned the private showers they took together. Whilst ‘A’ in his witness statement said that he told Mrs Gower that the Applicant had touched his private parts Mrs Gower states in her recollections to the police in May 1998 that the questioning as to whether the Applicant had interfered with ‘A’ came from her. The questioning was "quite explicit" and he had denied that anything ontoward had happened. Mrs Gower states that her concerns were such that she contacted ‘A’ social worker Jenny Weinstein, whereas Ms Weinstein did not recall this telephone call. Ms Weinstein did however remember "A" mentioning to her that the Applicant had looked at him in the shower and he didn’t like it, but no suggestion at this point that the Applicant had touched ‘A’ inappropriately.

33. The timing of the next disclosure by ‘A’is not clear but it would appear from Mrs Gower’s recollection to be a few years after the first disclosure and to have taken place in Cambridgeshire and would appear to have been when ‘A’ was a teenager. Again we do not know the context of this conversation save that Mrs Gower said that it happened after she had told ‘A’ off about something he had done. At this point ’A’ states that the Applicant persuaded him to touch the Applicant’s genitals. The relationship between ‘A’ and Mrs Gower is at this time unclear Mrs Gower tells Mr Betts that she wondered whether allegations made by ‘A’ this time was an attempt to get the Gowers off his back. Moreover according to Mrs Gower on the same occasions ‘A’ denied that the Applicant had touched him.

34. Again we have similar problems pertaining to the circumstances of ‘A’ disclosure to Mrs Gower in 1997. This occurred during a visit by Mrs Gower to ‘A’ and his girlfriend. Dr Wilcock states in her interview with Lambeth that "A" was convicted in 1997 of assaulting his girlfriend when he had been drinking. We do not know for example whether there was any connection between Mrs Gower’s visit in 1997 and this offence.

‘A’ was later referred via Heather Lee to Susan Wilcox because ‘A’ had said to Ms Lee that things had happened to him as a child and would always be in his head . Dr Wilcock was working with ‘A’ in connection his with anger management and "A" had been placed in an anger management group. The precise circumstances of ‘A’s disclosure to Dr Wilcock are not entirely clear, but it appears that ‘A’ alleged that the Applicant was on duty one morning and whilst in the shower the Applicant washed ‘A’s penis and then put ‘A’s hand on the Applicant’s penis for a long time. Dr Wilcock said it was not her job to investigate the allegation but to refer it on to other bodies.

35. It was at the interview between ‘A’ and John Betts which took place on the 14th October 1998 in which ‘A’ referred as always having to take a shower with the Applicant. We have grave concerns the way in which the interview was conducted particularly the fact that so many leading questions were put to ‘A’ by Mr Betts for example at one point discussing the fact that ‘A’ had been told the Applicant was gay. Mr Betts asked "Would this mean he does things with children?" Later in the same interview Mr Betts asked ‘A’ did he had an erection and whether he had an orgasm. Discussing how many times ‘A’ said the Applicant had touched him Mr Betts suggests to ‘A’ that it was many as 10 - 20 times.

36. In his evidence to the Tribunal ‘A’ confirms in his witness statement that the abuse took place when he was having a shower in the morning whether before or after breakfast. At the hearing he reiterated that the Applicant’s alleged abuse had taken place on 10 - 20 times.

The concerns that we have about ‘A’s disclosures are that we do not feel that we have a full picture of all the circumstances relating to ‘A’s disclosure to Mrs Gower. In addition we are concerned at the number of leading questions that have been put to ‘A’ at various times. In the first disclosure Mrs Gower asked ‘A’ whether the Applicant had interfered with him, also in the interview with John Betts the number of times ‘A’ is alleged to have been abused is suggested to him. In the context of ‘A’s learning disability and ‘A’s general vulnerability this was unfortunate, and we consider raises doubts about the reliability of "A’s" evidence.

37. The Tribunal had the benefit of hearing ‘A’s oral testimony as well as hearing evidence about ‘A’s background. The document headed "A’s Life" apparently prepared by "A" and Jenny Weinstein in 1993 indicates that ‘A’ had a troubled background prior to going to St Saviour’s including a period in other children’s homes and a difficult placement with Mr & Mrs Price. ‘A’ was also separated from his brother from an early age. ‘A’ has learning disability and he is epileptic. Since leaving St Saviour’s ‘A’ has been convicted of a number of offences although it should be said that none of them were for direct acts of dishonesty,

Both Heather Lee and Dr Susan Wilcock stated that they believed ‘A’ to be telling the truth. However Heather Lee conceded that she has no experience of working with children who had disclosed sexual abuse and Dr Wilcox said that in order for ‘A’ to be provided with therapy it was necessary to accept what ‘A’ was saying. Moreover the assertions of both Heather Lee and Dr Wilcox as regards ‘A’s truthfulness need to be considered in the light of the evidence of Mrs Gower. We take into account that we did not have the benefit of seeing Mrs Gower but we did have sight of a document that she had prepared for the police in 1998, and also notes of her conversation with John Betts in which Mrs Gower said ‘A’ could be lying. During her statement to the police Mrs Gower refers to ‘A’ as "An inveterate liar" She states that ‘A’ could make "any leading questions I asked about Robert’s behaviour into fact". There is a clear conflict between these witnesses as to whether or not "A" is likely to be telling the truth.

38. Although there were some discrepancies in the account given by ‘A’ of the alleged abuse, one point that ‘A’ consistently makes is that the abuse took place in the shower. ‘A’ told the Tribunal such abuse took place in the morning before breakfast between 10 - 20 times over approximately a 9 month period. We take into account that the alleged abuse took place over 20 years ago and it is not fatal to our assessment of ‘A’s truthfulness that every account that he has give should be exactly the same. Nevertheless we have also taken into account Dr Wilcock’s evidence that a person’s ability to recall an event is likely to be clearer if the event was traumatic. Accordingly we have looked at possibility of the applicant abusing ‘A’ in the shower at the times suggested by ‘A’. The position of the shower was generally to agreed to be at the end of a corridor on the ground floor of St Saviour’s. There was some dispute about whether or not the room was locked, but the overwhelming evidence was that it was not in regular use and it was not used by the children. In the main children were bathed in the evening as part of their settling down routine. Therefore it would have been unusual if the Applicant had taken ‘A’ to the shower room

In the course of the Tribunal hearing we heard evidence about a shower attachment for use in a bath Mr Revill recalled there being an attachment for a particular person to wash their hair, Chris Jordan said that an attachment was kept in a separate place away from the bath .Amita Patel had no recollection of such an attachment. We find that if there was such an attachment it was unlikely to have been in regular use and further it conflicts with "A,s" own evidence about going into a shower room.

39. The Tribunal heard a lot of evidence about the shift patterns at St Saviour’s and in particular the number of staff who would be on duty in the morning before breakfast. Having considered all of this evidence we accept that it would normally have been 3 members of staff on duty, either 2 night waking staff and 1 sleeping in staff or 1 waking night staff and 2 sleeping in staff. Albeit there may have been very rare occasions when someone might have taken ill leaving only 2 members of staff in attendance but we consider that this would have been an unusual occurrence. We note Stella Knight-Walters evidence that there was a local agreement whereby only one person was left on duty. At the time of these allegations Mrs Knight-Walters was a student attending only 2 days per week. She was unable to tell the Tribunal who the agreements were made between. None of the other witnesses from whom we heard evidence had any knowledge of such an agreement. We therefore conclude that it would have been extremely unlikely that the Applicant was ever left alone at St Saviour’s in the mornings before or after breakfast.

How plausible would it have been for the Applicant to take ‘A’ to the shower room without being observed and without comment being passed? Several witnesses indicated that abuse in any children’s home is possible and we concur with their views. However, in this case we accept the evidence particularly from Cindy Moody and Jean Wright that for the Applicant to take ‘A’ to the shower room at the times suggested, particularly on as many as 10 -20 occasions as ‘A’ asserts it would have been extremely unlikely that this could have happened without Ms Moody, Ms Wright or another member of staff observing this taken place.

We were particular impressed with the evidence of the Officer in Charge at the home at this time David Revill and of Sue Bradley the Assistant Officer in Charge as to the professionalism of the staff employed at the home. It was the general view of the other former members of staff that gave evidence that had they had any concerns about the Applicant’s behaviour or about ‘A’ being abused they would have been reported to the appropriate authorities.

40. In view of the circumstances surrounding "A"’s disclosures and the conflicting views about his truthfulness we conclude that his evidence is unreliable .In addition we find on the evidence that it would have been very unusual for the applicant to be in St Saviours on his own around breakfast time and further that if he had taken "A" to the shower room he would have been seen by another member of staff who would have regarded this as unusual and reported the same. There is no evidence that this happened. We are therefore not satisfied on a balance of probabilities that Mr Black was guilty of misconduct which harmed a child or placed a child at risk of harm as alleged by the Respondent accordingly we are not satisfied that Mr Black is unsuitable to work with children or vulnerable adults

Therefore and for the reasons set out above we allow the appeal and direct the removal of the name of Mr Dewi Robert Mark Black from the Protection of Children Act List.

The decision of the Tribunal was unanimous.

STEWART HUNTER (CHAIR)

Dated this 20^th day of June 2002