ARR v Secretary of State for Education and Skills [2003] EWCST 0208(EA) (18 October 2004)

ARR

-v-

Secretary of State for Education and Skills

[2004] 0271.PC

BEFORE

Mr Laurence J Bennett (Chairman)
Ms Bridget Graham
Mr Ronald Radley

On
5th, 6th and 7th October 2004

At
Barrow-in-Furness County Court

Application

1.	Ms ARR, the Appellant appeals under Section 4(1)(a) of the Protection of Children Act 1999 (the Act) against the decision of the Secretary of State for Education & Skills under Section 1 of that Act to include her in the list of individuals who are considered unsuitable to work with children.

Representation

2.	At the hearing the Appellant was represented by Mr Ian Wise of Counsel instructed by Messrs Fanshaw Porter & Hazlehurst Solicitors, Birkenhead.  The Respondent was represented by Mr Roger Moffatt of Counsel instructed by the Department for Education and Skills.

Procedure

3.	Mr Moffatt stated that in the light of the Appellant's admissions (see below) he did not propose to call some witnesses for whom statements had been submitted namely Mr McCombe, Mr Carruthers, Ms Mellen and Ms Hopkins to present oral evidence.  He wished the Tribunal to take into account their statements.  	

4.	Counsel for both parties detailed the issues remaining in dispute.  They had agreed that the Appellant wished in accordance with usual civil procedure to open her case first.  We accepted that the hearing should continue as they had agreed save that Counsel for the Appellant would make the final closing submission.

Restricted Reporting Order

5.	On 19th April 2004 the President of the Tribunal made a restricted reporting order under Regulation 18 of the Protection and Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (The Regulations).  In the following terms:

	"Prohibiting 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 the Appellant or any child.  The Order is made with respect to the period up until the commencement of the hearing, and any extension of the Order will be a matter for the Tribunal hearing the appeal.  In accordance with this Order, the Appellant will be referred to as ARR."

6.	By order dated 3rd August 2004 the President varied that direction:  "So as to prohibit 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 Ms LH."  

7.	Following an application on behalf of the Appellant supported by the Respondent, we ordered in similar terms to those set out in 5. and 6, effective from the commencement of the hearing until 28 days after the sending of the decision to the parties, further varied so that the full terms of the Order applied to the naming of Ms AP.  We noted that both Ms LH and Ms AP are no longer children.  We announced that the Tribunal would revisit its Order at the end of the hearing to consider whether it should endure for any further fixed period or indefinitely.

8.	At the close of the hearing we revisited our Order under Regulation 18.  We found it appropriate to continue the Order without limitation in respect of Ms LH and Ms AP.  We did not find sufficient grounds to continue the Order beyond the existing period in relation to the Appellant.

9.	At the hearing Mr Wise applied on behalf of the Appellant under Regulation 19 to exclude members of the press and members of the public from the hearing.  We kept in mind Regulation 19(2) setting out the circumstances in which such direction may be necessary.  We concluded that the Order made under Regulation 18 gave sufficient and appropriate protection to the relevant individuals and refused the application.

Evidence and Witnesses

Preliminary

10.	On 22nd June 2004 the President considered a request for an Order which he recorded in the following terms: "The Applicant seeks an Order under Regulation 13 for the appointment of an expert with appropriate qualifications, namely a psychologist with experience of dealing with both adults and children, who could provide an expert opinion in relating to the issue of whether or not the Applicant is 'unsuitable to work with children.' "  The Order was refused for reasons stated in the President's decision.  

11.	On 3rd September 2004 following a further application on behalf of the Respondent, the President referred the matter of the exclusion of a statement by Dr Farrell and the exclusion of a supplementary statement by Mr Bill Kitson received out of time, notwithstanding the granting of extensions to the nominated Chairman for his consideration.

12.	We heard representations by Counsel for both parties at the commencement of the hearing.  The application regarding Dr Farrell's evidence and his appearance in person as a witness was withdrawn in the light of admissions referred to below.  We found in all the circumstances that Mr Kitson's evidence, submitted one day late, should be included.  We accepted that doubt had arisen about administrative arrangements for transmission and receipt of this statement from communication with the Tribunal Secretariat.  We concluded that under Regulation 14(3) it would not be unfair to include it.

The Law

13.	The Tribunal's procedure is governed by the Regulations.  

14.	The purpose of the listing scheme is to protect children from those who are employed to work with them and to maintain public confidence in the care provided to children.  Listing under the scheme involves a difficult balancing exercise between the safety of children and the rights of individuals to have their livelihoods and reputations safeguarded (see Lady Justice Hale in R v The Secretary of State for Health ex parte C (2000) EWCA 49).

15.	Under Section 1 of the Act the Secretary of State must 'keep a list of individuals who are considered unsuitable to work with children.  By Section 4(1) an individual who is included in the list may appeal to the Tribunal against the decision to include him in the list.

16.	By Section 4(3) if "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 and direct his removal from the list; otherwise it shall dismiss the appeal …"

17.	We consider that Section 4(3) relates to the present and the Appellant's current suitability at the date of the hearing is to be determined by the Tribunal.

Standard and burden of proof

18.	The effect of Section 4 of the Act is to place the burden of proof on the Secretary of State.  We kept in mind when considering the evidence that it was the Respondent who must discharge this burden.

19.	Mr Wise submitted that the standard of proof albeit a civil standard, should be at the highest end of that standard.  He also submitted that the Tribunal should be guided by recent Employment Appeal Tribunal cases suggesting in his words "Where the impact of the decision is so dramatic the burden of proof has to be to a very high standard approaching the criminal standard of proof."  

20.	Mr Moffatt submitted that the appropriate standard is "the ordinary civil standard of proof" and referred to the decision in C quoted above.  However, he said this should only apply to findings of fact.  He submitted that in the light of admissions (see below) the Tribunal had solely the duty to determine under Section 4(3)(b) of the Act whether the Appellant is "unsuitable to work with children" this will involve its judgment rather than determination of fact.

21.	We did not accept that we are required to determine issues to a criminal standard of proof and were persuaded that the standards referred to in C should apply. We were mindful that the Tribunal consisted of persons appointed because of their training, professional experience and familiarity with the likelihood or otherwise of incidents occurring forming the substance of this appeal.  We are entitled to analyse and draw inferences from the facts in the light of our expertise and form a view whether any particular version of events is more likely or not.  The seriousness of any allegation making the events described more improbable and therefore affecting the way in which the balance of probability would be satisfied on the evidence available.

Admissions

22.	At the opening of the Appellant's case, Counsel stated that she admitted that she was guilty of misconduct and did not deny that it harmed a child or placed a child at risk of harm.  There was no issue that the requirements of 4(3)(a) of the Act were satisfied.  The sole issue before the Tribunal was whether she is unsuitable to work with children at the date of the hearing.

Facts

23.	There was no dispute between the parties regarding the basic facts of the events admitted by the Appellant.

24.	Since around the age of sixteen the Appellant has been involved in community arts.  It is not clear whether she has formal artistic training but she has a track record of involvement in local community organisations providing experiences, mainly to children and young people in music, drama and circus skills.  In excess of thirty testimonials submitted on her behalf praise her "rare and inspirational skills both with individuals and groups within her field."  We were told that she has worked with "looked after children," school groups, community groups, both independently and working for charitable local authority and educational organisations.  It was stated that her main expertise is choral.

25.	Prior to February 2001 the Appellant undertook some work with individuals in the Practical Alternatives to Custody Scheme (PAC) operated by the Social Services Department in Carlisle.  The management of the scheme involved Mr Rob Cartner. 

26.	Mr Bill Kitson, Team Manager of Cumbria Adolescent Resource Team (South) known as CART located in Barrow-in-Furness stated that he became impressed with PAC and wished to replicate it for CART in the Barrow area.  His statement contains "I had a conversation with my colleague Alan Culley, the Manager of CART West and mentioned that, in order to meet the requirements of the new Children (Leaving Care) Act coming into force, I required sessional workers to whom I could disperse tasks.  Alan recommended Alison Rigg (Alison) as he had supervised her in her work with Practical Alternatives to Custody Ltd (PAC).  He provided me with a written recommendation as did Mr Rob Cartner of PAC."  In January 2001 he interviewed the Appellant and following a Police check she was engaged on a self-employed basis as a sessional worker for CART.

27.	A job profile and employee specification provided by Mr Kitson refers to support to foster carers, care and sessional care for children in their own home, support to young people in engaging them in positive activities, practical assistance to foster carers for a number of children.  He stated at the hearing she was engaged to "Advise, assist and befriend young people but not to have friendships."  It is common ground that she was expected to assist children and young people in a variety of day-to-day tasks including processing claims with agencies and the requirements of daily life so that theirs would be improved.  The Appellant stated that she understood the work would eventually involve her arts skills but until then was content to undertake the role offered. 

28.	Mr Kitson included in his statement of evidence "Her induction programme was based on a series of visits to the social work teams, provider teams such as family centres and family placement teams, as well as education welfare and voluntary organisations involved in support services to the CART team.  I escorted and introduced Alison in most of these visits and arranged for her to shadow CART team members.  Given the hours worked by Alison and her many other interests and work areas outside CART, it was impractical to offer her a full-time induction programme."  The Appellant stated that she could recall only two training sessions.  Child protection in July 2001 and National Assessment training in November 2001.  She commented that these did not seem particularly relevant to any of her job tasks.

29.	Mr Kitson stated that he was available to his team at all times, particularly by mobile telephone so that he could deal with emergencies.  He supervised his workers formally and informally and engendered "a proactive culture of learning" in the team.  He stated that he was conscious of lone working practices and procedures and the importance of working within boundaries and record keeping.  Copies of the records in relation to the persons involved in the events were supplied for the Tribunal.

30.	The Appellant considers that "She was told what to do in a very haphazard way" and that supervision took place only on limited occasions.  Sometimes other workers gave advice which contradicted Mr Kitson's suggestions.  She felt she was put in a position where she would have to learn from her mistakes.  She quoted that Mr Kitson had told her to be "A friend, advocate and ally" of service users and to "Stand side by side with them when facing the system."  She felt that she had to gain young people's confidence and appear as their friend.  She "had to get on their wavelength."

31.	After some work with other young people, CART assigned the Appellant to support service users Ms LH and Ms AP.  A letter dated 22nd October 2002 from Mr David Siddall, Acting Head of Children and Family Services with Cumbria County Council Social Services addressed to the Manger of the Protection of Children Act List stated "In March 2002, The Appellant admitted to her line manager that on four occasions she has smoked or shared cannabis with service users who were vulnerable young people.  She stated she had done this largely to enhance her relationships with young people.  She had intentionally sought to cover up her actions by asking the young people to keep a secret."  There is agreement that all instances took place in the period late January early February 2001.

Ms LH

32.	Counsel for the Respondent stated that it was accepted that Ms LH although vulnerable, was not a child at the time of events and the harm to her was not relied upon by the Secretary of State in establishing the case under the Act.

33.	The Appellant explained that at the end of a day during which she assisted Ms Hackett house hunting, she took her to see her own flat as an example of accommodation in the locality.  Whilst there, she picked up her tobacco which happened to be with her cannabis.  This was noticed by Ms LH, who smiled.  The Appellant stated that "I didn't know what to do, felt it would be insulting to deny it and asked Leanne, do you mind if I smoke?"  LH replied "No" and The Appellant rolled a joint and smoked it in her presence.  On a second occasion, within a fortnight after a "disheartening day" visiting various agencies, she returned to LH's flat.  The flat was bare; LH had no food, tobacco or basic necessities.  LH asked for a rollup.  The Appellant rolled two single skin joints which they smoked.  

AP

34.	After a call from AP's foster parents who had grounded her for the weekend for stealing cigarettes from home, the Appellant visited the foster home.  She said that she attempted to speak to AP in private but was constantly interrupted by other family members.  She knew there were concerns regarding AP’s previous family background, elements of which involved drugs.  She took her to her car so they could have an uninterrupted conversation.  Asha noticed a previously rolled cannabis joint on the dashboard.  The Appellant stated that it was obvious it was a joint because of its closed end and cardboard.  When she went for her tobacco, AP asked why she did not use "that one" pointing to the cannabis; they ended up sharing the joint in the car.  On another occasion, she went to the foster home to spend the day with Asha whilst the foster family were away.  AP suggested they smoked a joint, she said that she told her it was not a good idea but AP pointed to the settee which had a cannabis leaf-print throw.  She stated that she gained the impression that cannabis was frequent in the environment and ended up sharing a joint AP offered.  She said it would have been rude to refuse.

35.	The Appellant stated that "I also accept that I did say to both service users involved that we should keep the use of cannabis between ourselves.  I did this not to protect my own position, but in the knowledge that the use of cannabis is illegal."  The Appellant also said that she told them that if they stated she had smoked cannabis, she would deny it but this was meant as a joke.

36.	A short time after these events the Appellant attended a friend's houseparty. Whilst there she met Ms Sara Mellen.  Discussion took place about the work they did, joints were going round and conversation about cannabis ensued.  She said that Sara told her "Whatever you do, don't smoke with clients."  The Appellant admitted to her that it was too late, she had already done it.  Sara was concerned and told her it was wrong and advised her to inform Mr Kitson.  The Appellant stated that she resolved to do so.

37.	The Appellant stated that after some thought over the weekend after the party "Her morals kicked in." She decided it was wrong to put Ms LH and Ms AP in a compromising position and visited them to say her comments about denying it were not true and were a joke.  She said that they already knew this.  

38.	After around a fortnight, on 20th February 2002 the Appellant attended a supervision meting with Mr Kitson and explained what had happened.  Mr Kitson records the date of the supervision meeting as 5th March 2002.  She said at the hearing that she was scared and had not felt able to go earlier.

39.	On 9th April 2002 the matter was referred to a disciplinary panel comprising Mr Kitson, Ms Rogerson, Human Resources Consultant, the Appellant and her friend/adviser Ms Jo Stoney.  Mr Al Carruthers, Mr Kitson's Manager stated that following the meeting "I informed The Appellant that because of the serious concerns about her suitability to work with vulnerable service users, Cumbria County Council could not offer her further work in any capacity which related to vulnerable service users.

	"In my view, The Appellant's behaviour and judgement in this matter let down the trust placed in her and undermined the respect and the carefully managed role models that social services offer vulnerable young people.  I believe that part of the vulnerability of these young people are the burdens of baggage they carry from their earlier lives and I believe that The Appellant's conduct and attempts to get young people to collude with her should be construed as harmful to those young people.
	"I informed my line Manager, Mr David McCombe, during supervision of the outcome of the formal meeting and subsequently I was asked to give consideration as to whether The Appellant's actions merited the inclusion of her name on the POCA Register and I began to process the information accordingly."

40.	During the disciplinary meeting the Appellant told the Panel that she had had sufficient training.  She explained she did so because she was embarrassed to indicate the contrary because Mr Kitson was there.

41.	Mr Kitson said that the Appellant had crossed the appropriate boundaries and had become involved in friendship rather than the befriender expected for her work.  He accepted that after reflection and realisation of her mistakes she could change.

42.	Mr Siddall was at the time of the incidents Cumbria County Council's Acting Assistant Director of Children's Services; he has since retired.  He submitted a formal reference to the Secretary of State for the Appellant's inclusion on the POCA List.  His statement sets out his reasons "The Appellant's position in working with young people would inevitably have elements of role modelling.  This is inconsistent with her actions.  The department looks after young people who have experienced abuse over a number of years.  Often there has been little structure or boundaries in their lives.  To observe a member of staff working on behalf of the local authority committing an offence and encouraging them to commit an offence, must in my view be potentially harmful to them.
	"In relation to The Appellant's suitability to work with children, in my personal opinion, which is based upon my 25 years experience in social work, the critical issue is that The Appellant smoked cannabis in front of young people whom she was charged with assisting.  Had she smoked in private then I do not believe that Cumbria County Council Social Services would be especially concerned The Appellant may argue that her actions were an error of judgement for which she should not be unduly penalised by not being able to work with children in the future.  In my view, there is no question that her actions were not at the more serious end of matters which social services departments have to consider when managing personnel issues.  However, that does not mean that they were inconsequential.
	"Local authority social services have a duty to act as 'good parents'.  Employees clearly have a key role in enabling the authority to discharge that duty.  The public at large and many of the parents whose children the authority look after would not see the act of smoking cannabis in front of young people as acting as a 'good parent.'
	"The Appellant's actions were in my view not simply an error but a major misjudgement, which speaks to her ability to understand her responsibilities to the authority, young people, parents and foster carers.  Some people may argue that The Appellant's understanding could be enhanced by training.  My own view is that I would  expect anyone engaging on a social work career to have an existing level of understanding and quality of judgement by which they would know that The Appellant's actions would seen as unacceptable.  In addition to the act itself being unacceptable, it implies that The Appellant does not have an understanding of what the proper relationship should be between herself and the young people she is charged with assisting.  It is certainly not the authority's expectation that she should become part of a peer group with young people."  He repeated in oral evidence what he set out in his statement: "If The Appellant sought employment in a position I was responsible for, then, I would not employ her.  It is not that I think she presents a serious risk to children, but rather I think that her actions do not meet the expected standards, reflect extremely poor judgement, suggest inappropriate relationships with young people and expose the employer to the risk of serious criticism.  He said at the hearing that it may be possible that she could convince him otherwise but would have to show something "persuasive."

43.	The Appellant stated that it was her view that it was her job to become a friend to young persons with whom she became involved.  She felt in the particular circumstances at the time that she had to take split second decision and it appeared appropriate to gain the confidence of the young people that she place herself in this situation.  She had no intention of intimidating them or put them in a situation where they felt compromised by seeking to deny that they had shared cannabis with her.  She did not intend to exploit their vulnerabilities or reputation. She stated that she understands clearly that she has caused the service users harm particularly because of insights gained from counselling. 

44.	The Appellant described her experience of the consequences of being put on the POCA List. She has to consider on each occasion whether children are present and double check their ages. She is no longer self-sufficient and has to claim benefits because avenues of work are closed to her.  She has offers of employment but cannot take them because of her inclusion in the List.  She initially received NHS counselling but now attends private weekly counselling sessions aimed at helping her reduce dependence on substances including cannabis, tobacco and coffee.  These sessions continue and also address other issues in her life including relationships.  She said she has changed and has had a "massive learning experience."  She does not intend to seek work in fields such as CART but wants to continue to be able to work with children and young people in arts.  She stated that counselling has brought home that harm is caused to individuals who use cannabis by suppression of their feelings.  She also said that Leanne might have been at risk by her driving whilst using the drug.

45.	The Appellant supplied numerous testimonials to her good character, trustworthiness, honesty and exceptional gifts in teaching and enthusing children and young people in music and related activities.  Mr David Penn, retired Headteacher of Arts Management Consultant accredited by the Arts Council as a Safeguarding Advisor stated that the Appellant had been involved in schemes for his organisations and demonstrated exceptional talent.  She has undergone some training with his organisation.  He said that he would be happy to reemploy her on schemes involving children and young persons, including vulnerable children.  Schemes are structured and it is and is clear what is required of her.

46.	Mr Tim Fleming is an Artistic Director in a partnership relating to theatre and music specialising in large-scale community arts projects.  He has worked with the Appellant and considers she has considerable talent and is well suited for what she does.  He has designed a scheme around her and would not hesitate to offer her a job if she were able to work with children.

47.	Ms Jo Stoney, currently a Project Development Officer appointed by Cumbria Social Services and by qualification a State Registered Nurse said that she has known the Appellant for around three and a half years.  The Appellant is now a personal friend both to her and her three teenage children.  She baby-sits and has enthused them about music.  She said that she trusts the Appellant totally and what has happened has not affected that trust.  She stated that "Given clear initial guidelines, she is eminently suitable."  She gave details of her particularly gifted approach to involvement of young people in playing musical instruments.

48.	On 22nd January 2003 the Department of Health wrote to The Appellant informing her that she had been provisionally included on the POCA List.  On 14th November 2003 the Department of Education & Skills wrote informing her inclusion on the POCA List was confirmed.  On 11th February 2004, Notice of Appeal was given to the Tribunal by Solicitors acting on her behalf.

Submissions

For Respondent:

49.	Counsel submitted on behalf of the Respondent that when considering the Appellant's suitability to work with children, the nature of her misconduct and its indication of flawed judgment and lack of openness should be taken cumulatively.  He submitted:

•	The conduct amounted to a criminal offence; that is supply of a class B controlled drug, in one case to a fifteen year-old, in circumstances which have aggravating features.  The fifteen year-old was not even of age to smoke cigarettes.  She came from a background where there were issues in relation to drugs, was a vulnerable child and one event took place in her foster carer's home.
•	The Appellant is guilty of "Appalling lack of judgment on four separate occasions and had given no explanation save that she went beyond the boundaries and "overstepped the mark."    Her lack of judgment renders her unsuitable.  
•	Delay in informing her supervisor and initial response to the service users serving to make them complicit indicates a lack of openness and intention to exploit the vulnerabilities and character of at least one of the individuals.  
•	She disclosed the incidents only after her conversation with Sara Mellen when she thought she would be exposed.  Her explanation that she was scared is not the case; she was concerned for the consequences for herself above anyone else.  This is indicated by the lack of records on the individual's files. 

In summary, the evidence indicates that she put herself first, covered up the events, was guilty of a failure of judgment and showed a lack of honesty and trust which taken together demonstrated unsuitability.

50.	The Appellant was neither a counsellor nor social worker and was not expected to be an expert.  She had adequate training and supervision for her roles and had indicated such at the disciplinary hearing.  In any event she knew that what she did was wrong and training is not a relevant issue.

51.	There is insufficient evidence that despite the Appellant's realisation of the harm caused that she has changed.  At the time of the incidents she knew what she was doing was wrong but nevertheless did it.  Her understanding of the consequences is not deep.  The testimonials are of limited assistance as they were written in unknown circumstances and dealt in the main only with her skills in community arts. There is insufficient reason to say she would act differently.  Her current counselling appears targeted to her own use of cannabis and other substances and it is "early days."  Her evidence indicates that she is dependent upon her counsellor and the issues have not yet been resolved.  The Tribunal should consider what would happen for example, if a child was hurt during a circus skills class; would she exercise the same poor judgment and seek to cover up the incident?  If not on the POCA List she will be able to work in any field without an obligation to tell a potential employer what had happened.

For Appellant:

52.	Counsel submitted that we did not have to consider employment issues. In particular we did not have to consider whether Cumbria should have dismissed her.  The Act envisaged some distance between the primary consequences which would be considered by employers and the decision to include in the List.  The Secretary of State had not given sufficient reason for that decision nor justification beyond a reliance on Cumbria's evidence of the misconduct.  The Secretary of State has not discharged the burden of proof to show she is unsuitable, particularly to the high standard necessary where the individual consequences are so "dramatic."   

53.  	The evidence given on behalf of the Secretary of State related to events some two and a half years ago by persons poorly placed to comment on her current suitability.  People change and learn from their mistakes.  The evidence of Mr Kitson indicated that he accepts this, Mr Siddall likewise.  He referred to the latter's testimony that the misconduct was at the lower end of the scale of problems Social Services have to deal with.

54.	The Appellant had given evidence for some four hours and was convincing, honest and thoughtful.  She may have been foolish in the past when not equipped for what she was asked to do.  She became involved in work that was different from that which she expected.  She had no desire to be a social worker but wished ultimately to assist young people using her art skills.   

55.	The events took place within a short period during which the Appellant's conscience got the better of her and she discussed the issues with colleagues.  She did not collude to cover up and did not deny she had smoked cannabis with the individuals.  This is consistent with her thoughtful nature.  

56.	The current evidence is that as a result of counselling she has gained an insight into the use of substances and their effect on user's feelings. She would not put children at the risk of the harm that she accepts arises.  She has learnt from her experiences, particularly from her placement on the List and consequent prohibition on working with children. She was unequivocal that she would no longer act in the same way.

57.	Mr Penn, Mr Fleming and Ms Stoney praised her work, ability and talent and confirmed the employment opportunities they offered.  They mentioned her honesty and integrity, exceptional skills and value to the community, especially children, lost whilst on the List.   The evidence all pointed one way towards suitability.  The Secretary of State's evidence was not relevant to the question of suitability and did not assist.  Nevertheless, note should be taken of Mr Siddall's view that the conduct was at the lower end of the scale and any lack of judgment was some two and a half years ago.  The Appellant's alleged lack of openness is a matter of interpretation.  There were no attempts to cover up and when she realised she had done wrong, prompted by colleagues, she was open in admitting it.   It was "bizarre" to suggest that, based on what happened in 2002, that the Appellant might react adversely in say a circus skills course accident.

58.	Counsel made additional submissions relating to issues of proportionality, referring to the engagement of the Appellant's human rights in the listing process.  He suggested that an administrative decision in this context inevitably engages an element of discretion which has to be exercised proportionately.  Any decision would "impact upon her personal integrity and engage her human rights." He suggested that the balance between her conduct and the consequences of the decision to place her on the List effectively for ten years during which she would be unable to work with children, would create an enormous and disproportionate impact on her personal, professional and financial situation.

For Appellant:

59.	Mr Moffatt, who responded by agreement of Mr Wise and consent of the Tribunal again submitted that the standard of proof was an ordinary civil standard of proof and related to findings of fact, not to our judgment of suitability.  

60.	Mr Moffatt did not consider that the Act gave the Tribunal options for different outcomes beyond the decision to remove the Appellant from the List or not in accordance with the criteria set out.  There is no scope for a differently proportionate response nor would it be appropriate.

Further application

61.	Counsel for the Appellant made application for costs under Regulation 24.  He stated that the circumstances were somewhat unusual but his Client had been granted Legal Aid and a duty arose to seek to recover her costs.  He submitted that the Secretary of State had acted unreasonably in refusing to agree a joint expert's report which may, if allowed by the President have led to an early settlement of the issues without need to continue the Tribunal proceedings.  The proposal was pragmatic and in accordance with general Court practice.

62.	Mr Wise submitted that it was unreasonable for the Secretary of State to attend at the Tribunal hearing with witnesses to give evidence about events some two and a half years earlier.  He said that the Secretary of State had not reacted in a reasonable way.

63.	Counsel for the Respondent submitted that refusal to agree a single expert was reasonable and it could not be said that acting in accordance with the order of the President arising from consideration of a request for directions could amount to unreasonability.  The Tribunal proceedings should and have taken place; it is not appropriate for a party to suggest the appeal should be resolved by some form of alternative dispute resolution.

64.	Mr Moffatt submitted that it was not unreasonable for the Secretary of State to present evidence at a hearing.  The Respondent is entitled to attend and present evidence not only about the original circumstances but also to make submissions based on evidence arising from cross examination of the Appellant and her witnesses during the proceedings.  

65.	Neither party provided a schedule of costs.

Conclusions with reasons

Misconduct

66.	We note that the Appellant accepts that she has been guilty of misconduct which harmed a child or placed a child at risk of harm	. She has also admitted that she is guilty of misconduct relating to Ms LH who was aged seventeen at the time and beyond the age for consideration as a child under the Act.    

67.	We note The Appellant's description of her understanding of the harm she has caused.  She gave evidence of the harmful effects of cannabis use informed by its impact upon herself.  

68.	We conclude that she is aware she has overstepped the boundary in her relationships with LH and AP and despite the reasons she gave, she has acknowledged that it was not in their interests to share or use cannabis in their presence.  

69.	It was disputed whether the harm caused by the Appellant's actions extended to placing LH and AP in a compromising or uncomfortable position by telling them that she would deny anything they might say about the incident.  We do not accept the explanations given by the Appellant regarding the jovial nature of her original suggestions and consider she meant these words seriously to the point that she later felt it appropriate to make specific contact to explain her comments.  We conclude that she had sought at the time to cover her tracks on immediate realisation of wrong doing and that her concurrently stated intentions to undermine their integrity have caused an element of harm.  

70.	Counsel for the Respondent submitted that we should take into account "the aggravated circumstances" in which the events occurred.  We accept that each of the factors he mentioned were features of the circumstances; we would not have expected otherwise.  A worker engaged to do what the Appellant was would necessarily have come across children and young persons in difficult circumstances.  We do not consider these circumstances compound the misconduct but set it in context.

71.	Issue was raised whether lack of suitable training, supervision and advice regarding the boundaries which the Appellant should observe may have led to or ameliorate the gravity of the misconduct.  We do not accept this.  It is not reasonable to consider that sharing cannabis with a child could be other than inappropriate or that specific training is required to realise this.   Counsel mentioned that use of cannabis is subject to legal restriction, this restriction should be well within the general knowledge of those involved and particularly so to a user such as the Appellant.

72.	The Appellant told her supervisor of the incident.  It was suggested that she did so because she realised that the knowledge would have emerged in any event.  It is necessary that we reach a conclusion on this point as it indicates her further reaction to and responsibility shown following realisation of wrong, a factor we believe should be taken into account in determining her suitability.  She stated she was aware at the time that she was doing wrong.  We consider more than coincidence that her admission of the events took place after she had mentioned the fact to a worker within Social Services at a social event.  On balance of probabilities we conclude that she had then decided that the facts would emerge and this prompted her report.  There is some merit in that she realised this would be the case and pre-empted the inevitable discovery by disclosing to her supervisor what had happened in full detail that has not varied over time.  We accept that she gave an honest and frank account of the events which has remained consistent.

Suitability

73.	In considering the Appellant's unsuitability to work with children, we have borne in mind the nature of the misconduct, its severity and the harm caused.  Counsel for the Respondent submitted that we should do so; we agree.  We note that Mr Siddall indicated that in the context of Social Services it was one of the "lowest end of the scale" conduct problems Social Services encounter.  This accords with our own knowledge and experience.  

74.	We have considered the extent of harm caused to AP but no evidence was available beyond that which can be inferred from the circumstances.  Our knowledge and experience and the comments of the Appellant lead us to conclude that there was a risk of harm to Asha's physical, emotional and moral development.   

Previous complaints

75.	There was no evidence that the Appellant has been the subject of previous or other complaints of a similar nature or any other adverse conduct or behaviour officially recorded. To the contrary, the testimonials, although we do not know the circumstances in which they were written are consistent in indicating she is a highly motivated and well appreciated worker who has spent much time with children, both in group and individual situations. This was clear from the very praising remarks of Mr Penn, Mr Fleming and Ms Stoney.

Recognition

76.	We have no doubt that the Appellant recognises the gravity of the situation in which she placed herself and the young individuals.  She indicated that she understands that what she did is wrong.  Her own evidence is that she considered it wrong at the time the events occurred but nevertheless continued because of the surrounding circumstances.  We are satisfied she is aware that it is not in order for a person in such a position to be complicit in drug taking with persons with whom she has professional contact.

Acceptance

77.	We have reached a conclusion regarding the Appellant's recognition of misconduct and subsequent actions.  Whilst we believe her initial response was a reaction to the inevitability of the misconduct emerging, we accept that she has since that time faced up to and accepted the consequence of her actions and has not unreasonably sought to minimise their impact.

78.	We have to consider whether there is a continuing risk, whether the particular circumstances which gave rise to the risk are likely to be repeated with the same result and whether in all circumstances there is a risk posed by the Appellant to children.

Personal action

79.	Events took place around two and a half years ago.  The Appellant has undertaken both NHS and continuing private counselling.  She gave details of the methods used.  From this information we conclude it is neither complete nor has it yet achieved its purpose.  We cannot know whether it will successfully address her personal problems but are able to conclude that she has an understanding of the harm occasioned by substance misuse amply obvious to her from her own difficulties.

80.	We note that the Appellant is still a cannabis user and accept that she is sincere in her efforts to overcome what appears to us to be a dependence upon this and other substances.  She did not seek to deny the position.  We conclude that she is taking active steps to deal with her difficulties.	

Our conclusions are:

81.	We accept that the Appellant regrets the incidents took place and is contrite.  She does not seek to excuse them.  We accept that she is clear in her mind she would not repeat that behaviour and understands why not.	 We have to consider whether she may be drawn into circumstances in which it might recur.  We were impressed by her honesty in giving answers, appearing thoughtful and that her answers were credible.  We accept and were particularly impressed by comments she made about caution in accepting work to ensure that she does not breach the terms of her inclusion in the List.  This shows that she understands the seriousness of the restrictions upon her and the discrimination and discretion she has to observe in her continued activities.  

82.	The intention of the List is not to provide a punishment but is a precaution to protect children from harm.  We do not consider that the fact of smoking/sharing cannabis on the relevant occasions requires inclusion as a penalty, it is the indication given by that misconduct about the Appellant's suitability that we must consider.  It was submitted on behalf of the Secretary of State that the "appalling lack of judgment" would apply in other child-related circumstances.  We do not accept this in view of her own acknowledged frequent use of cannabis that clearly gave rise to a special particular factor in the circumstances surrounding what took place.  We do not believe this lack of judgment is generalised in that she is unable to resist inappropriate demands by children.  The evidence is to the contrary; she appears able to engage constructively with them to realise their potential, often where others have failed.  This indicates that what occurred was a lapse compounded by her own vulnerability.  Whilst the future cannot be certain, we consider that the risk of the Appellant encountering circumstances such that gave rise to the misconduct and the risk that she might not observe appropriate boundaries is so low, she cannot be considered unsuitable to work with children.

83.	We consider it unlikely the Appellant will place herself in unstructured and compromising circumstances now that she is aware of the consequences of such conduct and the impact it has upon her day-to-day life.  We further conclude that if she did find herself in similar circumstances, she is now fully aware of the boundaries she should observe and will not take part in similar misconduct or other forms of inappropriate activity with children.  We conclude that she no longer represents a risk to them.    

84.	We have no criticism of the disciplinary decisions taken by Cumbria Social Services both in relation to termination of the Appellant's contract or reference to the Secretary of State.  These Tribunal proceedings take place some two and half years later providing a perspective in which we are able to assess subsequent and changing circumstances.  	

85.	In the light of our conclusions, it has not been necessary to consider the question of proportionality, however, we do not agree that the Tribunal can take this into account in the way submitted by Mr Wise.  We are satisfied that the Act provisions themselves are a proportional response to the obvious need to protect the interests of children and that it is neither open to us nor desirable to depart from its requirements.    

Costs

86.	We do not consider that the Secretary of State has acted unreasonably in bringing or conducting the proceedings.  Misconduct falling within the ambit of Section 4.3(a) of the Act clearly occurred and has been admitted.  We do not find the decision to include the Appellant's name in the List and thereafter resist an appeal to remove it unreasonable.  We have reached a different conclusion but in doing so do not find that the circumstances are so overwhelming that the decision to include in the List or respond to these proceedings was inappropriate.

87.	We find no merit in the submission that the matter might have been settled by an expert opinion.  As Counsel submitted, the appointment of an expert was refused by the President.  We do not find that the Respondent has acted unreasonably by compliance with such direction. 

Restricted reporting order

88.	We do not consider it appropriate that either LH’s or AP’s identity should become known and continue the restricted reporting order indefinitely but otherwise in its existing terms in their regard.  We do not find that the Appellant's own interests outweigh the right of the public to receive information and order that at the expiration of the period mentioned in paragraph 7. The order shall not apply to the Appellant.

Order

89.	By unanimous decision of the Tribunal, we allow the appeal.

90.	The Appellant's name shall be removed from the List kept under Section 1 of the Protection of Children Act 1999.

Date:	19 October 2004

Signed:  

Mr L J Bennett (Chairman)
Ms B Graham
Mr R Radley