England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Leeds Combined Court The Courthouse 1 Oxford Row Leeds LS1 3BG
		10th May 2010

His Honour Judge Grenfell:

1. Mrs Martina Kirk is a social worker employed by Action for Children, an independent charity operating in the field of child protection. Between March and the end of September 2009 she worked on an agency placement with Redcar and Cleveland Borough Council ("RCBC"). In August and September 2009 Middlesbrough Borough Council ("MBC") received a child protection complaint from Mrs Kirk's former partner, a Mr Betiku. This triggered a child protection investigation as a result of which certain information was passed to RCBC and Action for Children. As a further result, RCBC terminated her agency placement with them and Action for Children have instituted disciplinary proceedings based on her alleged failure to inform them of the investigation.
2. Mrs Kirk has current judicial review proceedings against MBC and RCBC alleging that their decisions to pass on that information were unlawful. On the 12^th April 2010 His Honour Judge Kaye QC refused permission following which Mrs Kirk has applied to renew her application. Among the bases for his refusal was that the information had already been passed on and shared; that the orders sought could not undo this situation; that, in respect of the termination of her employment with RCBC and the possible further dissemination of the information, those were not matters of public law.
3. In the meantime, Action for Children had set a date for the disciplinary hearing. There were problems concerning Mrs Kirk's fitness to attend such a hearing, but eventually it was fixed for this Friday, 7^th May. Mrs Kirk then applied for an injunction against Action for Children to restrain them from proceeding with the hearing until the judicial review proceedings were concluded. As a result, the hearing of the injunction was listed before me on the direction of Keith J as a matter of urgency before the renewed application could be listed. In the event it transpired late in the hearing before me that the disciplinary hearing has once again been postponed to the 17^th May.
4. The brief and relevant history is that following the breakdown of her marriage to Mr Kirk, Mrs Kirk alleged that he had sexually abused their son. This allegation was investigated by Hartlepool Social Services and found to have no substance. In due course she bore a daughter to a Mr Betiku. This was in 1998, the same year that they separated. In 2009 it came to Mr Betiku's notice that Mr Kirk was regularly visiting Mrs Kirk at her house at times when his daughter was present. Hence his complaint. It is said that also there remains an unresolved property dispute between them. In the course of the investigation Mrs Kirk made it clear that she still maintained the truth of what she had alleged against Mr Kirk. It was in these circumstances that MBC passed on to RCBC and Action for Children information to the effect that Mrs Kirk was allowing a man whom she had previously accused of sexual abuse back into her house and that this potentially placed her daughter at risk.
5. Mr Gilbert, counsel for the claimant, in his skeleton argument sought to enlarge the interim relief sought to cover an order that 'Action for Children shall not repeat any information received concerning the Applicant without her consent or order of the Court until determination of the judicial review proceedings.' No serious objection has been taken to that addition, should it become appropriate.
6. In addition, Mrs Kirk seeks a declaration that she may be permitted legal representation at her disciplinary hearing, which presupposes that the policy of Action for Children, contained in their 'Action for Children Code of Conduct', is susceptible to judicial review.
7. Keith J in issuing his directions summarised the essential issues as being whether Action for Children are susceptible to judicial review, even if fresh proceedings had been brought against them for the purpose of seeking interim relief; whether the decision to proceed with the disciplinary hearing before the judicial review proceedings were concluded was a public law decision. He made it clear that notwithstanding his concern that fresh proceedings might have been appropriate against Action for Children, it was right that nonetheless there should be an oral hearing of the application for interim relief. I approach the matter on that basis.
8. Mr Gilbert submits that Action for Children, as a substantial charity largely operating in the public sphere within the statutory framework for the protection of children, can properly be regarded as susceptible to public law in respect of its decisions and policy. He submits that the effect of the decisions complained of is likely to render Mrs Kirk unemployable as a social worker; that, if Action for Children's disciplinary hearing goes against her, there is likely to be a similar effect, particularly if they choose to terminate her employment as a result.
9. Mr Nicholls, counsel for Action for Children, and Mr Fullwood, counsel for RCBC, adopt a common stance that the issue whether the disciplinary hearing should go ahead is a matter of private law, that in any event Action for Children is not susceptible to public law, particularly in matters involving the terms of Mrs Kirk's employment; that the disciplinary hearing is concerned only with the discrete issue relating to failure to inform Action for Children about the investigation; that, in the circumstances, Action for Children are entitled to exclude legal representation from such a disciplinary hearing.
10. In addition, Mr Fullwood sought to argue that the main judicial review proceedings should be determined summarily at this hearing, because they were doomed to failure and would only lead to more and unnecessary cost and use of resource. In view of the fact that Mr Gilbert had received no prior notice of this argument, I was not prepared to entertain it. It is a pity, however, that the Court had not been told earlier of the new date for the disciplinary hearing, because otherwise it might have been possible to have listed the renewed application for permission at the same time.
11. For the sake of completeness, I should add that the second interested party, the General Social Care Council, is also to consider Mrs Kirk's case, but that they have agreed to defer that until the outcome of the judicial review proceedings is known.
12. Mr Gilbert relies, in particular, on two authorities which support the need for legal representation, under Article 6 European Convention on Human Rights, where a right to employment is likely to be affected.
13. R (Wright) v Secretary of State for Health [2009] 1 AC 739 concerned a barred list system by which care workers might be placed on a list of people considered unsuitable to work with vulnerable adults. Plainly, as Baroness Hale stated in paragraph 4 of her opinion,

"The effect of listing is to deprive the care worker of her employment as a care worker and to prevent her from getting any other such employment."

14. The House held that because the list inevitably influenced the further process and necessarily affected an Article 6 civil right, there should be a proper judicial hearing, which in the circumstances should afford the person an opportunity to make representations before provisional listing.
15. In R (G) v X School Governors [2010] EWCA Civ 1, [2010] HRLR 13, a teacher who faced allegations of sexual impropriety with a pupil successfully challenged the governors' decisions not to allow him legal representation at the disciplinary hearing: the Court of Appeal upheld the Administrative Court's grant of his application for judicial review. The result of the disciplinary hearing had been that his name was entered on a barred list, which inevitably affected his employability as a teacher.
16. The headnote accurately summarises the Court's reasons:

"(1) where an individual was subject to two or more sets of proceedings and a civil right or obligation enjoyed or owed by him was to be determined in one of them, he may, by force of art.6, enjoy appropriate procedural rights in relation to any of the others if the outcome of that other would have a substantial influence or effect on the determination of the civil right or obligation;

"(2) where there was a finding of abuse of trust by virtue of sexual misconduct, it would have a profound influence on the decision-making procedures relating to the barred list. The governors' conclusion comprised both a finding of fact and a judgment as to where the facts lay on the scale of severity. The ISA may bring an independent mind to bear but it did not operate a procedure for oral hearings with cross-examination. The disciplinary proceedings were a determinant of the claimant's right to practise his profession and art.6 was engaged;

"(3) art.6 did not necessarily entail a right of representation. The level of procedural protection depended upon what was at stake. Here art.6 required that the claimant should have been afforded the opportunity to arrange for legal representation in those proceedings should he so choose."

17. It was the potential for the result of a first disciplinary hearing to influence a subsequent statutory decision whether a person's employability in his or her profession would be adversely affected, which drove the need for appropriate representation.
18. The statutory regime which regulates the ability of persons to work with children is the Safeguarding Vulnerable Groups Act 2006 ("SVGA"). This Act sets up the Independent Safeguarding Authority ("ISA"). Action for Children must pass on information to the ISA, if they suspend her from her child related duties for the reasons that they think Mrs Kirk has engaged in conduct which endangers a child or is likely to endanger a child, that is to say conduct which puts a child at risk of harm. (Section 35 SVGA). Then the ISA must include the person in the children's barred list, if it is satisfied that Mrs Kirk has engaged in such conduct, and it appears to the ISA that it is appropriate to include her in the list. (Schedule 3 paragraph 3(3)).
19. Schedule 4 paragraph 2 sets out the activities which are covered. They do not cover the domestic situation, but are concerned with the activities of Mrs Kirk in the work she does for Action for Children. In any event, the proposed disciplinary hearing is not concerned to determine whether Mrs Kirk has put her own child at risk, so that the provisions of the SVGA do not begin to operate. The process before the General Social Care Council might do so. That could well be why the Council has decided to await the outcome of the judicial review proceedings.
20. In my judgment, this application can be determined quite shortly. I accept Mr Nicholls' submissions that this is essentially a private law employment case with a stand alone disciplinary issue whether she breached the terms of her employment in failing to inform her employer of the investigation. The question of this hearing being some kind of preliminary to the placing of Mrs Kirk's name on a barring list, such as would be influenced by the decision of this disciplinary hearing, in my view, does not arise. It will simply resolve that one stand alone issue. In my view, it comes nowhere near the scale of severity that drove the Wright and X School cases. Further, it cannot be said, and has not been submitted, that Action for Children's decision will influence any decision of the General Social Care Council.
21. Mr Nicholls makes the valid point that it would be wrong to keep Mrs Kirk suspended until conclusion of judicial review in respect of the stand alone allegation that she faces; that there is little point in delaying disciplinary proceedings any further. I agree. That highlights the stand alone nature of the disciplinary hearing that Action for Children proposes to hold. For the reasons I have given, the proposed disciplinary hearing is not such as to engage Article 6 so as to require legal representation.
22. I am satisfied, that Action for Children, in seeking to exercise its disciplinary powers in relation to the failure to inform them of the investigation, is not carrying out a public law function, but rather a private law employment function. As a result, the Administrative Court cannot provide the remedies sought by Mrs Kirk.
23. For all these reasons, the application for an injunction against Action for Children has no foundation and must be dismissed.
24. Any consequential orders can be the subject of a short telephone hearing or written submissions, unless otherwise agreed.