First-tier Tribunal (Health Education and Social Care Chamber)

In the First-tier Tribunal

Health Education and Social Care Chamber

Before:

Judge John Aitken

Deputy Chamber President

Ms Linda Redford (Specialist member)

Ms Susan Howell (Specialist member)

Between:

EH

Appellant

V

Secretary of State for Education

Respondent

[2011] 1807.PC

DECISION

1.     Having been referred to the Secretary of State by Plymouth Council the appellant was provisionally listed upon the Protection of Children Act (PoCA) list and the Protection of Vulnerable Adults list (PoVA) in June 2004. Representations were made to the appellant’s solicitors and considered by the Secretary of State who confirmed that appellant on both lists on 4^th January 2005. Those decisions were not appealed.

2.     On 10^th June 2009 the appellant wrote to the Secretary of State formally seeking a review of the decision to place her on the PoCA and PoVA lists on the basis that she had obtained new information and evidence, the Secretary of State agreed to carry out a review. On 7^th October 2009 the Secretary of State informed the appellant that having reconsidered her case he had decide that she should remain on both lists.

3.     There has been a considerable delay whilst the Upper Tribunal established that there was a right to appeal to this Tribunal against that decision. That appeal was received on 15^th April 2011.

4.     Section 4 of the Protection of Children Act 1999 sets out that to place the appellant upon the relevant lists it is for the Secretary of State to demonstrate that the appellant is guilty of misconduct (whether or not in the course of her duties) which has placed a child at risk, and further that she is unsuitable to work with children.

5.     The appellant qualified as a social worker in 1989 and worked as an Approved Social Worker with one County Council and later in adult Mental Health with a second Council.  She met her husband in 1992 they married in 1994. EH was aware that he had committed very serious offences before he met her before us she explained that she considered him fragile and that her relationship with him was in part his social worker.

6.     In June 2002 EH’s husband indecently assaulted a six year old child, one of two children that the couple were babysitting. This was not a regular event and was done only because there was an important meeting for the parents. EH had no knowledge of the assault having retired to bed leaving her husband with unsupervised access to the children. The assault itself only came to light because of a confession by her husband to members of his church. 

7.     At the time of that assault EH told us she was aware of some of her husband’s past, in particular she was aware that he was convicted of assault with intent to rob whilst in possession of a firearm as a juvenile, rape in 1982, a relationship with his ex partner which was “tempestuous” and involved the Police being called in the 1980’s. She knew that in 1990 her husband had been convicted of indecent assault upon a 17 year old young woman.

8.     In 1999 there was an allegation that her husband had massaged his daughter in a way which made her feel uncomfortable and she had not reported this, considering that it was untrue or at least innocent and made by her husbands ex partner whom she considered unreliable. She had asked her husband about this when it was reported but when he denied it, accepted his explanation that his daughter had a headache after a long cycle ride and he had just massaged her temples, then her neck, then her shoulders then the backs of her legs, he denied any sexual element or thoughts.

9.     We have heard no live witnesses from the Secretary of State and for that reason we have relied upon the documentation where it is not in dispute, and considered also the evidence as supplied by the appellant generally, hearing from her and a witness called by her TB.  TB knew the appellant and her husband, was the Bishop of her church and to whom the appellant’s husband confessed the sexual assault. There is in truth almost nothing of relevance in dispute between the parties. The appellant disputes much of what her former employers have said about her and the findings of their disciplinary committees however they are not central to this decision, for we are not here to simply adopt the views of her former employers as to whether she behaved inappropriately, rather on the facts as agreed and evidence from the appellant and her witness we make our own decision.

10. The appellant makes it plain that she considers her decisions relating to her husbands daughter in 1999 and leaving her husband alone with young children in 2002 were reasonable in the light of what she knew at that time. His convictions were old, she knew him well and his convictions did not relate to children.

11. We do not accept that her decisions in those matters were reasonable. TB describes her decision to leave her husband alone with children as “naive and stupid”, had he known as much as the appellant he would not have allowed her husband to supervise children. We consider that any reasonable person would simply not have taken the risk of leaving him alone with children. His offences were very serious, they were over a prolonged period (January 1982 to November 1990), and although they did not concern children at that time, no reasonable person would have considered her husband as an appropriate babysitter or someone to leave unsupervised with children. That they would have been right in retrospect is not the issue, we consider that any reasonable person looking at the situation would simply never have left the appellant’s husband alone with children.

12. To that extent we disagree with TB’s assessment that Police and other training had led him to see that EH’s husband would be a risk with the information that EH had, we consider it much more obvious than that, and that it was a situation which would have been clear to any reasonable adult.

13. The appellant’s particular problem now is that she purports not to understand that position. She is a decent woman, and there is no question that she feels terribly betrayed by her husband and certainly did not think that the assault would happen. However she was not merely a member of the public making a “naive and stupid” mistake as it has been described. She is an experienced social worker, who will be called upon to assess risk as part of her profession. Her judgement was very badly impaired, probably by her relationship with her husband and her desire to believe that he, with her assistance had effected complete change, and her own feelings of guilt in the aftermath appear to act to prevent her acknowledging the true position. That is was a mistake to consider him safe to be alone with children. We can have no confidence at present, that faced with a similar situation, she would behave appropriately, that is by objectively assessing risk rather than placing her own subjective or intuitive views first.

14. That is not to say she would ever leave her husband alone with children, she makes that plain, but failing to acknowledge the risk that he posed on an objective basis and suggesting that no one would have foreseen it as she claims is unrealistic and is not a suitable base from which to make decisions about risks to children in the future. Such assessments may occur in any situation they are not restricted to those who work directly with children, until the appellant understands this she represents a risk to children, albeit of course indirectly.

15. Nor do we consider that she acted adequately to safeguard the appellant’s daughter in 1999 when she was told by her husband that it was alleged that he had made her feel uncomfortable with a massage, his assurances that there was nothing sexual in this should not have acted in any way to reassure a professional social worker. We understand there was a complex broken relationship and ex partner in the background.  The appellant, in simply accepting that explanation and  deciding at that point that it was his ex partner causing trouble and that there was no need to inform anyone demonstrated an error of judgement and this remains her position as she was to tell us, did not display any objective reasoning. It is no answer to this allegation that her husband was cleared, just as it is not the issue in the later allegation that the child was assaulted, it is her behaviour when any reasonable person would see risk and she did not which is the difficulty.

16. In this context she relies upon her husband being cleared in 1999 of any wrongdoing and others such as the family court allowing his access to his children to continue, that may have been the correct decision on an objective basis when it was made, however it is the appellant’s failure to consider the risk which is the point, the decisions made by others after the allegation in 1999, followed an appropriate investigation. The appellant felt such an investigation was unnecessary.

17. We have not relied upon the decisions made by the appellant’s employers, she and TB have criticised them and those involved, we are not in a position to comment not having heard both sides. Looking at all of the circumstances we find that the appellant did place a child at unnecessary risk, and did fail to protect that child, and that this behaviour does amount to misconduct. We further consider that having failed to acknowledge the error she made the appellant is not in a position to objectively or properly consider risk to children, and in that way is unsuitable to work with children and vulnerable adults.

Decision

Appeal dismissed

Judge John Aitken

Deputy Chamber President

Health Education and Social Care Chamber

6 December 2011