England and Wales Care Standards Tribunal

You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> JMC v The Secretary Of State For Education And Skills [2006] EWCST 664(PC) (16 February 2007)
URL: http://www.bailii.org/ew/cases/EWCST/2007/664(PC).html
Cite as: [2006] EWCST 664(PC)

[New search] [Printable RTF version] [Help]

JMC v The Secretary Of State For Education And Skills [2006] EWCST 664(PC) (16 February 2007)

J.M.C.

Appellant

-AND-

THE SECRETARY OF STATE FOR EDUCATION AND SKILLS

Case No: [2006] 664.PC.

Respondent

DECISION

Date

16 and 17 October 2006 and 17 and 18 January 2007.

Appeal

JMC appeals under section 4 of the Protection of Children Act 1999 against the decision of the Secretary of State to include him in the list maintained under Section 1 of that Act.

Attendance

For the Appellant

Mr Currie (Counsel) for the Appellant

Instructed by Thompsons, Solicitors.

The Appellant

Witnesses:

KW (17.01.07)

RW (18.01.07)

Robert Stephen

For the Respondent

Mr Auburn (Counsel) for the Secretary of State

Instructed by the Treasury Solicitor

Witnesses:

Marie Brennan (17.10.06)

S B (17.10.06)

S (17.01.07)

W (17.01.07)

Preliminary matters

(a) At the commencement of the hearing we directed that all witnesses should give evidence under oath and none should be in the tribunal room until they gave their evidence.

(b) The Respondent agreed that the evidence of Robert Nathan Stephen was accepted and there was no need for his attendance and the Appellant agreed that the evidence of Richard Simpson was accepted and there was no need for his attendance. We had also written evidence of TC and TS who did not appear before us whose evidence was in front of us in written Statement form.

(c) The Appellant indicated that if the Tribunal decided he had been guilty of misconduct within the meaning of Section 4 (3) (a) of the Protection of Children Act 1999 he would not contend that he was suitable to work with children within the meaning of Section 4(3) (b) of that Act.

(d) A Restricted Reporting Order was made under Regulation 18(1) at a preliminary hearing held in accordance with Regulation 6(1) and dated 16 June 2006. The Order was continued at the conclusion of the main hearing. The Decision is published in an anonymised form so as to protect the private lives of the stepchildren of the Appellant.

(e) On 17 January 2007 we received and accepted a third Statement of the Appellant (pages 153 a-d of the bundle).

(f) On the 16.10.06 the Tribunal viewed the video evidence of the interviews of S and W by the police and Social Services.

The Issues

In 1995/96 the Appellant was a practising Social Worker employed by the County of Avon. He was referred to the Consultancy Service in February 1996 as a result of the Child Protection conference which concluded that the accounts of S & W relating to allegations of sexual abuse by the Appellant on them were true and that the Appellant posed a potential risk to children.

The Appellant maintains in his Notice of Appeal that he did not sexually abuse S & W and that the allegations were the same as those made by S & W's mother against her previous husband which turned out to be malicious. He further alleges that the statements of the children at the time appeared to be written by "someone far in excess of their ages". He relies on the fact that the CPS did not proceed on the evidence and dropped the case and that he was never charged, cautioned, or convicted of any offence.

In his evidence to us, the Appellant stated that S & W were coached by their mother into making and sustaining false allegations against him.

Facts

On the 26 December 1989 S & W's mother reported to the Police that she believed their biological father had sexually assaulted S, who was then, aged three years and ten months. As a result the two children were placed on the child protection register on the 29 December 1989. The allegations were investigated by the Police and Social Services.

The CPS decided not to prosecute the father primarily because of the failure of the Police to follow the guidelines on video evidence in interviewing S. Civil proceedings relating to the father's claim to access to S and W were heard by the High Court in Preston in March 1991. On reviewing the evidence in detail the Court concluded that it was "left with no totally reliable evidence" and supervised access was granted. That arrangement was still in force at the time of the alleged incidents relating to this case. However the papers before us suggest that the Social Services Department concerned believed that the abuse of S had taken place and there is no evidence to support any suggestion that the Police considered the allegations made by S's mother were in any way malicious or that they considered prosecuting her as alleged by JMC.

In October 1990 the children and their mother moved to Nailsea near Bristol to be nearer the mother's family in Stroud. In September 1990 S & W's names were removed from the Child Protection Register in their previous home area.

The Appellant was previously married to JC and has a son P then aged five who lived with his mother. Until August 1994 the Appellant went out with a Mrs W who was the mother of young children. In September 1994 he started seeing S & W's mother and was soon spending time at her house and staying over night. They got married on 1 April 1995 and the Appellant moved into the family home in Nailsea. On 19 April they moved to a new home in the same area.

On 8 June 1995 S & W's mother wrote to Avon Social Services requesting access to S's files as S had had support from the Social Services Department in the previous two years arising out of the original allegations of abuse by her biological father. She indicated that she had remarried and she and her husband wished to seek to adopt the children. In her Witness Statement S's mother indicated that the reason that she had sought access to the file was that the Appellant had indicated that he wished to help S and needed to view the detailed file to do so. In her oral evidence she indicated that she had forgotten about the adoption issue when writing her Witness Statement and that that might also have been a reason for her request. The Appellant told us that it was S & W's mother who was advocating an early adoption but also accepted that he believed that he could help the children and their mother with their problems.

The parties' marriage was short lived. On Friday 4 August 1995 the Appellant's wife left S & W with their grandparents & went on holiday to a dance festival. The Appellant travelled to the same festival in Sidmouth separately. Both of them had a lengthy interest in dance. In the following week, most probably on or about 8 August, the parties had an argument. It is not disputed by the Appellant that in the course of the argument he kicked or kneed his wife in the back, although she alleges the assault was more severe. As a result she left the dance festival and returned to her home that night and spent the following rest of that week either with her step father and mother or her step brother.

The notes on the file of the Social Services Department suggest that she returned to the matrimonial home on 13 August 1995. This date is consistent with the evidence of the Appellant and S & W that they returned to Bristol on that day and is consistent also with the account that it was the weekend of the Bristol Balloon Festival. Indeed it is the day on which one of the major allegations of abuse of S is said to have occurred. However the evidence of Mrs B was that in fact this occurred on the 19^th but appears to us unlikely that that is correct. The parties met in the week of 13 August and agreed that they would seek counselling in the hope that their marriage could be repaired.

In the meantime, S's mother visited the Social Services office and inspected S's file which was then available to her. This occurred on 14 August 1995 and she told us that she did so because she was still hopeful at that time that her marriage could be repaired and an adoption application made in due course. Indeed copies of the Social Services file were sent on to her on 18 August.

On 19 August she told the children that the Appellant would not be living with them for a while. She expected them to be upset but they were not. It is a little unclear on the evidence whether or not the allegations of abuse were made by S on 19 August or on Sunday 20 August. Certainly on Sunday 20 August it appears that following a discussion with her mother about her sore vagina S indicated that the Appellant had got her to play with his willy. As a result of this disclosure her mother then spoke to W and asked whether the Appellant had ever touched his willy or asked him to do naughty things. W had indicated that the Appellant had touched his willy and he had had to touch his. As a result, having contacted a friend for support, she reported the issue to the Police.

On Monday 21 August Ms Brennan made a home visit to see S and W and their mother. Ms Brennan is a Social Worker employed by the North Somerset District Council. She qualified as a Social Worker in 1986 and prior to that from 1973 had worked as a residential Social Worker. At that meeting, which was primarily to explain to both children and their mother the investigation process, it is unclear whether or not any discussion took place as to the nature of the allegations themselves. There are however in the papers before us contemporaneous notes of what happened, which certainly indicated that the main issues discussed were procedural.

From the comprehensive notes of the Social Services investigation it is clear that on 21 August the father of Mrs B (the mother of S & W) telephoned Social Services to say that he was unsure of the allegations being made but that he felt the allegations were being made by Mrs B to end the relationship with the Appellant and that she had had emotional problems since eleven years of age. He also added that the allegations made by his daughter when in Lancashire were misguided and he would like to talk about these. We also saw a letter from Mrs B's father to her making the same points. The maternal grandfather was subsequently seen by the Police and in the interview with them he maintained his view that SB was capable of "manipulating her children".

On 5 September 1995 there was a phone call from NA (the step brother of SB) to the Duty Social Worker in which he conveyed the family's concerns about the events and maintained that Mrs. B was capable of manipulating the children into saying things.

On 22 August both S & W were interviewed by WPC Saunders and Chris Wilson (Social Worker) and the interview filmed on video at the Clevedon Recovery Suite in Clevedon, Bristol. We have seen the video tapes of the two interviews and we have read the transcripts of those interviews. During the interview W said that sometimes the Appellant and the family was OK, sometimes it was not. He maintained that the Appellant would shout at him and smack him on the head. He then talked about having a "special hug" from the Appellant. This appeared to involve him and the Appellant lying on W's bed side by side. They would hug and the Appellant would ask W to touch/rub his willy and the Appellant would touch W's willy. He went on to describe what he was wearing and how the Appellant's willy would feel. He said in the interview that he was not objecting to the Appellant returning to the house.

In S's interview she appeared relaxed and eager to talk and she understood why she was being interviewed. She talked of the Appellant giving her "special hugs" usually on her mother's bed. She described that the Appellant put his hand inside her pants/down her shorts and would rub her vagina. On two occasions this happened on her own bed. Other times the Appellant would lie on his back on her mother's bed and S would lie (face down) on top of him. Other times she would lie on her back on top of him. She described J's willy as having blobbed around and sometimes that it was a bit wet. She said he had not put his willy in her vagina. She maintained that the Appellant kissed her on the mouth and his mouth was open and hers was closed. She thought that if she didn't do what she was asked the Appellant would smack her. She indicated that these things happened when her mother was out. She remembered that on one occasion the Appellant had left her and said he was going to give W a hug and that he had gone into W's room and closed the door.

On 23 September 1995 the Appellant was interviewed by the Police. Unfortunately, we have no documentary evidence of that interview but only a note of what the Police told Ms Brennan and others in Social Services on the telephone about the outcome. It was said that at the interview, the Appellant had admitted to:

Using massage oils and massaging the children for therapeutic reasons;

That he had bathed with the children and that S may have accidentally touched his penis;

That he did kiss S on the lips;

He may have touched S's leg,/ knee/ thigh in the car

Efforts by the Respondent to obtain details of these admissions for this appeal have resulted in one of the Police Officers concerned remembering the admission about therapeutic massages and the bath incident but not the kissing on the lips or touching S's leg in the car.

Ms Brennan carried out a further home visit on 6 September 1995. When she spoke to W about how he was feeling, he enquired whether the Appellant would lose his job as a result of what was happening and when asked why, he said he worked with other children and he was concerned for them. He told Ms Brennan of an incident in Weston-Super-Mare where he alleged the Appellant had been rough with him, pushing him hard against a wall and said that at other times the Appellant had hit him around the head.

When Ms Brennan asked S how she was feeling, she told Ms Brennan that the Appellant and she were in his car on the way back from Gloucester on the day of the Balloon Festival, a Sunday, and she alleged that the Appellant had asked her to pull her shorts down but she had refused and he had then put his hand under her shorts and rubbed her vagina. This had happened in the traffic jam. She also asked if the Appellant would lose his job and when asked why, said she felt he ought to because he worked with children.

As a result of this further allegation, both S & W were interviewed again at the Clevedon Recovery Suite by WPC Saunders and Chris Wilson (Social Worker) on the 28 September 1995.

In W's interview it was clear that he knew he was being interviewed again because he had told his mother some more things about the Appellant. He talked about a car journey he had taken with the Appellant. It was coming back from Gloucester some time previously. He maintained that the Appellant had put his hand on W's willy inside his shorts and underpants and rubbed it up and down. He had asked whether it was nice and he then asked W to touch his own. He told about the massages that he used to receive from the Appellant to his shoulders and back with oil and of the incident at the seaside.

In S's interview she said she had thought of more things that the Appellant had done. She talked about the balloon fete and being driven back from the Severn Sea. She said that they had had to stop because of a traffic jam and she went on to describe the Appellant putting his hand inside her shorts and rubbing her vagina. She went on under questioning to describe in some detail what had happened.

She was asked about her massaging and she said that the Appellant had massaged her back and feet as had her mother but also the Appellant had massaged her tummy, her chest and the side of her legs at the top.

On 19 October 1995 the Police informed Social Services that the Crown Prosecution Service had decided not to proceed with the prosecution. The CPC's concerns apparently centred on the fact that whilst S was a good witness, her previous history of abuse would result in her being found less credible. They felt W had not responded to triggers given by the interviewing Officers and more leading questions were used so that the video may not be admissible. They were concerned that both children would be subjected to fierce cross-examination. The Police made it clear that they did believe the childrens' claim but the burden of proof required for a criminal prosecution was too great.

In the meantime, the Social Services had been carrying out a thorough review of the Appellant's contacts to ensure there were no other child protection issues. In the course of that, they had spoken to Mrs W (the Appellant's new partner) who indicated that she had had absolutely no reason to believe that her children were in any way in danger as a result of their contact with the Appellant. They also spoke to the Appellant's first wife in a lengthy interview in which she too refused to accept that her child, P, had in any way been at risk in the various access visits which had been made since their separation.

On 10 November 1995 there was a Child Protection conference. We have seen a record of that conference and heard Ms Brennan on the issue. The conference considered all of the issues and clearly minuted that S & W's allegations were believed. Ms Brennan in her evidence to us confirmed that this was the view expressed both by Social Services and the Police and it remained her view that the allegations were entirely true.

Following the Child Protection conference on 10 November 1995, the Chairman of that conference wrote to the Appellant to indicate that "the investigating officers from the Police, Health and Social Services Department believed the accounts given by the children. The Crown Prosecution Office had decided, for technical reasons and because of the burden of proof required for criminal prosecution, there is not an adequate basis for such course of action. However, this did not preclude the conference from reaching a conclusion about the degree of risk (you) may pose to children".

In her evidence to us, Mrs. B told us that with hindsight she had heard some alarm bells ringing whilst living with the Appellant, and in particular she recorded an occasion when the Appellant was bathing with W, that she had come into the bathroom and noticed that the Appellant had an erection. When she challenged him about this, he had told her that she was mistaken and that his penis was just "bobbing around" and that she was being paranoid. It is accepted by the Appellant that he did bathe with W on a number of occasions and that he massaged S & W with oils on a number of occasions including occasions on which their mother was not in the house.

In November 1995 the Appellant started a relationship with a Mrs W. Mrs W had two children RW and NW. Social Services were concerned at this situation by reason of the conclusions which the Child Protection conference had arrived at and arrangements were made for Mrs W to be interviewed. Mrs W refused to accept that her children were at risk and did not believe the allegations against the Appellant. As a result, a Child Protection conference was organised and was held on 21 February 1996. In that conference it was agreed that both children should be placed on the Child Protection Register. Two senior Social Workers at the meeting asked for their dissent to that decision to be minuted, one of them, because he did not believe the Appellant had been guilty of sexually abusing W and S.

In October 1995 on the advice of their GP, S & W were referred to the sexually transmitted diseases unit at the Bristol Royal Infirmary for tests. These proved negative.

On 16 January 1996, the Appellant wrote to Social Services Department in Bath maintaining that he had been seriously maligned by S and W and his wife and that he had never been involved in any act of gross indecency or indecent assault on either W or S or any other child. He maintained that the allegations were a reaction of S and W's mother to their failing marriage and that she had schooled the children into lying to the investigators.

On 19 November 1996, the Appellant had asked the Social Services Department for access to their Child Protection file. On 19 February 1997 the Appellant visited the offices of the North Somerset Council and looked at the file and took photocopies of some of it. It is apparent from the correspondence at the time and from the evidence of Mr Richard Simpson before us, (Mr Simpson being the Team Manager of the Department at the time) that the Appellant was not given access to any information relating to the allegations or to information which would prove difficult for the source where the source was a member of the public. He was not given access to Child Protection Procedure documents. It is unclear to us on the evidence whether or not the letter from the Department of Health dated 14 October 1996 confirming that the Appellant's name had been placed on the Consultancy Service Index was in the file which was inspected at the time by the Appellant or whether he had a copy of it thereafter. On the same date, 14 October 1996, the Department had written to the Appellant informing him that his name had been placed on the Consultancy Service Index. That letter had not been received by the Appellant because he was not living at the address to which it was sent.

On 22 June 2000 the Department of Health wrote to the Appellant indicating that his name was on the Consultancy Service Index and the intention was to inform the Appellant that his name would be included in the list to be maintained under the Protection of Children Act. The letter sought any representations. The Appellant maintains that this letter was not received by him and indeed it is apparent from subsequent correspondence that the letter was returned "gone away" to the Department. On 22 November 2005 the Department of Education & Skills wrote to the Appellant informing him of the position and informing him of his right to appeal.

Both S & W, with the help of their mother and Social Services made claims to the Criminal Injury Compensation Scheme for compensation arising from the alleged abuse by the Appellant. Those claims were upheld and payments have been made to both children. SB maintained she knew nothing of the right to compensation until she was advised by Ms Brennan of her ability to recover this on behalf of the children

The written evidence of S composed by her before she read any of the papers before us, and before she had seen the video of her evidence, was entirely consistent with the account she gave on video evidence in 1995. She rejected any suggestion that the allegations had been false.

W has never read the papers in the case or seen the videos of his evidence to the Police Social Workers. His evidence to us was entirely consistent with the account he gave in 1995. He rejected any suggestion that the allegations had been false or had been made up by his mother.

Both children told us that the alleged abuse had had a significant effect in their lives, particularly during their teenage years when S had received counselling and W told us he had ongoing problems. W told us that he had clear recollections by way of mental images of some of the abuse which he suffered.

The Appellant, in his evidence, consistently denied all of the allegations of abuse. He considered himself to be a good father, both during his relationship with Mrs. B and in his longer relationship which was ongoing with KW. He said that he now accepted that the allegations made about S's natural father could have been true and if they were true it was right for them to have been pursued by SB.

The Appellant accepted that there was no evidence to support his original contention that those allegations made by Mrs. B against S's natural father had been made maliciously.

He said that when he had moved in with Mrs B and the family, he had found the children needy and vulnerable and that S in particular was given to displays of over affection. He said she also exhibited sexualised behaviour and language which had been remarked upon by members of his family and is referred to in the evidence of TC.

He accepted that the language used by S on her video interviews was entirely consistent with the language which she had used prior to the interviews within the family and was unable to evidence his allegation that her interview seemed to have been scripted by someone much older.

He maintained that the allegations were solely motivated by Mrs B wanting to find a reason to end their relationship which would be defensible to her family and that she could have planted the evidence in the children's mind in the available time.

Between the end of the second day of this appeal (17 October 2006) and its reconvening on 17 January 2007 further evidence came to light on which the Secretary of State relied. This evidence consisted of information received from the Avon and Somerset Constabulary records which were produced to us which showed that the Appellant had been arrested on 16 August 2004 following an allegation of assault on NW, then the sixteen year old daughter of KW, who was living with KW and the Appellant. NW had complained to the Police in August 2004 that the Appellant had on a number of occasions when waking her in bed, fondled her breasts. We saw the record of the complaint and the details of the interview with the Appellant who denied the allegations. The Police took no action. It was pointed out to us by the Secretary of State that neither the Appellant, nor KW, nor RW had mentioned this in their Statements.

Both the Appellant and KW maintained that the allegations were untrue and made to allow NW to leave home and access assisted housing. This view was supported by KW's daughter RW although she did not believe that its purpose was to access assisted housing.

The Appellant, KW and RW accepted they knew of the allegations when they made their written statements but considered they were not relevant to the issues the Tribunal had to decide.

We heard evidence from RW, the elder daughter of KW, as to how good a father the Appellant had been to her.

Submissions

Mr Auburn, on behalf of the Secretary of State, submitted that the task of the Tribunal was to decide which version of events was most likely to have happened. He said there were only two versions, either the version whereby the Appellant had abused S & W or the version that he had not abused them:-

• Because SB wanted to leave him on 8 August;

• She had set about compiling a complex case of sexual abuse and she had persuaded the two children that they had been abused when they had not been;

• All of this had occurred between 8 and 22 August 1995;

• That they learnt their lines perfectly so as to be interviewed twice by the Police and videoed;

• That Mrs. B and the children persisted in the allegations to the Police, Social Workers, friends, Counsellors and Doctors over a long period of time;

• Ensured that the two children believed that they had been the victims of sexual abuse when she knew they were not.

He submitted that such a scenario was not credible and that the evidence given both on video by the children and by them before us was "consistent and credible".

He submitted that in any event the explanation adopted by the Appellant had "developed" throughout the case and that it was now different from the original allegation set out in the Notice of Appeal.

Mr Currie, on behalf of the Appellant, reminded the Tribunal that this was a serious allegation and that we had to be satisfied to a high standard that the allegations were true. He submitted that there was serious doubt over the credibility of the witnesses and pointed to the way in which S had given her evidence on video; that different views were taken by different professionals immediately at the time, and similarly that there were difficulties with W's evidence. He pointed to the fact that a number of those involved at the time had identified that Mrs. B was "capable of manipulating the children". He pointed out that there was no corroborative evidence at all put forward and, for those reasons, he submitted that the Tribunal should not conclude that the case had been made out by the Secretary of State.

The Law

1. The appeal is brought under section 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."

2. 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 he is unsuitable to work with children. We were referred to the case of C v Secretary of State for Health (CA) and looked at the case of R (on the application of N) v Mental Health Review Tribunal (Northern Region) [2006] 4 All ER 194 where all the recent cases on the standard of proof were considered. In this case Richards LJ said "Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities." Therefore we are mindful that we must decide this on the civil standard but that given the seriousness of the allegations against the Appellant we must ensure that the evidence against the Appellant is strong.

3. As we have already recorded it is accepted by the Appellant that if we are satisfied that the Secretary of State has satisfied us that the Appellant had been "guilty of misconduct" then the Appellant accepts that he is "unsuitable to work with children."

Tribunal's conclusions with reasons

We carefully considered the written evidence submitted to the Tribunal in advance and the evidence given to us during the hearing of this appeal.

Our conclusions are:

A. In our judgement the evidence of S & W set out in the video recordings in 1995 was entirely credible and consistent. The honesty of the accounts which they gave in that video was accepted by both the Police and Social Workers who carried out the investigation into the alleged abuse as being true.

B. Whilst at the time it was suggested by certain members of Mrs. B's family that the allegations might have been made up by Mrs. B for the purpose of ending her relationship with the Appellant and that she had been capable of influencing the children to make them, we note from the written evidence and the evidence of Mrs. B before us that subsequently the views of her family changed. In any event as we will explain later in this Decision, we find such a view on the evidence that we have seen and heard to be unsustainable.

C. The evidence of S & W to us was entirely consistent with the evidence which they had given on video as children. It is clear to us that both children clearly believe that they were abused by the Appellant. It is material in our view that their Statements in writing prepared for this Tribunal were prepared before S had read the papers and seen the videos as was W's, who has never read the papers or seen the videos. We were particularly struck by the evidence of W of his ability to recollect by way of a mental image some of the abuse which he suffered. We noted that the Appellant in his evidence stated that he now accepted that both S and W believed he had abused them.

D. We have looked to see whether there is any evidence which would corroborate the evidence given by S & W of what occurred. In our judgement there is some corroborative evidence. First of all, the allegations in connection with the abuse of both children whilst in the Appellant's car are ones which are clearly founded in fact. All of the parties, including the Appellant, agree that the journeys took place and that they took place on a specific day. The allegation in respect of the assault in the car on S had stuck in her memory because it was day of the Bristol Balloon Festival.

E. Secondly the Appellant in his evidence described how, from the moment that they were married, SB had taken the opportunity of him being in the house to go out frequently in the evenings to carry out a variety of activities. This appears to us to add weight to the views expressed by S that the abuse that she suffered occurred in the evenings when she was going to bed, when her mother was out of the house. There was adequate opportunity for the alleged abuse to take place.

F. Thirdly it also appears to us that, as a Social Worker, the Appellant must have been aware of the boundaries which would be acceptable in a new family which he was entering. His admissions to the Police at the time and partly admitted in his own evidence to us of the use of massage oil and massaging the children, kissing S on the lips and touching of S's leg, knee or thigh in the car all appear to us, as it did to some of the Social Workers in the case at the time, to corroborate the allegations which were made against him. The Appellant does not deny either that the routine of putting the children to bed usually involved him sitting on or lying on the bed with them, and in W's case assisting him with his reading. The Appellant did not deny that he bathed with the children nor that this was observed on one occasion by Mrs. B who was distressed by what she saw or thought she saw in relation to his having an erection,

G. We have asked ourselves whether the Appellant's explanation is credible. Clearly at the time, a few people considered that it might be believable and even now KW and at least one of her daughters believe that his explanation is true. One social worker who was not directly involved in the case had that view. We are troubled in dealing with this question because, if it were true, we would have to accept that Mrs. B had maliciously and deliberately decided to plant in her children's mind the factual basis of the allegations; coach them in a very short period of time (in our view not more than a week between 13 and 20 August 1995) so that they could accurately recite the facts in lengthy video interviews; take both children to the sexually transmitted disease clinic in Bristol; put S into lengthy counselling; apply for criminal injuries compensation and continue to maintain that situation until the present time. She would have to do that in the hope that the children would consistently tell the same story and would not reach a time in their lives when they considered that they should tell the truth.

H. We find this explanation to be totally implausible. Neither are we persuaded that SB was motivated by a desire to obtain financial advantage for S and W by claims to the Criminal Injury compensation board. Neither do we find it significant that in June 1995 she requested the sight of S's previous file or that she inspected it shortly before the allegations of abuse came into the open. Whilst the questions raised by S and W at the time about whether the Appellant might lose his job might appear contrived we cannot say that this alone in any way supports the Appellant's case.

I. We have considered carefully the evidence of KW and RW and the other witnesses who gave evidence for the Appellant as to his character and that of Mrs. B. The evidence does not in our view support the contentions made by the Appellant.

J. We have considered the issue of the further allegation of sexual abuse against NW. Whilst we consider that the Appellant, KW or RW not openly telling us in their Statements before the matter was found out by the Respondent, committed an error of judgement, we have not taken it into account either in reaching a view as to the truthfulness of the Appellant nor in making a decision as to whether the allegations in respect of the abuse on S & W were true. Neither do we make any findings as to whether the allegation about NW was true or false.

K. On the basis that we have set out above, we prefer the evidence submitted on behalf of the Secretary of State and have no difficulty in concluding on the balance of probabilities that the allegations have been made out in respect of the abuse on S & W. We are satisfied that the evidence of the abuse was strong and the evidence for the alternative intrinsically weak. As a result the Appellant has been guilty of misconduct which actually caused serious harm to both S & W.

Order

That this appeal be dismissed. Our decision is unanimous.

We make a restricted Reporting Order under Regulation 18 (1). This Order prohibits 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 a non professional witness. This Order shall continue in force until further order of this Tribunal.

Tony Askham Chairman

Richard Beeden Lay Member

David Cook Lay Member

16 February 2007