England and Wales Care Standards Tribunal

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Cite as: [2002] EWCST 115(PC)

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W v Secretary of State for Health [2002] EWCST 115(PC) (24 May 2003)

Application no: [2002] 115.PC
Application by: Mrs W
Respondent: Secretary of State for Health
Determination date: May 2003
BEFORE
Ms Liz Goldthorpe (Chair)
Mr Jeff Cohen
Mr Peter Sarll

HEARING DATES
May 12^th and 13^th 2003

Application

Mrs W (the applicant) appeals 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.

The parties

Mr Jason Coppel of Counsel represented the Secretary of State and his witnesses were G and R, both employees of the ‘H’ Nursery for all or part of the period relevant to the allegations of misconduct.

Mrs W represented herself, with the assistance of her husband. She did not call any witnesses. Mrs W told us she had interpreted the Tribunal’s guidance to applicants in such a way as to believe she either could not have a lawyer or, if she did, she could not appear herself. We noted she had had previous legal advice in connection with related potential criminal charges.

We explained to Mrs W our obligations under s.6 of the Human Rights Act to comply with Article 6(1) of the European Convention on Human Rights, i.e. that, in the determination of her "civil rights", she is entitled to a fair hearing by an independent and impartial tribunal established by law.

Mrs W declined the opportunity we provided, at a number of stages in the hearing, of seeking either legal advice or legal representation or both, by way of an adjournment application. She expressed a clear preference to have the process ‘over and done with’. We judged her fully able to participate in the proceedings and to understand the consequences of so doing. We allowed Mr W to ask questions of witnesses on her behalf. The Tribunal, through its questioning of witnesses, were intent to ensure that both parties arguments were put forward in evidence.

A. Preliminary Issues

1. Restricted Reporting Order

1.1 On 31^st January 2003, the President of the Tribunal made a restricted reporting order under Regulation 18. This prohibited 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 child or children involved in this case until the conclusion of the hearing.

1.2 At the hearing the Tribunal renewed that order. [and directed that the Applicant be not identified either, since the publication of her name would be likely in itself to lead to the identification of the child or children concerned].

2. Video Evidence

2.1 Our bundle of documentation contained a transcript of the video of a child protection interview with a child named S, dated 25^th November 2002 submitted by the Secretary of State.

2.2 We viewed this video in the presence of the parties immediately prior to the hearing. Thereafter, Mr Coppel informed us that this transcript did not fully reflect the interview. He supplied Mrs W and the Tribunal with copies of an amended transcript. We took a decision to watch the video for a second time with the knowledge of the parties, but in their absence. Mrs W said she did not need to see it again. She declined the offer of a copy of the 1992 Memorandum of Good Practice on Video Recorded Interviews for Child Witnesses for Criminal Proceedings, the guidance applicable at the time of the interview.

3. Written Evidence

3.1 Mrs W had written a letter dated February 14^th 2003 to the Secretary of State in response to the directions given by the President on 31^st January 2003. This had not been included in our bundle of papers and, by agreement, Mr Coppel supplied a copy in the course of the hearing.

4. Procedure

4.1 We decided that the Secretary of State’s evidence should be called first. All the evidence was available to both parties, but, as there had been no previous hearing of any kind in relation to the allegations, this represented the first opportunity for Mrs W to hear the case against her in a full and coherent way. We regarded this as particularly important in relation to an unrepresented party. Mr Coppel had no objection to this course of action. We also excluded witnesses G and R from the hearing: they were called separately to give evidence on oath.

4.2 We do not consider that the lack of an opportunity to test the evidence of one witness, L, by cross examination deprived Mrs W of a fair hearing. The absence of L was not fatal to any of the grounds on which the Secretary of State relied, since her evidence relates solely to incidents which were the subject of written and oral evidence from G and R.

4.3 We are mindful of the importance of seriously disputed central issues being tried on oral evidence, given on oath and capable of being tested by cross examination (see Brandon J in "The Ferdinand Retzlaff" [1972] Lloyd’s Law Reports 120. This reflects the importance of assessing and weighing the evidence on the basis of how and when the evidence has been obtained, whether it represents the best evidence available to the tribunal and if not, why it is that it is the only evidence available.

B. The legal powers of the Tribunal

1. The Tribunal’s procedure is governed by the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. The purpose of the listing scheme is to protect children from those who are employed to work with them and to maintain public confidence in the care provided to children. Listing under the scheme involves a difficult balancing exercise between the safety of children and the rights of individuals to have their livelihoods and reputations safeguarded (see Lady Justice Hale in R v The Secretary of State for Health ex parte C [2000] EWCA 49).

2. The Tribunal’s powers are as set out in s 4(3) Protection of Children Act 1999.

2.1 This states:
If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely -
(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm; and
(b) that the individual is unsuitable to work with children,
the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.

3. Standard and burden of proof

3.1 It is common ground that s 4 of the Act places the burden of proof on the Secretary of State. We approach an analysis of the evidence, therefore, bearing in mind that it is the Respondent who must discharge this burden.

3.2 As we carefully explained to Mrs W, there are only two standards of proof; the criminal standard and the civil standard. The Tribunal applies the civil standard, namely the balance of probability.

3.3 There are two leading judgments of the House of Lords, Re H [1996] AC 563 at 587 and Secretary of State for the Home Department v Rehman [2001] UKHL 47 at para 55 which are relevant to the standard of proof. They support the proposition that it is right for the tribunal to consider the inherent likelihood of the occurrence of a particular event, and it is that likelihood against which the totality of evidence is to be measured.

3.4 The Tribunal is composed of people who, because of their training and professional experience, are very familiar with the likelihood or otherwise of incidents occurring that form the basis of the claim of misconduct and of the reliability of the accounts given of that misconduct. We are therefore entitled to

• draw inferences from the facts presented to us, but we must not speculate;
• analyse the facts presented to us in the light of our particular expertise.
• form a view about whether the Secretary of State's version of events is more likely than not. In some cases, the seriousness of the allegation will make the version of events as described more improbable and therefore more evidence will be required to discharge the burden. In other cases, although a serious incident is alleged, the Tribunal's expertise may lead it to conclude that the event described is not so unlikely and therefore the balance of probability will be satisfied without much in the way of supporting evidence.

4. Misconduct "which harmed a child or place a child at risk of harm"

4.1 The requirement to assess risk is imposed on us by the 1999 Act. Section 12 of that Act, the interpretation section, defines harm as having the same meaning as in Section 31 of the Children Act 1989, that is ill treatment or the impairment of health or development. Mr Coppel submitted that this was a definition of harm in general terms, which had to be more than trivial, but did not amount to the test applicable to the making of a care order, namely that of ‘significant’ harm. He further submitted that the Act had quite deliberately not set the test at this level and, had it done so, the Secretary of State’s job of protecting children by the maintenance of a register would be much more difficult.

4.2 In any event, Mrs W had accepted in oral evidence that taping a child’s mouth would be dangerous, and, equally, dragging a child by the arms or force-feeding a child could cause risk of physical and/or psychological harm.

C. Facts

1. Mrs W became manager of the H Nursery in January 1998. This is a self funded Nursery registered for 26 children aged between 3 and 5 years and for 4 children aged 2 years, run by WH Ltd. as part of a community centre. The manager of the centre is Mr B, who is also the company secretary. Mrs W is NNEB qualified, holds certificates in First Aid, Health and Safety, an Assessors Award and an NVQ in Child Care. She has several years experience in childcare, having worked at the Q nursery from 1995 to 1997, previously at the P Nursery, and, prior to that, as a children’s representative for a holiday company.

2. In February 1998 R became deputy manager. In July of the same year, G, aged nearly 18, was employed as a trainee nursery nurse. On 3^rd July 2000 L, aged 16, started work at the nursery as a nursery assistant. Mrs W was responsible for supervising G and R in relation to their NVQ qualification training.

3. On or about 28^th June 2001 R, the deputy manager, left the nursery without giving any formal notice. G became the temporary deputy. Ms K was then appointed as a permanent deputy, but left after a very short period.

4. On or about 3^rd July Mrs W, who was pregnant, went on long-term sick leave. Two days later, contacted by Mr B regarding the allegation of taping S’s mouth, she gave an explanation which apparently satisfied him, and no further action was taken.

5. The following day Ms T, an officer responsible for registration and inspection, visited the nursery and found it was overbooked for children aged 2.

6. On 11^th July 2001 parent X contacted Ms T and made an allegation that, according to another parent, Y, Mrs W had been smacking children. Parent Y subsequently said her concerns had been about ‘disturbing behaviour’, not smacking. On 24^th July 2001 these reports were considered by a child protection strategy meeting. It was also reported that on March 29^th 2000, a complaint had been made by a parent, A, that Mrs W had shouted ‘at full force’ at a child in the presence of other staff and parents. Mrs W had been given a formal warning about this incident. It was said she had not appeared to acknowledge the concerns at the time.

7. Both parents and members of nursery staff were then interviewed by Ms T and Mr B. In the course of these interviews G, R, and L made the allegations that are the subject of this appeal. The report of the interview with G notes the following:

7.1 She described Mrs W as very snappy, and her mood swings had changed quite a lot. G was scared of her, describing her as shouting at children and staff, and displaying domineering behaviour. Mrs W had not been showing respect for staff and G did not think it was just because of her pregnancy. There had been ‘a few incidents’, but G had been too scared to say anything to Mrs W, who had become unapproachable.

7.2 On 21^st June 2001 a child, S, was sent out of storytime to Mrs W, who was in her office doing paperwork. He would not be quiet and after about five minutes Mrs W had "flipped" and put sellotape over S’s mouth. G said she was shocked, and had walked away, only to return after a couple of minutes to say "it’s very quiet in the office." Mrs W had then removed the sellotape.

7.3 G told R about this incident two days later, and reported her concerns to Mr B, the centre manager.

7.4 Mr B confirmed G had seen him on 27^th June and he had raised the incident with Mrs W: she had said it was only a joke and only for a second. He had not realised it was for a couple of minutes.

7.5 G also said she and other staff had witnessed Mrs W force-feeding children by pushing sandwiches into their mouth, and holding the mouth shut so that the child was forced to swallow. She had never seen her hit a child, but had seen her grab a child by the arm and drag it along with more force than was necessary. Another member of staff, L, had also seen Mrs W take a child, S, into the office, shut the door and shouted at him loudly enough to frighten L.

7.6 G expressed worries about the repercussions of relaying this information. She said Mrs W telephoned her on 6^th July and was told about the discovery by Ms T of the overbooking. Mrs W had then suggested they both go into the centre to change the dates of birth on enrolment forms to increase the ages of certain children.

8. The report of R’s interview notes:

8.1She had left because of Mrs W’s behaviour and verbal abuse, which had been going on for about 6 months and had started before Mrs W became pregnant.

8.2 he had never seen her ‘having a go’ at children or hitting them, although she was very bad tempered. If children misbehaved she would sometimes take them into her office. R had seen her grab children by the arm and pull them on to their feet. She had also seen her physically holding children’s noses and forcing food into their mouths more than once. She also mentioned that child S had been dragged into the office by Mrs W and shouted at by her, frightening L.

8.3 G had told her about the sellotape incident: R had advised her to speak to Mr B

8.4 She was aware there were occasions when there were more than 26 children in the nursery and Mrs W had changed the booking system so that she was the only person responsible for booking children into the nursery.

8.5 A volunteer, K, had mentioned to G some things she had seen, but was not happy with, such as Mrs W force-feeding a child, but as a friend of Mrs W’s she might find it difficult to talk to Social Services.

8.6 She did not think Mrs W’s behaviour was due to her pregnancy: she had seen her recently and described her ‘as happy as a pig in mud’.

9. The report of the interview with L, aged 16, noted:

9.1 She was extremely nervous about talking to them and really scared of Mrs W finding out.

9.2 She described Mrs W as having a tendency to grab children by the clothes or arm and being ‘a bit rough’. On one occasion she had ripped a child’s shirt off, making him cry. On two or three occasions she had also seen her force-feeding children who would not eat their sandwiches by holding their mouths shut, making them cry, ‘literally screaming’. This had happened to two boys and a girl

9.3 She confirmed she had been really frightened when a boy had been dragged into the office and screamed at.

10. A temporary member of staff, D, an experienced nanny who had been covering the nursery for a number of weeks, was also interviewed as the result of having been named by parent X in her interview as someone who had mentioned hearing concerns from other staff. She reported an inconsistent environment for staff, and one that seemed strict compared to others in her experience. Mrs W had reduced another temp to tears. She had never witnessed smacking or rough handling. The atmosphere was much better since Mrs W’s departure.

11. Parent Y reported in her interview that her daughter had told her when children are naughty they got told off and have to go to Mrs W’s office for a smack. Her daughter had also gone through a period of two weeks when she did not want to go to nursery and especially did not want to stay for dinner. Mr B said nothing about smacking had been mentioned to him by her previously.

12. G repeated her allegations about force-feeding of children and the taping of S’s mouth to Ms T, at her request, in a letter dated 27^th August.

13. In September 2001 police took statements from G, R and L in which they repeated the allegations of misconduct in more detail and gave further examples of the behaviour of Mrs W towards staff.

13.1 G stated:

• she had feared Mrs W, who had made her feel she could be sacked at any time and she had never felt Mr B was the overall boss. She had ill-treated staff.
• Mrs W had held the heads of children back so that they had no option but to swallow or they would choke during incidents she believed had happened the year before. A volunteer, K, had also witnessed this.
• she had heard S in Mrs W’s office with another child, J, on 21^st June making loud, funny noises. She had previously advised Mrs W to ignore him and he would stop. She had subsequently walked into the office and seen S lying on the floor, crying, looking ‘frozen’ and scared, appearing not to move for a few seconds, looking at her in fright. She noticed he had sellotape across his mouth, which G realised had been put there by Mrs W to keep him quiet She had walked out, but returned to see S still with the sellotape on and crying uncontrollably. Mrs W told S to take it off. When she spoke to Mr B a week later about this, he had said there was little he could do, but would keep an eye on Mrs W.

13.2 R stated:

• Mrs W had changed over a period of time, displaying mood swings and bouts of depression, with an uncontrollably bad temper.
• She had noted a change in Mrs W’s behaviour towards the children the previous year: she had often become quite forceful, pulling children by the arms and forcefully moving them round the nursery, shouting at them and force-feeding them causing them to choke and cry. She had not reported any of this as she needed her job and had feared Mrs W and her ability to sack her.
• She had finally left following an incident in which Mrs W has assaulted her, taking a job as a nursery nurse rather than as a deputy. She had not volunteered this to Mr B as she had to work out her notice.

13.3 L stated:

• She had become aware of Mrs W’s mood swings and G and R had often complained about her temper. By Christmas 2000 she had started to experience Mrs W’s ‘nasty temper’, seeing her shout at staff, often making them cry. She herself had been shouted at, often reducing her to tears.
• Mrs W would also shout at children sometimes for no reason, which she described as far too loud and ‘scary’, making them cry uncontrollably and shake in fear and seek reassurance from L, G or R. She had seen her lose her temper with one child, pulling his shirt off hard enough to hurt him.
• Mrs W would constantly handle the children forcefully, moving them from one place to another, pulling them by the limbs or dragging them. This included her dragging S into the office, with his legs partly on the floor, and shouting at him so loudly and forcefully S had cried, holding his hands over his eyes, ears and head, sobbing uncontrollably. It had taken L some time to console him.
• There were two specific incidents of force-feeding she recalled in detail, one involving girl, whose eating behaviour had deteriorated thereafter, with her eating less and then being sick. The other was a boy: Mrs W had lost her temper and started forcefully to spoon yoghurt into his mouth: L could hear the spoon hitting the child’s teeth, he was choking and spluttering, crying and very distressed.
• She had not said anything as she been too scared of Mrs W and of the possible repercussions, but had discussed the matter with G.
• Mrs W’s behaviour had been the same before she got pregnant.

14. Thereafter, a further child protection strategy meeting was convened, attended by the Chairman of the WH Board of Directors, at which it was made clear he would be recommending Mrs W’s dismissal.

15. On 14^th October 2001 Mrs W was interviewed by police in connection with these allegations, which she says was the first time she knew about any of these allegations. She denied having received any formal warning from any nursery and categorically denied all the allegations. On the 19^th November 2001 child S left the nursery. On the 20^th November Mrs W, who was on maternity leave, was informed in writing on behalf of the trustees of WH Ltd about the police investigation. On the 22^nd November S’s parents attended the local police Child Protection Unit where they were informed of the specific allegation in respect of their son. Three days later S, then aged four, was video interviewed by police officer C.

16. On 7^th December 2001, Mrs W wrote to Mr B stating that "in view of recent events and correspondence" she wished to leave the nursery altogether with effect from January 5^th 2002. Mr B, who was then off sick, was interviewed by police on the 14^th December and stated Mrs W had been acting strangely in July 2001: he described her as ‘uptight’ and ‘unwell’, beginning to ‘lose’ it, and ‘generally moody’. He said he believed she thought she was hard done by, but that the pressure everyone worked under, on top of her pregnancy and her husband’s absence had contributed to her behaviour. He confirmed Mrs W explained the tape allegation by saying she had stuck a gold star on a child’s jumper with sellotape. However, he had never seen Mrs W do anything to children to hurt them, he had not seen a child unhappy nor any inappropriate behaviour on her part.

17. In January 2002 the CPS advised the police against a criminal prosecution on the basis that the available evidence would be unlikely to meet the requisite high standard of criminal proof. The Senior Crown Prosecutor expressed the view, however, that G, R and L were extremely good witnesses whose evidence would be sufficient to satisfy the civil standard of proof. On 23^rd April the police wrote to Mrs W, apologising for the delay. They confirmed the information already given verbally to her solicitor that no further action would be taken against her in relation to the criminal investigation.

18. In June 2002 the Chairman of the Board informed the Secretary of State that the WH Board had been satisfied that, in view of the seriousness of the allegations, Mrs W should be suspended. As she had resigned, he confirmed that the Board would have considered her dismissal. The Department of Health notified Mrs W of her provisional registration on 19^th July 2002. Mrs W’s reply stated she was shocked by this as she had been told no criminal charges were to be brought against her, and "several child care organisations" had told her that was the end of the matter.

19. In August Mrs W says she was approached by some neighbours, who were "fully aware" of the situation she was in, but asked her to manage a new nursery. She provisionally agreed to do so, but on 28^th October her registration was confirmed as permanent. On November 8^th Mrs W lodged an appeal against registration.

20. As a result of a specific direction made by the President of the Tribunal on 31^st January 2003, the Department were required to file formal statements on behalf of G and R. These repeated the allegations, with additional points as follows:

• R stated Mrs W’s behaviour had changed towards her and other staff in the 6 months preceding R’s resignation and she had regularly threatened staff about their jobs. Her behaviour had become more erratic in the months before Christmas 2000, during which time she had become tearful and blamed it on the pressure she was under from Mr B. Mrs W had ‘always been temperamental’ and after the cancellation of her wedding had told R she had been medically treated for bouts of depression. She had become even more abusive on a regular basis after she became pregnant, but had appeared happy and ‘full of beans’ during a visit R had made after her resignation.
• R had been outraged by G’s account of the sellotape and had no reason to believe she would lie or exaggerate. Both R and G said Mrs W’s version of events related to a totally unrelated incident involving a different child, M, and not to S.
• G said S had been showing signs of Attention Deficit Hyperactivity Disorder. On 21st June she had been standing at the door of the office and had advised Mrs W to ignore S’s shouting and making of sounds. He had carried on doing this for about ten minutes when Mrs W grabbed some sellotape, pushed him on the floor and put the tape over his mouth. Subsequently Mrs W had shown no remorse and had acted as if this was acceptable behaviour. G had been concerned that S might think this was normal behaviour and would copy it, thereby placing a baby or small child at risk of death.
• G could remember the force-feeding, but not specific dates or children. Mrs W had lost her temper to the extent of dragging children out of the room by their arms: they always stayed on their feet but it was done with such force they had no option but to go with her.
• Records showed there were some sessions in which there were as many as 29 children booked to attend and the booking was solely Mrs W’s responsibility. As far as she was aware Mrs W had never actually altered the records, despite her suggestion on 6^th July to G that this should be done
• G had been grateful to Mrs W for the opportunity she had given her to start training as a nursery nurse. She did not think Mrs W should be allowed to work with children.
• Both R and G had seen Mrs W’s letter of 14^th February 2003 stating she (W) had worked more than 50 hours a week. Both denied this had been the case. They also denied her accusation that they had been in ‘malicious cahoots’ with each other.

D. The Department’s case

Counsel reminded us the Act requires two cumulative conditions to be satisfied by the Secretary of State, which he contended were fully satisfied in this case.

1. The alleged misconduct

i) Mrs W had placed sellotape over the mouth of an allegedly disruptive child, S, whilst he was in her office

1.1 Reliance was placed first and foremost on the evidence of ‘G’ as an eyewitness. It was accepted there was a possible inconsistency between her statements about whether she had actually seen Mrs W put the tape on ‘S’s’ mouth. However, from the outset she had said she was there and had seen ‘S’ lying on the floor of the office with the tape across his mouth.

1.2 The further possible inconsistency, whether it was Mrs W or S himself who had actually removed the tape, was a relatively minor point of detail since the real question was who had put it on in the first place.

1.3 G had admitted her failure to take action sooner about the allegations of force-feeding. However, she had done so in respect of the sellotape incident by reporting it to Mr B, albeit a few days later. Mr Coppel submitted that G had suspected all along he would prove ineffective and this proved to be the case since he did nothing about it, save to accept a highly implausible explanation from Mrs W.

1.4 Secondly, the Department relied on the written evidence submitted to police by S’s parents prior to his video interview. In Mr Coppel’s submission this was significant evidence: it was common ground they had not been told of the allegations by ‘G’ or the Nursery or anyone else at the time. The first they had heard of it was from ‘S’ himself.

1.5 Mr Coppel accepted that criticisms could be made of the child protection video interview of S in that there had been a pre-camera conversation not recorded in any transcript. Nevertheless, he contended it carried evidential weight: it either corroborated the case for the Department of Health or lent support to it in the light of all the other evidence. He said it contained the following important points to support this view:

• The one point S had been clear about, and sure of throughout.was that Mrs W had put the tape on him, a fact he had repeated unprompted on a number of occasions to questions not directly related to that point
• Given the opportunity to embellish, he did not do so: it was clear it had happened on that occasion and that was all that had taken place.
• S’s single description of it feeling "all soppy and poppy", indicated in age appropriate language he had had it on as well as the feeling and/or the noise of it moving around on his mouth or being removed from his skin. Additionally, his single statement that his mouth wasn’t working in the sense that it wouldn’t go up, was also a plausible explanation of how it felt to have tape on his mouth.

1.7 Nevertheless, the case did not stand or fall on the video evidence and there was enough direct eyewitness evidence from ‘G’.

ii) The rough handling of children in her care

1.8 The Secretary of State relied on the direct eyewitness evidence of G and R. This, together with other written evidence also showed Mrs W was prone to losing her temper, manhandling children, shouting at them and dragging them out of rooms into her office.

1.9 Mr Coppel accepted L’s choice not to attend to give evidence meant her statements had less weight than that of R and G, but her account lent specific support to their evidence. .

1.10 Criticism of failing to blow the whistle on a manager needed to be treated with caution, especially so in the case of those who had made it clear they were dependent for their livelihood or future careers on that person. Moreover, the allegations related to her child care practice, an issue which went to the very crux of the operation of the Nursery. The concern of staff about raising such matters with Mrs W was perfectly understandable in such circumstances and, given what they had heard about him, also understandable in relation to Mr B. The consistent description of Mrs W as overbearing, shouting at them and making them feel they could not get another job, contributed to an atmosphere where they would be reluctant to criticise her.

iii) The force-feeding of children in her care

1.11 The evidence of the three eye witnesses, G, R and L, was relied upon in support of these allegations in much the same way as for the allegations of rough handling, with similar points made by Mr Coppel about credibility and the suggestion by Mrs W that they had all lied.

1.12 Mr Coppel also relied on other supporting oral and written evidence from various witnesses showing miscellaneous instances of Mrs W’s short temper and her tendency to shout at children and staff. This, he submitted, was only a short step to a loss of temper in other respects, leading to more aggressive and violent behaviour. The formal warning showed her shouting was an undisputed fact.

1.13 The balance of probability

1.13.1 Mr Coppel described it as absolutely fundamental to the allegations of force feeding and rough handling for the tribunal to decide which was the more credible on the balance of probabilities, since there was a direct conflict between the range of evidence provided by the witnesses for the Secretary of State and that supplied by Mrs W, who had categorically denied all the allegations. .

1.13.2 He submitted it was necessary for us firstly, to consider the witness’ demeanour and plausibility, and to ask ourselves what might be the reason for a witness to be untruthful. If we found in favour of Mrs W, we would have to decide in particular if G and R had consistently lied to their employers, the police, then the Secretary of State and subsequently the Tribunal. We would need to question what possible motive these witnesses might have for lying.

1.13.3 He pointed out that, as potential prosecution witnesses, G and R had been assessed by the Crown Prosecution Service and the police as honest and credible. G’s frankness that the criticism of failure to take action was justified simply added to her credibility: she had been honest enough to admit that she had not acted as she would have wished, had been distressed in giving evidence and was not engaged in an attempt to avoid blame at all costs. R had taken a similar stance. There was no plausible reason to lie in such detail and with such consistency: R was no longer at the Nursery at the time the allegations were made and G had made them before Mrs W had gone on sick leave or maternity leave

1.13.4 Rejecting them as not credible witnesses meant believing Mrs W’s assertions that they had concocted these allegations against her, for reasons which had varied and were simply beyond belief. We had to be satisfied these were really plausible reasons for R and G to put themselves through the demanding process of pursuing the matter right through to this appeal.

1.13.5 By contrast, Mrs W had a clear motive for lying and denying she had acted inappropriately or wrongly in the first place, to avoid a) a criminal prosecution and b) to succeed in this appeal. She was not a credible witness, as shown by giving answers she believed to be the most convenient at the time, without regard to whether they were truthful or not. He gave some examples of a number of inconsistencies between her evidence to us and that given to the police, for example:

• Stating to the police she had spent 99% of her time in her office, but telling us she was often outside the office supervising games, and children had wanted to be on her table, which she regarded as a sign of respect for her.
• Telling us she had had very little contact with Mr B despite her contrary statement to police, when she had tried to place a degree of blame on him by saying she had had a lot of contact with him, but had found him unsupportive.
• Telling us it was a special treat for a child to be sent to the office, but contradicting herself by saying children were sent if they were being disruptive.
• Giving completely inconsistent reasons to us for not returning to work at the nursery, saying she was having a wonderful time at home with her daughter, but was also suffering from post natal depression
• Telling us she had not felt stressed at work, and found the job of looking after young children fun, but telling police she had felt stressed at work in recent months.

2. Misconduct causing harm

2.1 Mr Coppel submitted that

• Putting sandwiches in the mouth of a child and forcibly closing their mouths in order to make them eat, was completely inappropriate and harmful behaviour in both physical and psychological terms.
• Taping a child’s mouth with sellotape was also completely inappropriate behaviour, dangerous to the child and likely to cause either or both physical or psychological harm.
• Handling children roughly by dragging them along by their arms was totally inappropriate behaviour and potentially dangerous to the child or children concerned.
• If misconduct was established by the Secretary of State, Mrs W’s acknowledgement such treatment would be dangerous and/or constitute a risk of harm to a child was material.

3. Mrs W’s unsuitability

3.1 Mr Coppel submitted that it would be open to the Tribunal to find that Mrs W had been guilty of misconduct, but would not be unsuitable to care for children in future. However, he strongly urged us not to take this course, asserting that the type of misconduct was serious enough in itself, and Mrs W had accepted that fact. If we found there had been misconduct, Mrs W must be found to be unsuitable, based on the following factors:

• Acceptance of wrongdoing as a fundamental, essential requisite of a change of behaviour sufficient to satisfy the test, which Mrs W had never shown.
• Total denial of the allegations and attempts to evade the implications of the formal warning consistent throughout.
• Her categorical denial of all allegations, and her implausible explanations.
• She had failed to suggest any alternative approach, namely ‘my behaviour was wrong, I have never done anything like this in the past or since nor would do so in future.
• She had been dishonest in response to the allegations and simply did not recognise, or face up to, her conduct.
• The alleged misconduct, which showed Mrs W to be someone prone to an inappropriate and dangerous pattern of behaviour in dealing with children and should not be put in a position where she could repeat this
• Her continuing denial of the allegations and her suggestion that children’s dates of birth and ages should be altered in nursery records to cover up the overbooking, demonstrated a pattern of dishonesty.

E. Mrs W’s evidence:

1. The alleged misconduct

1.1She denied all the allegations of mistreatment of children, and told us that this hearing was the first time she had had an opportunity to defend herself. She had not known the full details at any stage, but had been suddenly, and confusingly, sent different information at various stages.

1.2 She accepted in oral evidence that she had received a warning about shouting at a child, following a parental complaint. However, she insisted she had merely raised her voice, and the warning had not been in writing, which indicated it had not been serious. She conceded that she sometimes raised her voice, which was occasionally necessary with a large group of children in order to be heard, and that staff had obviously interpreted this as shouting.

1.3 She conceded in oral evidence that she had had mood swings, but these had not caused her to lose her temper. Her mood swings during her pregnancy had been due to staff not helping her, but she had been delighted to be pregnant. She did not accept she had a short temper, or had shouted at, or ill-treated, staff. There had been a level of socialisation between herself and staff that had included R staying overnight at her house. Mr B was approachable and if staff had been concerned about her behaviour they would have gone to him and would not have been at risk of losing their jobs either in relation to this or the main allegations. She denied assaulting R, suggesting to her in her cross examination that this was most unlikely as R would have hit her back, and further suggesting, in R’s absence, that R had had a fight with G’s boyfriend.

1.4 She described herself as caring, but something of a disciplinarian, and said this arose from her desire to set high standards: parents had been happy with this, as demonstrated by S’s parents noting that standards had fallen after her departure.

1.5 She accepted there had been a possible incident involving sellotape, but not in relation to child S. She had placed a star stuck to a piece of sellotape onto another child as a reward, momentarily putting it on his mouth as a joke, an action which had been misinterpreted. She could not remember which child this was.

1.6 There were inconsistencies in G’s statement about the incident and her police statement did not say she had witnessed Mrs W put the sellotape on S’s mouth, and she had contradicted herself about who had removed it. Her description of S’s behaviour during the incident was not consistent with a child who had ADHD: Mrs W said she was not fully conversant with the symptoms of this condition, but did not believe such a child would be able to sit or lie still for ten minutes unless physically restrained. She conceded that S could be a frustrating child at times, but that distraction would be the most appropriate method with a child who had ADHD. She also confirmed that, as indicated in the evidence provided by S’s parents to police, she had discussed the possibility that S had ADHD with them and had asked their permission to contact his health visitor. The problems in handling a child who caused disruption to others would have been discussed with her staff and an appropriate behaviour approach adopted.

1.7 She had not known about the video of S’s interview until two weeks ago and criticised it from a number of aspects, including the fact there had been a conversation between the officer and S that had not been transcribed and it was easy to prompt a child to say things. S had referred to a Christmas party, which threw doubt on the timing of the alleged incident, and there was a strong possibility he had been confused. This was compounded by the lack of clarity about the reference in S’s parents’ documents to the 21^st November.

1.8 Eating problems in a child would have been discussed with the relevant parent.

1.9 In support of her contention that witnesses were lying, she variously asserted that they were motivated by being upset because she had left without giving full notice, or were jealous of her, either because of her family life, or because she lived in a nicer area.

1.10 There was a demand for places and there had been times when there were too many children booked in, but the photocopied records in evidence were only a guide to the numbers expected, rather than those who had actually attended each session. She had notified Ms T about her dissatisfaction with the pressure this caused, but no longer had the evidence of this having destroyed it following the closure of the police investigation. G had overseen day to day attendance, numbers had varied and no queries had been raised in any previous inspection.

1.11 However, she had been led to believe that if the numbers of 3 to 5 year olds were low, more 2 year olds could be admitted, provided the staff ratio was correct.

1.12 She had made no suggestion that records should be falsified, stating that this would be pointless since it would have been obvious and it was possible to tell the difference in ages.

1.13 She told us inspectors had praised the nursery, but Mr B had provided no positive feedback, had rarely visited other than to collect money and had only been willing to employ trainees to assist in relieving any staff shortage. He had never set up any formal supervision meetings with her and she had been upset by his lack of support.

1.14 She had appraised staff annually and provided the opportunity for mini staff appraisals if staff wanted them. Induction training had been provided for staff, which had involved going through the staff handbook and the procedures it contained, which included a child protection policy. Ongoing training had been provided on a day to day basis and she had only ever assessed staff by watching them at work.

1.15 She had been contacted by friends and neighbours in August 2001 about a new management post. This was shortly after she had walked out of the Nursery and had made a decision not to return, which she had not conveyed to WH Ltd until the end of her maternity leave. She had finally turned the job down some time in 2002 when it became clear that the matter of her registration had been going on for a long time

1.16 She had finally formally resigned in December 2001, unaware that her employment with the Nursery was in jeopardy. The correspondence from WH Ltd had not indicated she had been sacked or could not return to work. She was unhappy, did not need to work (particularly in childcare), and Mr B would not indicate whether she could return in a part time capacity.

1.17 Given an opportunity to respond to Mr Coppel’s final submissions, Mrs W asserted:<

• Every day in child care was different, and her time had varied between spending days behind her desk most of the time but on other occasions, for example, spending 5 minutes playing a game with the children in the main Nursery. This explained the discrepancy in her statement about spending 99% of her time in the office.
• It was possible to have postnatal depression and love being at home with a child, since the condition was not a 24 hour one, but characterised by ups and downs, and differing levels of severity in different people.
• it was obvious more 2 year olds were brought into the nursery than should have been.

2. Harm or risk of harm to a child

2.1 Mrs W accepted in oral evidence that taping a child’s mouth would be dangerous, and, equally, dragging a child by the arms or force-feeding a child could cause risk of physical and/or psychological harm.

3. Suitability and future conduct

3.1 She had frequently discussed with her husband her desire not to work in childcare any longer whilst still at the Nursery. She had resigned feeling that the allegations would adversely affect both herself and the Nursery.

3.2 She told us she had been offered the new job at another nursery in August when she had been unaware of the allegations against her. It had been a good offer, she had been flattered and felt she had missed working in a nursery and the children. She had eventually not taken it as she did not want to keep her potential employers waiting for the outcome of her appeal, but she had kept them informed about it. She had provided advice on the setting up of the premises, which had opened in September 2002. She had finally turned the job down in either December 2002 or January 2003. She also told us she had wanted part time work and to embark on a different career, feeling she had outgrown childcare and was now too old for it.

3.3 She found her new career in customer services with a local supermarket fulfilling and hoped that no further action would now be taken against her. She did not accept her unsuitability for the simple reason she did not do any of the things that had been suggested.

4. In summary, Mrs W put her case as follows:

• She had consistently denied all the allegations made against her
• It was unfortunately very difficult to provide evidence in support of her innocence when the only people involved appear to have been her colleagues in the Nursery. However, equally it was very difficult to prove her guilt due to the lack of supporting proof and no other complaints from parents or children. Witnesses had not provided relevant dates or times or details of people or children involved, and their statements were both inconsistent and identical in material respects, suggesting they had concocted their stories together.
• The allegations had been made up by the witnesses for reasons which were not entirely clear, but as part of a personal vendetta against her. They all worked together and had concocted a tissue of lies.
• During the hearing she had listened to some very serious allegations against her, which, if they were as serious as had been made out, they should have been reported at the time. The failure to do so meant either they had not happened, or they were not as serious as witnesses were now making out. The failure to report the allegations undermined the credibility of the witnesses to the extent they should not be believed.
• She had pursued a career in childcare for the past 13 years to the best of her abilities and had enjoyed the last 12 years of it. At no other time had anything of this nature been brought against her. However, following two days of hearing evidence, she had no desire to put herself or her family through the stress of further allegations. The opportunity for the system to fail as it had failed her appeared to be all too easy. This had confirmed her belief she no longer wished to continue in the childcare profession as she felt she had been forced out.

F. Tribunal’s Conclusions and Reasons

We carefully considered all of the evidence given and the arguments presented at the hearing, including the various witness statements and other papers submitted in advance.

The Tribunal’s reasons are as follows:-

1. Misconduct

1.1. We have no doubt that Mrs W’s career in child care was a successful one in many ways, but we have no choice but to conclude that, at the very least and to some extent by her own admission, she was a strict disciplinarian in her running of the nursery.

1.2 We found the various oral and written accounts of Mrs W’s general behaviour towards, and high expectations of, staff to be consistent and believable. Mrs W’s own description of herself lent a degree of further credibility to this and we have no difficulty in believing that she was capable of getting angry when her demands were not met. For similar reasons we also find the descriptions of her general demeanour towards children plausible and the formal warning as clear evidence of a propensity to shout loudly and inappropriately at them.

1.3 We found G to be a particularly credible witness and we regarded her evidence as key. Her demeanour in giving evidence lent veracity to her assertion that she was afraid of Mrs W and that, despite her lack of contact with Mr B, she had found it easier to go to him. We have also taken into account her young age and inexperience at the time.

1.4 We also found R to be a credible witness. However, her allegation that she had been hit by W was a single incident with no corroborating evidence of any other physical abuse of staff. We are unable to say whether this assault took place or not and have not attached any weight to it therefore.

1.5 We have assessed ‘L’s’ evidence bearing in mind the fact that it has not been tested by cross examination: we accorded it less weight, but found that her account supported both these witnesses in material ways.

1.6 We found the assertions of these witnesses as to their fear of reporting the events they had witnessed or heard about to be entirely credible taking into account age, level of experience, and their belief as to the likely consequences of so doing to be credible in all the circumstances.

1.7 In contrast, we found Mrs W’s account of events and the reasons for believing the witnesses had conspired to fabricate their evidence, difficult to accept. We agree with Mr Coppel’s submissions that she had demonstrated an inclination to give answers that depended on the circumstances and chose those that would either place her in the best light, or would enable her to avoid the consequences of her actions. .

1.8 The way in which Mrs W chose to deal with the evidence of the formal warning about shouting at a child we found particularly damning. It demonstrated to us that, at the very least, she may not be aware of how she comes across to others. We are satisfied that it shows she is unable to accept criticism, or the consequences of her own actions and demonstrates both propensity and an inappropriate lack of self-awareness in a childcare manager.

1.9 We note the lack of clarity about whether there were satisfactory child protection procedures in place at the Nursery at the relevant time, or if there were, whether staff were aware of them in detail or at all. It would appear that staff have now received training in such procedures.

i) The taping of S’s mouth

1.10 We found G’s evidence about this incident credible, and her reporting of it at the time to be corroborated by credible evidence from R. We gained the strong impression that witnessing this event had been the last straw, which had eventually prompted a young and frightened employee into finally blowing the whistle on her employer’s childcare practices. The fact that this was initially unsuccessful and the full facts did not emerge until the full child protection investigation does not, in our view, reduce the veracity of G’s account or its ultimate consistent credibility. Indeed, we believe that the fact the allegation did not publicly emerge until then serves to increase the likelihood of it being true. The sequence of events supports this:

• The incident is said to have taken place on 21^st June
• G is said to have told R about it on 27^th June
• R resigned on 28^th June
• Mrs W went on sick leave on 3^rd July
• Mr B contacted her about it on 5^th July

1.11 However, we do not accept that her evidence is corroborated by the video interview. Investigation of allegations into child abuse is not a precise science and views can differ, for example, about the conduct of a particular video interview, particularly in relation to very young children. S presented as extremely active, appeared to change topic and give replies that could be said to demonstrate an inability to concentrate. Without more evidence about S’s alleged ADHD we are not in a position to judge whether this was as a result of age appropriate behaviour or not.

1.12 Nevertheless, this particular interview was flawed in the sense that it was not conducted in strict accordance with the Cleveland Guidelines of 1987 and the Memorandum of Good Practice. There had clearly been a discussion between ‘C’ and the child ‘S’ which had taken place outside the interview room, but there were no details of what was said or by whom. This reference was followed by three consecutive prompting questions from ‘C’. To the final question S said "Mel put tape on my mouth", gesturing to either side of his mouth as he did so. In these circumstances we attach no weight to S’s consistent repetition of this throughout the interview.

1.13 We were more convinced by the two single phrases S "soppy and poppy" and "It wasn’t working. It didn’t go up" used when asked to describe what the tape had felt like, although these are clearly not in any way conclusive proof that it had happened to him on the date alleged.

1.14 The written evidence from S’s parents was not entirely satisfactory in that it was unclear in what context the reference to the 21^st November had been made. Mr Coppel was unable to provide an explanation, save to suggest this referred to the date on which S’s parents had apparently recorded in writing what had occurred on an earlier unknown date. . This still did not resolve the problem of when S was said to have made the allegation about having sellotape on his mouth. The relevant document is not headed or dated and we have excluded it as unreliable.

1.15 In these circumstances we cannot accept Mr Coppel’s submission that, whilst things could have been said or suggested to S, nevertheless it was significant that S had apparently said this to adults he did not know who could not be responsible for putting things into his mouth. We simply do not, and cannot, know.

1.16 Therefore, in circumstances where we have found the G and R to be credible witnesses, the video and the document can only, at best, be said to provide some supporting, but indeterminate, evidence that S had had the experience of having his mouth taped up and that this might, or might not, have been done by Mrs W.

1.17 We do not find Mrs W’s evidence on this issue credible and are satisfied there was no confusion in G’s mind about which child was involved. We accept that Mrs W put sellotape on S’s mouth in the circumstances described by G. We also note that Mrs W suggested it was not possible for a child, particularly one with ADHD, to remain still for ten minutes: in fact, at no stage did G suggest that the incident had taken this long.

1.18 We are satisfied that, even if we discount the video as supporting evidence in its entirety, there is sufficient reliable evidence to conclude that this incident took place and that Mrs W was responsible for it.

ii) The rough handling of children in her care

1.19 The timing estimated by both G and R and L seems to indicate these events occurred towards the latter end of Mrs W’s employment, prior to Christmas 2000. There were consistent indications it had begun prior to her pregnancy and become worse during it. A number of incidents were described with sufficient consistency by them to indicate an ongoing and cumulative series of examples of inappropriate handling of several children. We find it significant that the references indicate a pattern of events, i.e. on several occasions over a period of time. G told us it had happened ‘most of the time’.

1.20 Both G and R were clear they had never seen Mrs W hit a child, but had witnessed her grabbing children by the arms and dragging and/or pulling them along forcefully. Both repeated the allegations in oral evidence and confirmed that unacceptable and unnecessary force was used.

1.21 We find that Mrs W handled at least some of the children in her care roughly in the last year of her employment.

iii) Force-feeding of children in her care

1.22 We find evidence given by G, R and L to contain sufficiently consistent and reliable descriptions of this type of misconduct. We do not regard the inability of these witnesses to agree on timing and frequency as fatal to the overall credibility of these events. We note that Mrs W accepted in oral evidence she had been present at mealtimes.

1.23 We accept that it appears there were a number of incidents that took place throughout the year 2000, but that this misconduct did not continue into the last six months of Mrs W’s tenure.

Harmed or risk of harm to a child

1.24 Having accepted Mrs W was guilty of the misconduct alleged, we also accept Mr Coppel’s assertions as to the harm or risk of harm in relation to each of the three grounds and we note her support for the proposition that such behaviour would be dangerous and/or present a risk of harm to a child.

1.25 Having been satisfied as to the credibility of the supporting evidence against her as to her general demeanour, we have also concluded that the atmosphere in the nursery was not a happy one for staff. It was, in short, not a totally safe and predictable environment for at least some children, if not all those who attended regularly.

Suitability to work with children

1.26 Having found Mrs W guilty of misconduct, we considered whether, nevertheless she might be considered suitable to work with children in future. We took into account her consistent denial of responsibility for any of the events or behaviour described either in particular or in general, and our assessment of her credibility and honesty in the way in which she had presented herself. We also took account of the fact that there were a number of inconsistencies and confusions in her evidence about her decision not to continue in childcare. We also noted that she had changed her mind about this when offered an opportunity to run another nursery, and acknowledged she had participated to some extent in its setting up. She was confused about dates and her knowledge of the allegations against her and did not give a satisfactory or clear explanation as to why she had waited nearly a year to finally tell her prospective employers that she would not be taking up their offer.

1.27 In all the circumstances, we find that the applicant remains a continuing risk and is unsuitable to work with children.

The decision of the Tribunal for the reasons set out above is:

(1) the appeal of Mrs W is dismissed

(2) the restricted reporting order under Regulation 18 is hereby continued

The decision of the Tribunal was unanimous.

Ms L. GOLDTHORPE (CHAIR)
Dated this 24th day of May 2003