England and Wales Care Standards Tribunal

 
W. C.
V
Secretary of State for Education
[2005] 518 PC
Before
Mr. Simon Oliver (Chairman) Mrs. Margaret Williams Mr. Michael Jobbins
Sitting at: 18 Pocock Street, London on 13^th December 2005
DECISION

Application

1. Mr. W.C. ('the Applicant') appeals under Section 4 of the Protection of Children Act 1999 against the decision of the Secretary of State for Education to place his name on the Protection of Children Act list.

Preliminary

2. This matter was determined as a paper hearing, there having been directions given by the President on 16^th November 2005.
3. A restricted reporting order was made by the President on 16^th November 2005.

Facts

4. The applicant was born on 23^rd November 1960 and had been employed by the T Fire and Civil Defence Authority ('the Authority') between September 1980 and February 2003. He was initially employed as a firefighter but latterly was a community Fire Safety Officer, a role which brought him into contact with members of the Young Firefighters' Association.
5. Whilst the Authority is not a 'child care organisation' within the meaning of Section 12 of the Protection of Children Act 1999, it does come within the definition of 'any other organisation' and therefore has a discretion about whether or not to make a referral to the Secretary of State pursuant to Section 2 of that Act. The Authority state that W.C. held a 'child care position' within the meaning of S.12 of the Protection of Children Act 1999.
6. It is the Authority's case that they dismissed W.C. on the grounds of misconduct which harmed a child or which placed a child at risk of harm, his effective date of termination being 24^th February 2003.
7. Two disciplinary charges (pursuant to Paragraph 8(3) of the Fire Service (Disciplinary) Regulations 1983) were found proven in respect of W.C. (namely (i) disobedience to orders and (ii) conduct prejudicial to the representation of the Brigade). The first charge (disobedience to orders) is committed where a member of the fire service disobeys and without reasonable cause fails to carry out any lawful order whether in writing or not. The allegation was that W.C. disobeyed fire brigade orders by failing to adhere to the Brigade's Child Protection Policy that had been issued to all personnel.
8. The second offence is committed when a member of a fire brigade intentionally or recklessly and without reasonable cause acts in a manner which damages, or is likely to damage the reputation of the Brigade. It was alleged that W.C., on a number of occasions in or around June 2001, permitted a female member of the Young Firefighters Association to sleep at his house with only him present.
9. As to the background to this matter coming before the Tribunal is that, since 29^th November 1999, W.C. had been based at the S Community Fire Safety Centre and undertook work for the S Branch of the Young Firefighters' Association.
10. One of the Young Firefighters that participated in the Young Firefighters' Association was a young girl named A.H. A.H. is a significant individual regarding the circumstances of W.C. A.H. was 14 years old when she joined the Young Firefighters' Association.
11. Concerns about W.C.'s involvement with A.H. were initially brought to the attention of the Authority on 22^nd June 2001. W.C. had been seen walking alone with A.H. in an area of S by an off-duty firefighter on 17^th June 2001. This information was brought to the attention of a Divisional Officer on 22^nd June 2001. W.C. was informally interviewed about the matter on 28^th June 2001.
12. On Friday 29^th June 2001, Mrs. H (A.H's mother) telephoned the Authority and requested that she speak with somebody in the Authority's Personnel Department. Mrs. H spoke with a Miss P. Mrs. H. submitted an oral complaint regarding W.C. The complaint was recorded on the Authority's Complaint Form. This form is dated 29^th June 2001. A.H. was 16 years old when this formal complaint was received.
13. Divisional Officer F was appointed by ACO A (the authority's Investigating Officer) to undertake a disciplinary investigation on his behalf regarding Mrs. H's complaint and whether W.C. may have committed any disciplinary offences. This investigation was initially commenced pursuant to Regulations 5 and 7 of the Fire Services (Discipline) Regulations 1985 ("the Regulations"). On 28^th June 2001 WC was transferred to the Brigade Training Centre. A letter dated 3^rd July 2001 advised W.C. that he was being investigated in accordance with the Regulations. Following an interview by DO F on 6^th July 2001, WC was suspended on full pay with effect from 9^th July 2001.
14. W.C. admitted both charges and submitted Statements of Explanations regarding both of the charges.
15. By a letter dated 23^rd November 2001, a Full Hearing before the Chief Fire Officer was arranged to take place on 11^th December 2001.
16. The Full Hearing before the Chief Fire Officer was re-arranged for 2^nd April 2002. The Hearing was postponed at the request of the FBU so that they could conclude its internal investigation regarding "whether or not representations should be granted to Sub Officer C."
17. By a letter dated 18^th July 2002, W.C. advised that he was "unfit for duty". However, W.C. indicated that he would be attending the Full Hearing on 31^st July 2002 with him representing himself at the Hearing. W.C. failed to attend the Full Hearing. The Hearing was therefore adjourned to 27^th August 2002. In the interim period, W.C. was required to be examined by Dr. D (the Fire Authority's Medical Advisor).
18. The Full Hearing of 27^th August 2002 was adjourned at the request of W.C.'s then legal representative who was unable to attend the scheduled Hearing due to commitments. A further Hearing date of 30^th September 2002 was arranged.
19. Neither W.C. nor his legal representatives attended the Full Hearing of 30^th September 2002. W.C. was reported to be "too ill" to attend the Hearing. A request had been made to postpone the Hearing but the Chief Fire Officer determined that the Full Hearing should proceed in his absence.
20. By a letter of 4^th November 2002, W.C. elected to appeal to the Personnel Committee. Although out of time, his appeal was permitted to proceed. An Appeal Hearing was therefore listed for 20^th January 2003.
21. W.C. failed to attend the Appeal Hearing on 20^th January 2003. Notwithstanding this and uncertain of WC's grounds of appeal, the Appeal Hearing nonetheless proceeded in is absence. The Appeal Hearing progressed on the basis of the Personnel Committee considering whether the commission of the offences by W.C. as set out above were established and, if so, to determine what the appropriate award should be. The Personnel Committee upheld both charges and resolved to dismiss WC from the Service.
22. W.C. had the right of appeal against the decision of the Personnel Committee to the Secretary of State. The time period for such an Appeal elapsed without an appeal being lodged.
23. The Authority referred the matter to the Secretary of State on 18^th March 2003 and the Protection of Children Act Team sent WC a letter advising him that he was provisionally placed on the POCA list on 31^st March 2003. Mr. WC returned the response form on 15^th April 2003 indicating that he would present written submissions at a later date. This he did on 31^st July 2003. There then began a process of obtaining observations by both WC and the Authority on each others submissions.
24. This process was lengthy – it took about a year – as each party submitted numerous lengthy representations and so it was not until 21^st July 2004 that the letter confirming that WC's name was on the POCA list was sent to him. However, this letter was returned "addressee gone away" and his whereabouts was not established at this time. Indeed, it was only established again in March 2005 when there was a "positive hit" through the Criminal Records Bureau when WC applied for a school caretaker's job. This positive hit provided the Secretary of State with WC's new address. On receipt of this information WC was then sent a second notification that he was confirmed on the POCA list on 17^th March 2005. As a result of that notification he appeals to this Tribunal.

Tribunal's conclusions

25. We agree that WC held a child care position within the meaning of s 12 of the Act and that it was appropriate for the Authority to refer him to the Secretary of State pursuant to Section 2 of that Act.
26. In reaching our decision we have to be satisfied in accordance with section 4 of the Protection of Children Act 1999 both that WC was guilty of misconduct and that he is unsuitable to work with children. Only if we are satisfied that the answer to both questions is yes are we able to dismiss the appeal. If one question is answered negatively, we have to allow WC's appeal.

Was WC guilty of misconduct?

27. We are satisfied that WC was guilty of misconduct. We have reached this conclusion for the reason that WC admitted in 2001 that he had broken the rules and had allowed himself to become closely involved with this girl. At no time since 2001 has WC sought to challenge his dismissal but has offered 'Statements of Explanation'. In reading them we are satisfied that they do not provide a defence to the charges made by the Authority but equate to mitigation.
28. In reading the Authority's child care policy we are satisfied that the breaches which led to the charges are serious and that the authority did dismiss WC on grounds of misconduct.

Is WC unsuitable to work with children?

29. This limb of section 4 of the Act has caused us considerable difficulty. We felt ourselves greatly hampered by WC's wish to have the matter dealt with as a paper hearing as we have not had the benefit or opportunity to hear from him directly. Indeed it is unfortunate that WC has failed to attend (for whatever reason) any of the hearings conducted by the Authority to give his version first hand.
30. This lack of involvement by WC in the procedure extends to the current time. We have no information about his current status: where he lives, who he is living with and what his general circumstances are like. On that basis, we can only rely on the relatively old information that appears on the papers.
31. We are equally concerned that WC operates through a PO Box and after the Authority's procedure and the early involvement of the DfES misconduct team he seemed to disappear. That his present whereabouts only came to light at a time he knew he had been provisionally listed was because he applied for a position to work with children, adds to our concerns. He does not appear to us to be an individual who is making himself available and accessible unless it suits his purpose. We would have liked to have asked WC about these matters in case there is a reasonable and understandable explanation about them.
32. It is for the Tribunal to satisfy itself that WC is unsuitable to work with children. Part of this decision making involves hearing evidence from WC as to why he believes that he is not (or no longer) unsuitable to work with children.
33. In reaching our decision we note that at the time of the two acts of misconduct WC was in a position of authority and so his behaviour was in direct contravention of the authority's child protection policy and was consequently a clear breach of trust.
34. We note that WC is critical of AH's family life and that Mrs. H suggested that WC was grooming her daughter. We do not have sufficient evidence to reach any conclusion on either of these points. Had this been the only evidence it would have been inconclusive. However, we are aware that there are corroborated reports of WC making suggestions about threesomes, lesbian kissing and being in a cupboard.
35. We are concerned that the first time AH came to WC's house he did not contact either the police or social services and on the second occasion the reference to the social services came only after Mrs. H had called the police who had visited WC's house. These actions do not suggest to us a man who is acting in a professional manner.
36. Whilst there is no evidence of direct harm to a child, we are satisfied that taking AH home and keeping her at home overnight without telling anyone where she was or what he was doing in light of their respective positions in the Young Firefighter's Association was a gross breach of trust and actions which placed a young person at risk of harm.
37. We conclude, therefore, that WC is unsuitable to work with children. Given that this is a paper hearing and so we cannot hear directly from WC, we have considered whether there is any evidence to satisfy us that this is no longer the case. In reading both lever arch files of papers we could find no evidence that WC acknowledges the concerns of others, that he was remorseful for what had happened or that he was able to perceive that his actions could place others in danger.
38. Indeed, the clear impression from everything we have read is that WC seems to think that everyone was against him, that he felt he could make a judgment on his own about whether or not AH should stay with him.
39. The picture we are presented with is that WC is either a naive and misguided man who thought he was doing the right thing or someone who acted in a calculated and deliberate way. Yet again the lack of direct oral evidence from WC has hampered us – and not helped him. Even if WC is given the benefit of the doubt, the fact that he does not seem to understand or is aware of the implications of his actions (however innocent) leads us to conclude that he has lack of insight and common sense in child protection matters.
40. This failure to understand the concern of others and the lack of insight satisfies us that there is a risk that this behaviour will continue and that WC will remain a risk to children.
41. Having reached that conclusion we have answered both questions affirmatively. In those circumstances, we have no alternative but to unanimously dismiss the appeal. WC's name must remain on the list.

Order

We dismiss this appeal

Simon Oliver

Margaret Williams

Michael Jobbins

15^th January 2006