England and Wales Care Standards Tribunal

 


H v The Secretary of State for Education and Skills

[2003] 182.PC

15^th and 16^th January 2004.

Mrs. M. Tudur (Chairman)

Mr Richard Beeden

Mr Raymond Winn

Application

H (the Appellant) appeals under Section 144 of the Education 2002 against the refusal of the Secretary of State (the Respondent) to vary or revoke a direction made on 4^th March 1998 that the Appellant, on grounds of his misconduct, be barred from teaching other than at a Further Education (FE) establishment.

At a preliminary hearing held on the 10^th October 2003, directions were made as to the timetabling of the case and it was also directed that the hearing should be subject to directions under Regulations 18 and 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, that there should be a Restricted Reporting Order and that the press and public should be excluded from the hearing. A witness summons was issued for Dr Hall-Smith to attend the final hearing.

At the hearing, the Appellant was not represented and the Respondent was represented by Mr Jonathan Auburn of Counsel and the Treasury Solicitor.

Legal Framework

The direction made on the 4^th March 1998 was made under Regulation 10(2) of the Education (Teachers) Regulations 1993. ("the 1993 Regulations")

From 2^nd October 2000, the direction had effect under Regulation 5 of the Education (Restriction of Employment) Regulations 2000.

Since 1^st June 2003, pursuant to Regulation 3(2)(b) of the Education (Prohibition from Teaching and Working with Children) Regulations 2003, the direction has had effect as though made under Section 142 Education Act 2002.

By virtue of Section 144(1)(b) of the Education Act 2002, a person in respect of whom a direction has been given under Section 142 may appeal to the Tribunal established under Section 9 of the Protection of Children Act 1999, against a decision not to vary or revoke a direction.

Facts

1. H was born on the 12^th December 1944 and qualified as a teacher in about 1969. Since that date he has taught in a variety of schools, but mainly in boarding schools within the independent sector both in England and abroad.
2. In 1976, H pleaded guilty and was convicted of indecent assault of a boy aged 11 or 12 years, for which offence he was fined £50. The boy was not in his care as a teacher. This is his only conviction to date. H's then employers were not made aware of his conviction and he continued to teach at different schools without disclosing his conviction, until 1995.
3. The Appellant has suffered from long term depression since his teens, with about four bouts of severe depression, over the years, when he received treatment from a Psychiatrist. These bouts seem to have become less frequent with age.
4. In 1995, H was successful in an application for a temporary two-term post as a science teacher in C, a boarding school for boys within the independent sector. No reference was made at interview or in his letter of appointment to disclosure of previous convictions. About two weeks after he started in post, he was requested by his employers to complete a Request for Criminal Backgrounds Check Form. To complete the form, he inserted his personal details and deleted one of two sentences, so that the form indicated that "I have no convictions or cautions". It was signed by the Appellant on the 31^st January 1995. The result of the check was that his 1976 conviction was disclosed to his employers, who, nevertheless, allowed him to continue in post to the end of the two-term contract. The Principal also provided him with a supportive testimonial at the end of his service there.
5. On 10^th July 1995, the Respondent wrote to H informing him of the intention to consider taking action under the 1993 Regulations. He was offered the opportunity to consent to the preparation of a report by a Forensic Psychiatrist, that would be considered in making the decision.
6. On 29^th November 1995, H was interviewed by Dr Williams, a Forensic Psychiatrist. Dr Williams did not have sight of H's GP notes for the purposes of preparing his report. In his report dated 30^th January 1996, Dr Williams noted that H disclosed that in the past he had masturbated to fantasies of young boys. He described no sexual fantasies about women or girls. In his opinion, Dr Williams concluded that H had suffered from a depressive personality disorder since his mid teenage years and that this had been compounded by episodes of depressive illness, the symptoms of which had mostly been kept at bay by the prescription of anti-depressant drugs. Dr. Williams described H as having an abnormally low level of sexual interest and sex drive, concluding, " he therefore could be considered as suffering with homosexual paedophilia. However, I note, if his account and the documents available to me are to be believed, he has only acted on this inappropriate sexual interest on one occasion when his behaviour was disinhibited by an episode of depressive illness." Dr. Williams identified the risk posed by H as falling into two categories, the first that when he is depressed he may have difficulties carrying out his teaching duties due to his low mood. The second that there is a risk of inappropriate behaviour. Dr Williams's recommendation was that "when H's mental state is well controlled, on balance, I would consider that he would post (sic) no unacceptable risk to children in his care. However, should the Secretary of State agree with my assessment they may wish to consider that H's future teaching is conditional on his receiving psychiatric over-sight from a Consultant Psychiatrist."
7. In January 1996, H went to work abroad, returning to the UK in July 1996. In October 1996, he got married to a female foreign national, whom he had met on holiday.
8. On the 24^th October 1996, H was jointly interviewed by Dr D Ernaelsteen, Medical Adviser and Mr Pope, a caseworker from the Teachers Misconduct Team in Darlington. In a note of the interview made the same day, Dr Ernaelsteen concurred with the Forensic Psychiatrist's conclusion that H is a homosexual paedophile and has low sex drive and a fixation with young boys in white underpants. Dr. Ernealsteen concluded that she did " …not consider [H] is equal to the challenge of managing a class, of coping with indiscipline or any difficult pupil. I agree the greater risk may lie within his depression rather than with the possibility of a sexual transgression. However, his continuing sexual fixation with boys in white underpants is disturbing and would cause considerable anxiety to a potential parent were this to be exposed." She dismissed the proposal of psychiatric oversight indicating that she could see "no possibility of applying the charitable suggestion.." and concluded that H should be barred for the foreseeable future.
9. By the time the Respondent had reached a conclusion on the action to be taken, H had obtained another temporary post teaching foreign students mainly aged over 18. The Respondent wrote to his employers on the 8^th December 1997, informing them of the decision to prohibit H from relevant employment. The employer responded expressing dismay at the intention to deprive H of his livelihood 21 years after the offence and commended his teaching over a period of 9 months prior to the date of the letter. The employer suggested that if a direction was necessary then it should prohibit teaching at schools and not further or higher education. It was as a result of those submissions that the Respondent issued the direction on the 4^th March 1998, in the following terms:

"In pursuance of Regulation 10(2) of the Education (Teachers) Regulations 1993 as amended, the Secretary of State for Education and Employment hereby directs that, on grounds of your misconduct, H shall not be appointed or employed in relevant employment as defined in the above Regulations by any authority or body after the date on which this Direction is given, other than in the following capacities:

a. by a local education authority as a teacher or as a worker with children or young persons at a further education institution;

b. by any other body as a teacher at a further education institution;

c. by the governing body of a further education institution."

10. On the 30^th August 1999, H made a request that the Respondent conducts a review of the decision. The application was refused on 30^th November 1999 and the letter of refusal indicated that the Secretary of State would not normally undertake a review before a period of 5 years has elapsed from the date of the direction.
11. On the 11^th June 2001, H again requested that a review be conducted into the decision to issue a Direction. The Respondent agreed to carry out the review. In a letter dated 28^th September 2001, H made his submissions in support of his request, denying the indecency of the 1976 assault, and suggesting that it was the result of "playful curiosity" rather than any intention to molest the boy. H produced testimonials from employers over the years that confirmed that he was a very able scientist and mathematician and was liked by the children. They referred to his assistance with swimming and athletics clubs.
12. Dr Williams interviewed H on 20^th November 2001, and prepared a second report. In his opinion, Dr Williams again referred to H's low sex drive and to H's reference to past sexual arousal "..to thoughts of pubescent boys which have been reinforced by masturbation." Dr Williams's opinion was therefore stated to be "..the same as … in my report of January 1996." He again identified two areas of risk and concluded "..on balance I would consider that he would pose no unacceptable risk to children in his care. However, should the Secretary of State agree with my assessment and allow him to teach they may wish to consider that his future teaching is conditional of him receiving psychiatric oversight from a Consultant Psychiatrist to monitor his depressive illness."
13. In a letter dated 18^th January 2002, Dr O'Donnell, Consultant Occupational Physician who had read the file advised that there remained a risk of relapse into depression and disinhibited behaviour and recommended that the current restriction should remain.
14. On 17^th September 2002, H attended an interview with Mrs Anne Hunter, caseworker with the Teachers Misconduct Team and Dr R.G Hall-Smith, Medical Adviser. In his report dated 20^th September 2002, Dr Hall-Smith detailed the contents of the interview and referred to H's admission that the incident in 1976 had been the result of "sexual curiosity". H made reference to his currently having no sex drive and to the fact that he is impotent. Dr Hall-Smith concluded that he was unable to change the medical recommendation made after the first interview. He concluded that H continued to pose a small but potential risk to children and in particular to young boys. He did not consider that ongoing supervision by a Psychiatrist would be a workable or enforceable restriction. Notes of the interview were compiled and approved by all present, including H. The Respondent notified H on the 31^st March 2003 that the decision was not to revoke or vary the direction made on the 4^th March 1998.
15. H appealed against the decision on the 1^st June 2003. In his grounds of appeal, he identified four grounds in support of his appeal:

a) The decision was based on a one-off event 27 years ago. He is unlikely to offend again.

b) Although he pleaded guilty to indecent assault, he did not molest the boy.

c) Dr Hall-Smith's judgement was based on a brief interview and without access to H's medical history. Dr Williams' conclusion was that H would pose "no unacceptable risk to children in his care."

d) The ban had deprived him of his livelihood.

16. The Tribunal had access to all the documents made available to the Respondent in considering his decision, other than the caseworker's recommendation and advice to the Minister.
17. At the hearing, Mrs T Davies gave evidence. She had refused to produce a character reference for H for the purposes of the review and had been served with a witness summons to attend the hearing. She had been unaware of the nature of the 1976 conviction until recently. She gave evidence that H was a good teacher and confirmed that she could only speak highly of his teaching and describe him as a good colleague. She did not know him socially, he being a resident teacher and she his line manager, living off the campus, but they had taught together in the Science Department for two terms. She described him as quiet, keeping himself to himself but that he did his work "to a superb standard". She was not aware of any complaints by any of the children whilst he taught at the school.
18. Mrs Anne Hunter, the caseworker responsible for the conduct of the review, gave evidence at the hearing. She confirmed the procedures undertaken by the department in reaching both the original decision and the review. She confirmed that the direction allowed teaching at FE level because of the recommendations made by H's then employers. She explained that in 1996, the Secretary of State made directions restricting where an individual could teach and it was only later that additional conditions such as medical supervision might be imposed. She confirmed that the Department viewed H's failure to disclose his conviction in 1995 to be a relatively small matter and that if failure to disclose had been the only issue, then it is likely that no action would have been taken. She also confirmed that there were no indications in Dr Williams's reports that there was a specific risk to girls, but that Dr Hall-Smith in his recommendation, made reference to "children" rather than "boys". She went on to explain that there is a difference in recommendations for people who have a relationship with pubescent rather than prepubescent boys. They may be allowed to teach older girls. She had read reports in other cases that 21% of paedophiles interested in prepubescent children offend with either sex so that in H's case, it could be argued that there would be a risk to children not just to boys. She confirmed that she had discussed with Dr Hall-Smith the possibility of arranging medical supervision for H and part of their assessment of the case had been whether the proposal was workable. They had reached the conclusion that it was not for a number of reasons, which included: the fact that they could not direct medical supervision for an individual; the financial aspect as to who would pay for the psychiatric input; it would also have to be set up because H was not currently under psychiatric supervision. For these reasons, the condition was not workable. Mrs Hunter gave evidence that her interpretation of Dr Williams last paragraphs in his reports was that if H was to return to teaching it should be conditional on his being under psychiatric supervision. Although the wording in the report stated "the Secretary of State might wish to consider", she read this as saying "it would be wise to..". Finally, Mrs Hunter clarified the Secretary of State's position that any identified risk is unacceptable, regardless of whether it is a low risk, and must be taken into account. She could not explain what Dr Williams considered to be "unacceptable" and had not taken any steps to ascertain what he meant. She confirmed the Department's view that the forensic psychiatric evidence from Dr Williams and medical advice from Drs Ernaelsteen and Hall-Smith were essentially the same.
19. Dr Hall-Smith, Consultant Medical Adviser also gave evidence at the hearing. He explained his difficulty in interpreting what Dr Williams had meant by "no unacceptable risk" because Dr Williams's "unacceptable" as a Forensic Psychiatrist might be different from his own "unacceptable", because a Forensic Psychiatrist deals with the whole spectrum of criminal behaviours, from murderers downwards. He did not know how Dr Williams assessed the risk to girls in H's care, accepting his use of "children" to include both sexes, despite having identified H as a " homosexual paedophile" and presenting no evidence of a risk to girls in his report. He had not made any further enquiries of Dr Williams about his meanings. Dr Hall-Smith expressed his concerns about H's lack of insight into the effect of his behaviour on the child involved in the 1976 incident and this together with the fact that H does not appear to accept the conviction, caused concern at the interview. Dr Hall-Smith identified his interpretation of "pubescent" as being between the ages of 11 and 13 years and pre-pubescent as being between 8 and 10. He had not noticed the discrepancy in Dr Williams' report between the ages quoted and the description. He explained the consideration that he had given to the imposition of a condition for Consultant Psychiatrist's supervision. He did not regard reviewing a patient to assess risk as a normal part of NHS Psychiatric provision and consequently there would be an issue as to the cost. He also questioned to whom the report would be provided whether to the Head of the school, DfES Medical Adviser or simply to his own General Practitioner. He queried who would police the direction if H failed to attend, and to whom an appeal would lie against suspension. He also considered what period of time should elapse between reviews given that an individual's mental state can vary. He also expressed concern that the nature of the supervision would rely on H self-reporting his symptoms and there would be a temptation to minimise his symptoms if he were likely to lose his job as a result of being honest and truthful. Dr Hall-Smith explained that Largactol, prescribed for H in 1976, was a major tranquilliser used effectively as a chemical straitjacket with the intention that it would prevent impulsive behaviour so that it was highly unlikely that it would cause H to behave in the way that he did in 1976. Dr Hall-Smith interpreted Dr Williams' recommendation of psychiatric supervision as sitting on the fence. He believed that if Dr Williams really believed that H would present no risk to children then he would not have included that condition. He acknowledged that H was a very good teacher, but he was cynical of his reasons for wishing to return to teaching young children. He referred to the fact that H chooses to teach at boarding schools, that he volunteers to help at swimming clubs where there are undressed children, the fact that he hadn't declared his conviction and his general attitude in interview had led Dr Hall-Smith to the conclusion that H had no insight into the seriousness of the situation. Dr Hall-Smith suggested that a person's sexual orientation was unlikely to change.
20. At the hearing, H gave evidence about his attempts to try and secure employment and to join an agency. Although he had secured some work, despite having declared his conviction, he had been refused by an agency because of the direction. He had retired on health grounds and is now in receipt of a small pension, but this is insufficient to support him and his wife. He stated however that he does not intend to seek employment teaching young children, preferring the idea of teaching A-level science and maths students. He continued to challenge the indecency element of the conviction, explaining that 11 year old children frequently play together in that way in the swimming pool, pulling down each others' trunks, without it being considered indecent. (The information presented about his own conviction was that he had pulled down the waistband of the boy's trunks at the side, enquiring of him why he had them on inside out.)
21. H referred to Dr Ernaelsteen's conclusion that the greater risk appeared to be from depression rather than sexual transgression, expressing his own shock at reading her disparaging comments about him following the interview in 1995. He described a bout of acute depressive illness after he completed his O-levels and a second after he had gone to university. Early in 1976, he was experiencing what he described as "night terrors" which led to his throwing a lamp across his bedroom. This incident frightened him because he was residing within a boarding school at the time so he consulted a doctor who prescribed Largactyl for him. He remained under the supervision of a Psychiatrist at F.P. Hospital until he went abroad to work in 1978. The last time that he had an acute depression was in 1993 when he was referred to a psychiatrist. He did not suffer particularly badly when his mother died in 2000, because he felt that it was inevitable and his depression has been better since his mother's death. His medication has been reduced. He explained his seeking work at boarding schools in the past, as being because they offered accommodation, which meant they were more lucrative, and a sense of belonging, which he considered had been missing from his childhood.
22. H acknowledged that he was a paedophile in his mind, but that this did not manifest itself in a sexual way. He regarded it as a fixation upon himself as a child and wanting to go back to being a child. He alleged that his description of the 1976 offence as having an element of "sexual curiosity" was in response to a leading question from Dr Hall-Smith and that he would not have used those words. He said that he had been depressed the night before the offence was committed and that he had gone swimming because he wanted to do something different. He said that he did not feel depressed at the time of the incident; that he was acting on impulse; that he had possibly given way to depression; that it may have been a response to Largactyl. He felt a need for some kind of release and that's how it expressed itself. He considered that the conviction for indecent assault reduced the risk he presented to young boys because he could avoid situations where something might happen. He said that the offence had taught him not to play around with strange boys. He also considered that he presented less of a risk now because he is less interested in sex because of his age and wouldn't get aroused. He drew the comparison between himself as a teacher with his sexual orientation, teaching young boys and heterosexual male gynaecologists, who are able to carry out their examinations of women patients without becoming attracted to them. He made reference to several historical figures who are alleged to have had paedophilic tendencies and who did great things, regardless of what went on in their minds. He did not regard himself as a risk to young boys and in any event gave evidence that he was seeking to revoke the direction so that he could teach A-levels in schools or FE colleges. He believed that employers were put off by the current condition, and were not prepared to read the small print. He was prepared to consider psychiatric supervision, if the DfES would accept the same as a condition. At the same time, he acknowledged that there was a temptation not to mention fantasies of young boys if it meant a risk to his employment.
23. The Respondent submitted that the issue for the tribunal was whether the direction is appropriate and questioned the appropriateness of applying a burden of proof to matters of opinion.

Tribunal's conclusions with reasons

i) We have carefully considered the written evidence and submissions presented to the Tribunal prior to the hearing and the oral evidence and submissions made at the hearing. We have also considered the relevant provisions contained in the legislation. Section 144(4)(a) of the Education Act 2002 provides that the Tribunal may not entertain an appeal under the section in so far as the appellant's case is inconsistent with his having been convicted of an offence. In the light of this provision, we do not accept that H has grounds for contesting the element of indecency in his conviction. He has a conviction for Indecent Assault on a child under the age of 14 and the Tribunal cannot go behind the fact of that conviction.

ii) The Secretary of State can review a direction if he is satisfied that there is evidence relating to the original decision of which he was not aware or there has been a change of circumstances. The Tribunal must consider the appeal on the basis of the evidence that was available to the Secretary of State at the time the decision was made. The Tribunal must consider whether the direction is appropriate. The burden of proof is on the Secretary of State to show that the direction is appropriate.

iii) H argued that the direction should be revoked because it was based on a one-off event in 1976. The case is unusual in that his employers did not become aware of his conviction and that he was able to continue teaching for 19 years without the fact of the conviction coming to light. There is no evidence of any inappropriate behaviour on H's part during the period that he taught, but even so, the two psychiatric reports are clear in their conclusions – Dr Williams did not regard H as no risk at all to children in his care. His description of H as a homosexual paedophile was not disputed by H except that H stressed that it was in his mind and unlikely to be acted upon due to his loss of sex drive. He regarded his loss of livelihood as the main change of circumstance since 1998 but presented little evidence to show that there was a real change in his circumstances in relation to his conduct.

iv) We found the evidence of Mrs Davies impressive and accepted her assessment of H's teaching, when she knew him in 1995, as good and that in her experience, he did his work to a "superb standard". This directly contradicted conclusions in the written evidence from Dr. Ernaelsteen about her view on H's likely abilities as a teacher. We noted that after this evidence, the Respondent's representative made it clear that they accepted that H was, and is likely still to be, a good teacher, contrary to the evidence that had been put before the Respondent at the time of the decision.

v) We considered the evidence presented in the medical reports of Dr Williams. It was Dr Williams who identified H as a "homosexual paedophile" in his 1996 report. We were unable to obtain evidence at the hearing as to how the leap had been made by Dr Williams from that "diagnosis" to identifying the risk to "children" in H's care. We were unable to find any evidence that H presented an identifiable risk to girls. Mrs Hunter sought to bring in evidence about research papers that she had read identifying 21% of paedophiles as offending against either or both sexes, where their interest was in prepubescent children. However, there was no evidence before the Tribunal that this information was before the Secretary of State when the original decision was made. Dr Hall-Smith in his report confirmed an identified risk to children "especially young boys", but does not appear to have given consideration to the fact that H might be suitable to teach older girls. We further noted that in the medical and forensic psychiatric reports and records of interviews, the words "children", "boys", "young boys" and "pubescent" are used inconsistently, and inconsistently with the evidence to which they refer. Given the evidence from Mrs Hunter that the Department was of the view that the reports were consistent we have concluded that the inconsistencies were present in the evidence presented to the Minister when the decision was made.

vi) We were impressed with the evidence given by Dr Hall-Smith, who presented as a sound witness who was not afraid to say when he did not know the answer to a question. We were particularly impressed by his concerns about H after the interview in September 2002, when Dr Hall-Smith formed the view that he showed lack of insight into the seriousness of the situation and tried to minimise the incident leading to his conviction in 1976. We agreed with his conclusion that H showed little or no remorse, tried to minimise the seriousness of the offence and showed no insight whatsoever into the effect of the incident on the child concerned. The lack of insight was underlined by H's own evidence at the hearing that because he had a conviction, he would be able to avoid situations where he might offend again. His testimonials referred time and again to his assisting with swimming clubs and athletics, where, we concluded, he would be in close proximity to young boys in a state of undress or in shorts, the very essence of his sexual fantasies in the past and that this showed both lack of insight and an inability to exclude himself from situations which might prove to be difficult for him. Even at the hearing he did not appear to appreciate the seriousness of the concerns of the Respondent and produced no evidence that he had done anything to show that he was addressing them.

vii) We agreed with the Respondent that the imposition of a condition of psychiatric supervision would be difficult to implement and police, and that it would rely on H's full disclosure to the psychiatrist of any change in his condition. That said, we disagreed with Dr Hall-Smith's suggestion that Dr Williams was advocating supervision of H's sexual fantasies. Both reports refer to the supervision of H's mental state and his depression, because as Dr Hall-Smith himself testified, it is not expected that an individual's sexual orientation will change.

viii) There is evidence that H has teaching skills to offer but nevertheless, we consider that there is an identified risk that must be taken into account. Dr Williams suggested that the risk was not unacceptable, but suggested that if H was to return to teaching it should be conditional on his having psychiatric supervision. We were surprised that neither Dr Hall-Smith nor the caseworker, Mrs Hunter, had found it advisable to ask Dr Williams to identify more clearly what he considered to be an "unacceptable risk" and to clarify why he had moved from identifying H as a homosexual paedophile to identifying the risk to "children". We do however accept their evidence that Dr Williams regarded the supervision as a condition on a return to teaching young children rather than an option. We were also surprised that no attempt had been made to obtain some form of up to date medical evidence from the appellant's general practitioner, rather than to rely on his own medical history. In the light of Dr Williams's comments about the stability or otherwise of his mental condition, we would have regarded some evidence from the general practitioner about recent mental condition as being significant.

ix) We did not agree with H's submission that his inability to find work was a relevant change of circumstance. We consider that the legislation envisaged changes relevant to the misconduct identified or the behaviour complained of rather than factors falling outside those two areas.

x) In the light of the evidence, we have concluded that it is appropriate that there should be a direction in place regarding H's employment as a teacher or worker with young persons. Having reached that conclusion, we considered whether it would have been appropriate to vary the condition from its original form. The original decision was made on the basis of Dr Williams' findings and Dr Ernaelsteen's recommendations. Despite Dr Williams's conclusions, Dr Ernaelsteen's view was that the depression offered the greater risk than a sexual transgression. The clear identification of H as a homosexual paedophile, a fact that he has not sought to challenge, identifies a risk to boys and prepubescent boys in particular, but not to girls. Dr Hall-Smith's view was that the risk would be equal in pre-pubescent children because of the similarity in their physiology when wearing nothing but underwear. Dr Williams's report refers to the risk to pubescent boys and this phraseology was reiterated by Dr Hall Smith in his recommendation following the second report in 2002. He acknowledged in evidence however that he did not have the relevant expertise to identify the risk to girls in this case. On the basis of the offence, the identification of sexual fantasies involving partially dressed young boys or boys in white underpants, the lack of sexual interest in women or girls and the diagnosis of H as a homosexual paedophile, we have concluded that a restriction on teaching pubescent boys is appropriate. On the basis of the evidence available to the Secretary of State at the time of the decision, we have also concluded that the current wording of the direction is inappropriate. The evidence does not support a total barring from teaching girls. We have concluded that the only risk identified in the evidence was to young boys. The difficulty for the Tribunal is in the identifying the relevant age threshold. Dr Williams refers to "pubescent boys", although the ages mentioned seem to indicate that they would be more likely to be prepubescent. The child who was the victim of the offence was 11 or 12, therefore likely to be on the cusp. We have concluded that the identified risk lies to young boys who are prepubescent or pubescent. There is no evidence to support an identified risk to girls or older children. We have therefore decided to vary the direction to state that H should not be employed other than as a teacher of children aged Key Stage 4 or above, in institutions where all enrolled pupils are at or above this age limits.

Order

Appeal allowed.

It is ordered that the Secretary of State for Education and Skills, do vary the direction made on the 4^th March 1998, so that it states as follows:

"In pursuance of Section 142 of the Education Act 2002, the Secretary of State for Education and Skills directs that, on grounds of misconduct, H shall not be appointed or employed in relevant employment, as defined by the above Act, by any authority or body after the date on which the direction is given other than in the following capacities: at a school for, or as a teacher of or at an establishment for children of Key Stage 4 and/or above."

Dated 18^th January 2004.

Meleri Tudur (Chairman)

Mr Richard Beeden

Mr Raymond Winn

H v Secretary of State for Education and Skills

[2003] 182. PC

CERTIFICATE

As nominated Chairman in this case and in exercise of my discretion under Regulation 29(3) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, I CERTIFY the following:

That the ORDER on the final page of the Decision dated 13^th January 2004 be deleted and there shall be substituted the following:

It is Ordered that the Secretary of State for Education and Skills do vary the Direction made on 4^th March 1998 so that it states as follows:

"In pursuance of section 142 of the Education Act 2002, the Secretary of State for Education and Skills directs that, on the grounds of his misconduct, H shall not be appointed or employed in employment to which section 142 applies, by any relevant employer, after the date on which the direction is given other than in the following capacities: at a school or establishment for or as a teacher of children aged 14 and above, in institutions where all enrolled pupils are at or above this age."

Dated: 29 January 2004

Signed: Meleri Tudur