England and Wales Care Standards Tribunal

 


MB v Secretary of State [2005] EWCST 512 (PC) (20 December 2005)

MB -v- Secretary of State [2005] 512.PC [2005] 513.PVA
-Before-
His Honour Judge David Pearl (President) Dr Frada Eskin Mr Peter Sarll
Heard on 12^th December 2005

The Appellant appeared in person, with the assistance of a friend Mrs Patricia Conneelly JP.

For the Respondent: Ms N Leiven of Counsel instructed by the Treasury Solicitor.

1. The Appellant appeals against two decisions of the Respondent dated 30^th March 2005; namely to confirm her on the Protection of Children Act list (the PoCA list) and to confirm her on the Protection of Vulnerable Adults list (the PoVA list).
2. A Restricted Reporting Order was made under Regulation 18(1) at a preliminary hearing held in accordance with Regulation 6(1) and dated 29^th September 2005. The Order was continued at the conclusion of the present hearing. The Decision is published in an anonymised form so as to protect the private lives of residents of the children's home (referred to as WL) and the private life of the child of the Appellant.
3. The Appellant in this case was unrepresented, and the Tribunal took considerable care throughout the hearing to ensure that she had ample opportunity to present her case, and to ensure that she was not in any way at a disadvantage. It was for this reason that we allowed Mrs Conneelly to sit beside her throughout the proceedings to provide support and assistance, even though Mrs Conneelly was also a character witness for the Appellant. We are satisfied that the Appellant was not in any way prejudiced by the fact that a lawyer did not represent her at the hearing.
4. We heard evidence given on behalf of the Respondent by Ms Linda Bull of the Coventry City Council, Department of Social Services and Housing. She is at present Head of the Adult Services Group in that Authority, but between 1998-2003, she was an Assistant Director with responsibility for all the frontline social work fieldwork services, including children's area teams and the child protection and review services. We received a written Witness Statement from Ms Jackie Mallett. She was unavailable to give evidence in person. The Appellant did not require Ms Mallett's attendance.
5. We heard evidence given on behalf of the Appellant, from the Appellant herself, and from two character witnesses, namely Mr David Cairns and Mrs Patricia Conneely JP. Mr Cairns is a full time shop steward within Coventry City on behalf of the TGWU. Mrs Conneely was an employee of the Coventry City Council's Social Services Department for almost twenty five years prior to her retirement. We also received witness statements in support of the appellant from four colleagues of the Appellant; namely Mr Brian Moore, Ms Melanie Gomez-Henriques, Mrs Lorraine McLoughlin and Miss Helen O'Donogue.
6. The Law. The primary listing in this case is the PoCA listing. The appeal is brought under s 4(3) of the Protection of Children Act 1999. 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.

7. The burden of proof rests on the Secretary of State to satisfy us to the civil standard both that the Appellant was guilty of misconduct that harmed a child or placed a child at risk of harm, and that she is unsuitable to work with children. It is our understanding that in this case in relation to s 4(3)(a), the Secretary of State is relying primarily on the risk of harm.
8. The second appeal (the PoVA appeal) is brought under s 86(3) as read with s 92(4) of the Care Standards Act 2000. This section is in similar terms to s 4(3) of the Protection of Children Act 1999, except that unsuitability to work with children is replaced by virtue of s 92(4) of the Care Standards Act 2000 with unsuitability to work with vulnerable adults.
9. The alleged misconduct which harmed a child or placed a child at risk of harm. Most of the facts in this case are not in dispute. Nonetheless it is necessary to set out the facts and to make our own findings, given that our view of the facts inevitably has an impact on the issue of unsuitability.
10. MB was at the time of the incident working as a residential social worker at WL children's home. It would seem that at a team meeting in the Summer of 2003, MB proposed a day trip to Bournemouth for four residents of WL. One of the residents who was to go on the trip was C. The two workers who would accompany the children were to be MB and a colleague, Mr Jason Phillips. It is common ground that no formal risk assessment was made of that trip, either at the meeting or prior to it actually taking place.
11. The absence of a risk assessment, with the benefit of hindsight, is surprising. It would appear that C (14 years of age at the time) had exhibited behavioural problems and was the subject of a Statement of Educational Needs based on these behavioural difficulties. Even more troubling was the fact that he had developed an infatuation with MB. In her evidence to us, MB described C as an "aggressive and disturbed young man." The infatuation C had with MB had been discussed at team meetings. Her manager was fully aware of the situation, and a Clinical Psychologist had identified that MB was at risk of physical or sexual assault.
12. The trip to Bournemouth took place on 8^th August 2003. The car used was an Espace, which neither Mr Phillips nor MB had driven before. Mr Phillips was the driver, and MB sat next to him in the front. MB said that it was never an option for her to sit at the back with the youngsters because of the difficulties she had with C, and the advice that she had received from the Psychologist in relation to C. She told us that Mr Phillips did not want her to drive: "Mr Phillips did not like females driving. He thought it was a role for a man."
13. It would appear that there were problems with C on the way down, whilst in Bournemouth, and again on the way back. On the way down, he stuck his feet out of the window. The car had to stop and C persuaded to sit back in his seat. Whilst in Bournemouth, C ran off whilst they were all on the beach. He returned, and climbed on to the roof of the vehicle. He did not eat the food that was provided.
14. The journey on the way back was a disaster. MB told us in evidence that C started chucking rubbish; that C and another boy (K) started swearing at her and calling her names. The situation then escalated when C hit Mr Phillips with his arm. The car swerved and Mr Phillips stopped the car at the next lay- by. The lay-by had lorries parked. They were on the busy A34 and it was around 9.30pm. MB told us that Mr Phillips told C to get out of the car. C got out of the car, and Mr Phillips drove off. She said in evidence to us that as he drove off she spoke to Mr Phillips along the lines of "something about, shall I call the unit?" She told us that she did not question Mr Phillips' actions because she had advice from her managers to always "take a back seat" so far as C was concerned, and that she would not outwardly contradict colleagues nor question their actions. C was left at the lay-by some 80 miles or so from WL with little if any money and no mobile.
15. She said that as Mr Phillips was pulling out of the lay-by she phoned WL. She had hoped to speak with Ms Mallett, the senior worker on duty that evening. In fact Ms Mallett was not there, but she spoke with Ms Rama-Leye (now Ms Gomez-Henriquez). She asked Ms Rama-Leye to phone her back which she did. MB then told her what had happened. She asked her to phone the police, Ms Mallett, and the Emergency Duty team. Ms Rama-Leye states in the document attached to her witness statement that she phoned Ms Mallett immediately after speaking with MB, and that it was Ms Mallett who told her to phone the police. In any event, the police were called. The police then contacted MB. The police did try to collect C; but unfortunately he was not picked up until the following morning.
16. MB accepted in her evidence before us that she should have done things differently. She said that she should have "gone against another member of staff." She said that she anticipated that the police would pick him up and indeed that he would be returned by the police to WL. She acknowledged in answers to our questions that what she did was misconduct that placed a child at risk. She accepted her responsibility in allowing C to remain on that lay-by whilst they drove off.
17. Others were of course guilty of misconduct which placed a child at risk of harm. Mr Saunders (the manager) must shoulder responsibility in allowing C to go on this trip without any risk assessment having been undertaken, and knowing full well the difficult situation regarding C. Ms Mallett also must shoulder responsibility for poor management of the incident once it became known to her. Mr Phillips clearly carries very considerable responsibility for his decision to drive off. We have no doubt that other strategies could have been employed; such as MB taking over the driving and Mr Phillips sitting in the back with the youngsters; or stopping the car, calling 999 and waiting until the police came and took C away.
18. MB, although of the same "rank" as Mr Phillips, was the Worker with the more experience, and we do find that it was misconduct of a gross kind to allow Mr Phillips to drive off, leaving a 14 year old boy who was in their joint care at the side of a busy main road, many miles from home and with no way of making contact with anyone. There was, in our view, no mitigating circumstances in this case. C was a difficult child; there were other children to consider as well; but Residential Workers inevitably have to deal with difficult situations. This is the very nature of the job.
19. We were told by MB, and indeed by Mrs Conneely, that there were other cases where children had been removed from vehicles when displaying aggressive behaviour. Other character witnesses refer to these other cases, although without setting out any details. We accept as a fact that Mr Phillips had apparently done this a few weeks prior to this incident, and we accept that he had been told by his managers that what he did on that occasion was appropriate. We heard some evidence relating to this incident, but we are unable to express any view on what exactly happened as none of the information we heard was direct evidence. In any event, whether the earlier incident was or was not comparable, the matter we are dealing with is leaving a child at a lay-by on a main road at 9.30pm many miles from home. This is misconduct within s 4(3) of the Act, and MB does not contest it.
20. Unsuitability to work with children. In considering the second limb of the legal test, we have been assisted by the evidence of Ms Bull. Ms Bull was asked to Chair the Disciplinary Hearing in the case of MB, and she also presented the management case to the Council members of the Appeals Committee. In her evidence to us, she stated that she considered MB to be unsuitable to work with children for two reasons. First, the incident itself. Secondly, now more than two years on, she felt that MB had not accepted fully her responsibility for the incident and that she had not really shown that she had the ability to learn. She said that absolute trust was needed and that there was no middle way.
21. When considering issues of unsuitability, it is as well to emphasise that each case to come before the Tribunal must be looked at on its own facts. Context will be all important. Nonetheless, some guidance can be obtained from looking at earlier cases.
22. At one end of the spectrum is the case of Quallo [2003] 213.PC. This case involved two related incidents of excessive restraint used in relation to disturbed adolescents. The Appellant in that case had had little training in dealing with difficult children. The Tribunal analysed the two incidents, and concluded that the fact that the Appellant's performance fell below par on one particular day did not make him unsuitable to work with children. That appeal was allowed.
23. Alabi [2004] 339.PC is at the other end of the spectrum. Here, the Appellant left a unit unsupervised for a period of time. Whilst away, one of the residents set off a fire alarm causing the police and fire brigade to attend. The Tribunal in that case said that "Mr Alabi simply did not and does not comprehend the nature of the risk to vulnerable young people his actions have caused and that to prioritise his own needs was a singularly bad lack of judgement, not least because he knew he was breaking the rules." The appeal in that case was dismissed.
24. We do not think that MB prioritised her own needs on 8^th August. We believe however that she made a gross error of judgement. We believe that she now realises this error, although we have to say that we are disturbed by how she set out her grounds of appeal as recently as 5^th November 2005. She states there: "At no time did my actions put the said young person at danger, although it can be said that my lack of actions did contribute to the dangerous situation he was placed in." In her evidence to us, she said that she did not believe it was her action, but rather her inaction. We feel that she continues to display a worrying tendency to attempt to allocate blame elsewhere and to minimise her role in the incident.
25. Ms Leiven accepts on behalf of the Secretary of State that MB would not go out of her way to place children at risk, but that the required trust that is necessary for a person to be suitable to work with children is now lacking. She referred us to the evidence given by Ms Bull. We found Ms Bull a compelling witness. She has considerable experience in this area and she was categorical in her view that the trust that is so necessary has been lost. We have of course placed Ms Bull's observations against those of the witnesses who spoke in support of MB, namely Mrs Conneely and Mr Cairns (as well as those who submitted character statements in support of her). We have to say that we found Ms Bull's observations more objective and more compelling.
26. The Tribunal has had to grapple before with the undoubted sympathy it always has in individual cases, and the tragic impact on a person of a listing on the PoCA list. We repeat what was said in CN [200] 398.PC;[2004] 399.PVA.

"We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in its widest possible context. It may well be, as the Tribunal has said before (eg BR [2003] 205.PC) that it is unfortunate that the 1999 Act does not enable the Secretary of State or a Tribunal to prohibit a person from being employed by a child care organisation in some positions while allowing him or her to be employed in others, in the way the Education Act 2002 does. It is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Appellant, but also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children "in a child care position" are beyond reproach.

27. So, sympathetic as we are to what has happened to MB since the incident on 8^th August 2003, and fully taking into account her many years of exemplary service prior to the incident, we are bound to say that we are not persuaded that MB can be given "the trust" that is so essential when working with children. Protection of children is the core to this area of legislation. We are forced to the conclusion that she is unsuitable to work with children.
28. Unsuitable to work with vulnerable adults. It is of course essential that those who are considered unsuitable to work with children are not given positions of trust in relation to vulnerable adults. This is not to say that we consider a vulnerable adult would be at risk of harm by MB. But the law does not require such evidence. It is sufficient to satisfy the test in s 86(3)(b) read with s 92(4) of the Care Standards Act 2000 that she is unsuitable to work with vulnerable adults by virtue of the misconduct which placed a child at risk of harm. We believe that public confidence in the provision of services to vulnerable adults would be undermined if it became known that MB was employed to work with vulnerable adults, given the fact that she was prohibited from working with children.
29. We do not consider that it will always inevitably follow that an appeal under s 86 will be bound to fail in the event of an appeal under s 4 being dismissed. As always in this area, context will be all important. But as in the case of CN [2004] 399.PVA (a speech and language therapist), we have formed the view that the continuation of her name on the PoCA list makes her unsuitable to work with vulnerable adults.
30. Accordingly, it is our unanimous decision that both appeals be dismissed.

His Honour Judge David Pearl

(President)

Dr Frada Eskin

Mr Peter Sarll

20 December 2005.