England and Wales Care Standards Tribunal

 


Hollyhead v Secretary of State for Education and Skills [2004] EWCST 0309(PC) (27 September 2004)

Simon Thomas Hollyhead -v-

Secretary of State for Education and Skills

[2004] 0309.PC

DECISION

Mr. William Evans

Chairman

Mrs. Carol Caporn

Mr. Michael Flynn

Hearing date 27 September 2004

Application

The applicant appeals under s.4(1)(a) of the Protection of Children Act 1999 against a decision under s.1 of that Act to include him in the list of individuals who are considered unsuitable to work with children.

Preliminary

1. The applicant had asked for the Tribunal to decide his application without holding a hearing. No direction had been given under Regulation 6(3A).
2. The applicant had made no application for a Restricted Reporting Order. Under Regulation 18 of the 2002 Regulations we may make a Restricted Reporting Order "if it appears appropriate to do so." Given that publication of our decision might permit the identification of a young person mentioned in the evidence, we made an order under Regulation 18(1) of the 2002 Regulations prohibiting indefinitely 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 any individual who was a child referred to in these proceedings.

Relevant law

3. Under s.1 of the 1999 Act the Secretary of State must "keep a list of individuals who are considered unsuitable to work with children" (the list). By s.4(1) an individual who is included in the list may appeal to this Tribunal against the decision to include him in the list.
4. By s.4(3) if "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 … and direct his removal from the list; otherwise it shall dismiss the appeal. …"

Evidence and burden of proof

5. The wording of s.4 puts the burden of proof on the respondent. Following the decision of our colleagues in D v Secretary of State [2002] 118.PC, we consider that the standard of proof is the balance of probability.

Facts

6. The applicant is now 35 years of age.
7. Some time in October 2001 the applicant became employed by Dove Adolescent Services Limited (DAS) as an apparently unqualified residential social worker. He underwent induction and training, including courses relevant to residential social work with adolescents. One course was on DAS's policies and procedures. One of those policies, which we infer was a term of the applicant's contract of employment, reads: "Staff will not consume alcohol or illegal substances whilst on duty, or commence a shift after consuming any amount of alcohol which would affect their judgement in relation to the care and control of the young people."
8. The applicant worked at a DAS establishment in Wakefield. From the papers we infer that it was a small establishment looking after a small number of adolescent girls in the care of local authorities.
9. By September 2002 the applicant had a number of personal problems. He later said they were to do with the break-up of his relationship with his partner, difficulties over contact with his children, and the ill health of his father. DAS offered him support from a manager and another senior member of DAS staff, but the applicant said he was coping.
10. On 21 September 2002 the applicant had been drinking alcohol before or while on duty, or both. He engaged in conversation with one of the girl residents, whom DAS staff believed to have undergone sexual abuse by her father, who was in prison. The girl had said she was not well, but the applicant appeared to disregard that. The applicant pressed her to talk about her past, and in particular her sexual experiences, and pressed her to make disclosures. She became upset. The applicant did not respond to queries from a colleague whether his action was appropriate. The colleague telephoned a manager. The applicant took over the telephone, and spoke incoherently. The manager visited, and found the applicant incoherent and under the influence of alcohol. The manager suspended him pending investigation with a view to possible disciplinary proceedings.
11. On 23 September 2002 the manager interviewed the resident, who appeared not to have been disturbed by the incident.
12. On 10 October 2002 DAS held a disciplinary hearing. The applicant admitted gross misconduct by consuming alcohol on duty. DAS dismissed him. DAS later informed the Department of Health, as required in connection with the list.
13. On 23 December 2002 the Secretary of State decided provisionally to place the applicant's name on the list. The Department of Health informed DAS; it also informed the applicant, and invited him to submit within 28 days written representations as to why he should not be confirmed on the list.
14. We infer that the applicant did not reply, because on 19 February 2003 the Department of Health wrote again to the applicant, re-inviting him to make representations. At the same time the Department wrote to DAS asking for more details.
15. On 6 March 2003 the applicant replied, saying that his relationship with his partner had broken down, that he had had difficulties seeing his children, and that his father had been very ill with heart trouble; that a child in his care had had emotional problems, and that he had broken down. He said he had sought medical advice, and that his problem was now resolved.
16. On 31 March 2003 the Department sought more information from DAS.
17. DAS replied that it was aware that the applicant had personal problems, but felt that the severity of the drinking incident and the pressure he had placed on the young person was extreme.
18. On 23 February 2004 the Secretary of State decided to confirm the inclusion of the applicant's name on the list, and informed the applicant.
19. In his appeal to this Tribunal, the applicant attributed his breaking down to his having himself experienced sexual abuse as a child more than 20 years previously. He considered that the young person's strong attachment to him, her disclosures about sexual abuse, and his being asked to adopt the child brought his trauma to a head. He regretted the incident, and acknowledged he should not have behaved as he did. He insisted that the young person was not at any time in any danger or aware of the situation. Since leaving the employment he had had counselling. He contends that being put on the list is not appropriate, and implies that other people have behaved worse than he had yet are not on the list.

Reasoning

20. Because this appeal is determined without a hearing, we have based our findings of fact and our decision solely on the information and representations in the appeal papers.
21. Taking into account all the evidence, we find as fact that the applicant was guilty of misconduct. He broke a fundamental term of his contract of employment. His behaviour was professionally inappropriate. He admitted that, and accepted his dismissal.
22. We note, and take into account, that the applicant's employer appeared satisfied a few days after the event that the young person appeared not to have suffered any harm but, on the evidence, we are satisfied that the applicant's misconduct harmed a child, because she showed signs of distress during the event, and because the eliciting from a child, otherwise than by a skilled professional in full control of the situation, of disclosures about sexual abuse is inherently likely to carry with it the risk of harm to the child.
23. On the evidence, we are satisfied that the applicant is unsuitable to work with children. As a residential social worker he did acts which are not professionally appropriate. Though he acknowledged that what he did was wrong, we are not satisfied that he has now put himself in a position where he may safely be entrusted to work with children. We do not know what medical treatment or counselling he underwent, or how far that may have been successful. We do not know what other work, if any, the applicant has undertaken to prepare himself for working again with children. His representations suggest a lack of awareness of the potential impact of his behaviour on a vulnerable young adult.
24. As we are satisfied on those 3 issues, we dismiss the appeal. Our decision is unanimous.

Order

1. The application is dismissed.

2. We prohibit 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 any child at any time concerned in any proceedings involving the applicant.

Dated 3 October 2004

Signed

William Evans, Chair

Carol Caporn

Michael Flynn