MD v Secretary Of State For Education And Skills [2004] EWCST 0345(PC) (15 December 2004)

Ms MD 

-v-

The Secretary of State for Education and Skills

[2004] 0345.PC
Miss Helen Clarke (Chairman) 
Mrs Marilyn Martin
Mr Ray Winn

The Appeal was heard on December 1st 2004 at Bristol

1.	This is an Appeal under Section 4 (3) of The Protection of Children Act 1999 (POCA 1999) by Ms MD  (the Appellant) against a decision dated 23rd January 2002 by The Secretary of State for Education and Skills (the Respondent) to include the Appellant in the list kept under Section 1 of POCA 1999 (the list).

2.	At the hearing the Appellant appeared in person. The Respondent was represented by Mr Jonathan Moffatt of Counsel instructed by Ms Caroline Ricketts, solicitor.

3.	An order was made at the commencement of the proceedings under Regulation 18 of the Protection of Children and Vulnerable Adults in Care Standards Tribunal Regulations 2002 (the Regulations) restricting the reporting of proceedings.   The restrictive reporting 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 to members of the public being able to identify the Appellant or any child or other relative referred to in this decision.  We believe that the restriction on reporting should continue and therefore the names of the parties are referred to in this decision by initials only. Under Regulation 27(3) the decision will be published with the Appellant’s name reduced to her initials.

4.	The Appellant had been a registered child minder since 1984 and initially cared for children in her own home during the daytime and then was subsequently asked by Birmingham Social Services (Social Services) to join the Neighbourhood Care Scheme operating in the Birmingham area which involved children staying overnight at the Appellant’s home mainly at weekends.   

The Appellant had a daughter (AD) born in August 1974.   In 1980 the Appellant married JD and subsequently a son (SD) was born.

5.	In August 1993 AD had a daughter (HD).In April 1994 during a conversation about child minding arrangements for HD, AD revealed to the Appellant that she had been abused by her stepfather JD as a child.   AD specifically stated that her daughter should not be left alone with JD at any time.   

Following this disclosure there was a family  meeting at  the home of a close  family friend ( the family meeting)  attended by  the Appellant JD AD and the family friend, during which  JD admitted inappropriate behaviour towards AD but claimed  that  it was an isolated  incident. The Appellant forgave JD and did not report the matter to Social Services.

6.	In 1998, four years later , whilst in the care of Appellant , HD was left unattended for a short period of time and an incident occurred involving JD, which  caused HD both to cry  out and to seek out the Appellant who  described in her witness statement ( the Tribunal bundle page 24 ) “ Suddenly heard her shouting “Stop it granddad she then came upstairs with a look of fear on her face “   The Appellant immediately realised that HD had been harmed and confronted JD but again did not report the incident to Social Services.

In June 1999 the Appellant disclosed to a Relate Counsellor the details of the incidents in 1994 and 1998 and subsequently reported the events to Social Services.

7.	The police investigated the allegations and JD was convicted of indecent assault on a female and sentenced to four years imprisonment which was later reduced to 12 months on Appeal.    

Following the disclosure of the abuse to Social Services the Appellant agreed to the voluntary suspension of her registration as a child minder and this was subsequently formalised in October 2000 by notification.   
Social Services then wrote to the Respondent and requested that the Appellant’s name be added to the list.

Evidence Heard 

8.	Detective Constable Jonathan Ashman 7608 (DC Ashman) of the West Midlands Police gave evidence to the Tribunal  and  confirmed that he was working between 1996 - 2004 on the Child Protection Unit at Kings Norton, Birmingham.    DC Ashman interviewed the Appellant on 11th June 1999 about the allegations of sexual abuse that had been made against JD.   DC Ashman stated that during the interview the Appellant had confirmed that JD had admitted during the family meeting that JD had performed oral sex on AD.   DC Ashman stated that the information provided to the Child Protection Meeting he attended on 21st June 1999 was gathered during the investigation which resulted in the criminal prosecution of JD.

DC Ashman confirmed that the Appellant had co-operated fully with the Police and had given evidence against JD at his trial.

9.	DC Ashman stated that during a formal police interview the Appellant’s claim that JD had admitted to the sexual assault during the family meeting was put to JD but he denied the allegation but he had admitted acting inappropriately towards AD.

10.	Ms Gillian Sebright gave evidence about the procedures and information and training provided by Birmingham Social Services to child minders.   Her role as the principal officer of Organised and Institutional Abuse within the Social Services Department is independent of the direct Social Services delivery.   Ms Sebright chaired the Child Protection Meeting on 21st June 1999, which was called following receipt of a telephone call from the Appellant informing Social Services of the incidents of abuse by JD. Ms Sebright considered that the training and information which child minders and care workers would have received meant that all child minders and persons working with children should have been aware of their responsibilities in protecting the interests of all children in their care. Ms Sebright when asked said that she was confident that the training the Appellant received would mean that the Appellant should have been aware of the need to report any allegations of abuse to Social Services.

11.	Ms Sebright explained to the Tribunal that the Neighbourhood Care Scheme was a more demanding role and included occasions for 24 hour care. When a  childminder  changed  their category of care ( such as entry on  to Neighbourhood Care  Scheme) there would have been a review of the childminder  to ascertain that  they  would be able to manage their greater responsibilities. Regrettably we are unable to verify this through any  documentation as apparently the file was lost when the  regulatory  responsibility  passed from the local authority to Ofsted and is not locatable ( see Ofsted letter dated October 1st 2004  Tribunal bundle page 90a).    Ms Sebright was asked about the notes of the Child Protection Meeting on June 21st1999 (specifically Tribunal bundle pages 58, 58(a) 59) and in particular the reference to a comment made by Mr Paul Nash (a duty Social Worker) where he reported that the Appellant had not intended to disclose details of the sexual abuse to the Relate Counsellor but had stated “they are very good, these counsellors. I did not mean to say this.”  Ms Sebright confirmed that the reference was in quotation marks because she had specifically made a note of the exact words used by Mr Nash as she considered the comment extremely significant.

Appellant’s Evidence

12.	The Appellant  made a  brief statement  in which she reiterated that until recently she had not know the full facts about what had happened to AD and  that she had only found out what was going on when the Police had come to interview her as part  of their investigation.   The Appellant did not report the original incident with AD because AD did not want her to do anything and the Appellant had wanted to protect AD, although she admitted that with hindsight she should have done something.   “I was just stupid, naive. I made a big mistake.”     

 “Had I known earlier what my daughter had been going through as a child, things would have been different but nobody ever told me.”

13.	Under cross examination by Mr Moffatt the Appellant continued to deny that AD had disclosed any details to her in 1994 but she also confirmed that she had realised that it was something sexual.   “I did think that it was sexual abuse.”

14.	The Appellant admitted that she had not asked JD the details of what had been done to AD. Although the Appellant could not remember saying to DC Ashman that JD had performed oral sex on AD, neither did she deny it.    “I don’t deny the claim.  I just don’t remember.”

15.	The  Appellant  did confirm that she had told DC Ashman that she thought JD was attracted to AD; she also  stated that AD at the family meeting had told  the Appellant  that she did not want her  to do anything about the disclosure.   The Appellant did not at this point consider that the information that had been disclosed was relevant to her child minding activities.    “No it was a family thing”.  The Appellant regarded the child minding as a job with which JD had no involvement.   She was also keen to save her marriage.   “I wanted to try and save the marriage, I did still love him”. 

	 The Appellant  stated that in 1998 when the  incident  involving HD had occurred  she had been  very angry and that she had immediately believed something had been done to HD by JD.   The Appellant  acknowledged that by the time she saw the Relate Councillor in May 1999 she knew that things were not right.   She was “aware that things weren’t right, that he (JD) had done things to my daughter”.

16.	Mr Moffatt asked whether if the Appellant had not gone to the Relate Counsellor she would have reported the abuse to Social Services.  The Appellant  replied frankly “probably not”.

The Appellant  confirmed that she had received training (evening sessions) when she joined the Neighbourhood Care Scheme. She  also  stated  that she had  never received any complaints about the home . The Appellant confirmed   that she had reported to Social Services a slap mark that she had seen on the face of one of the children arriving for her care.

17.	During questions from the Tribunal about her child-minding the Appellant  indicated that she did not intend to  return to  child minding.   Her reason for bringing the Appeal was personal as she felt that that if she was removed from the list she would feel better about herself especially when she was looking after HD.

Submission

18.	The Tribunal received a submission from Mr Moffatt as to the law that should be applied.  Mr Moffatt specifically drew to the Tribunal’s attention the recent decision of the Tribunal in Angella Mairs -v- The Secretary of State for Education and Skills 2004 269PC( the Mairs  decision)

19 	Mr Moffatt referred the Tribunal to paragraph 109 of the Mairs decision  which sets out in some detail  consideration of the concept of misconduct.   Mr Moffatt submitted that there could be a finding of misconduct by an omission to do something as well as by a deliberate act .

Mr Moffatt stated that the Respondent had never suggested that the Appellant was in any way involved in any of the abuse carried out by JD.  However the Respondent submitted that the Appellant  had been entrusted with the care of the children and that the parents and Social Services needed to be confident that the children were safe and protected from  harm or the risk of harm.   Mr Moffatt submitted that the Appellant  did know that  AD  had been sexually abused by JD and that he had assaulted HD,therefore the Appellant  must have known of the potential risk of harm  to the other children in her care.   Mr Moffatt submitted that the Appellant had acknowledged  during the course of her evidence that it was an issue at the back of her mind but that she had tried to compartmentalise it and  had tried to forget about it.

It was submitted  that  the Appellant by   continuing  to look after children after the second incident involving HD and not reporting the matter  to Social Services  demonstrated  a   fundamental betrayal of the  trust that the Social Services and  the parents had placed in her  .

 It was submitted that by failing to report the incident there was a continued risk of harm to the  children, because the children were in contact with JD in the evenings and at weekends under the Neighbourhood Care Scheme.   Actual harm had also occurred as a result of the Appellant’s failure to report the original incident in 1994, as if action had been taken at that time HD might have been protected against the subsequent abuse. 

Turning to the question of suitability it was submitted that the failure to report the incident demonstrated a breach of trust and a gross lack of judgment and that this in itself meant that the Appellant  was not suitable to work with children.   It was submitted that the Appellant  had failed to recognise the true position and had continued to believe herself a victim and to have been  unfairly tainted because of JD’s actions.   This lack of insight into her responsibilities and failings  meant that she continued to be unsuitable to care for children.

The Law

20.	The relevant law is found  under Section 4(3) of POCA 1999 which states that if the Tribunal is not satisfied that the individual applicant  was
	(a) guilty of misconduct (whether or not in the course of his or her duties) which harmed a child or placed a child at risk of harm and
	 (b) was unsuitable to work with children, it must allow the appeal. If the Tribunal is so satisfied it must dismiss the appeal.

.	Section 4(3) of POCA 1999 places the burden of proof on the Secretary of State.  The standard of proof required in order to be satisfied as to the matters set out in Section 4(3) of POCA 1999 is on the balance of probabilities, and this  Tribunal  has adopted the approach taken by the Tribunal in the Mairs decision at paragraph 108.

	Findings
Conclusions and Decision

21.	The Appellant during the hearing repeatedly stated that she was unaware of JD’s abuse of AD until AD’s disclosure to her in 1994, and even then  she had not been aware  of the details or the extent  of the abuse. However during cross examination by Mr Moffatt the Appellant did acknowledge that she had assumed that the abuse of AD had been sexual rather than physical. The Appellant  also acknowledged that she had told DC Ashman that she thought that her husband had been attracted to her daughter.  Despite this awareness of JD’s interest towards AD and the subsequent disclosure by AD that she had been abused the Appellant did not consider that such information had any relevance to her child minding activities “no it was a family thing - it was my job he had nothing to do with the children”  

22.	The Tribunal consider that the Appellant’s failure to recognise  the importance of  JD’s inappropriate behaviour to AD is significant,  particularly  her inability  to  acknowledge  that it might have had   wider  consequences and that she also  had  a  responsibility  to  protect  the children in her care against the possibility  of harm.  The Appellant confirmed that she had received evening training sessions in 1993 and that child abuse and child protection issues had been discussed, so the Appellant was aware of risks and her responsibility to protect the children in her care but she chose  to ignore them.

23.	The Appellant admitted during the family meeting that she had not asked JD exactly what had occurred between him and AD.   The Appellant’s explanation was that she was frightened and stated  “maybe I just didn’t want to know”.   At that  point the Appellant was still trying to save her marriage and therefore was prepared to forgive JD and after a few weeks separation he returned to the home.

The Appellant submitted that AD had specifically stated that she did not  want the Appellant to take any further action.   This may have been the preferred option for AD but the Appellant also had a responsibility to protect the children in her care but she chose to ignore those risks in order to comply with the wishes of JD and AD.

24.	The second incident which occurred in 1998 involved HD and as a consequence caused a significant rift in the relationship between the Appellant and JD .  In her evidence the Appellant openly disclosed how shocked she had been when HD  had called out at the time she was being abused by JD  and in her witness statement describes the look of fear on HD’s face. Yet the Appellant still did not report the incident to Social Services  even though she knew something wrong had occurred.   

In contrast to the earlier incident the Appellant did confront JD. The Appellant stated to the Tribunal   “I got angry and he said was I going to take the word of a four year old over me and I said yes”.

25.	The failure to report the matter on the second occasion which involved a four year old child demonstrates that the Appellant was prepared to risk children in her care being exposed to abuse.   

The matters were finally disclosed to Social Services in 1999 but only after pressure from a third party (a Relate Counsellor).

26.	The Appellant candidly admitted that despite having the knowledge that both AD  and HD had been abused by JD she chose not to  report the events to Social Services.   Misconduct is not defined in the regulations; it was discussed in the Mairs decision in depth, in particular at paragraph 109 which this Tribunal has found helpful in its deliberation. The Tribunal finds that  by continuing to accept children after the Appellant was aware of the incident involving HD the Appellant was putting the children in her care at risk. Furthermore the decision to subsequently disclose the information stemmed not from the Appellant’s own volition but from pressure exerted on the Appellant by the Relate Counsellor  who had indicated to the Appellant  that she would report the matter if the Appellant failed to do so.

The Appellant justified  her non disclosure  by  stating  that she kept the children with her at all times after the incident with HD.  However once the Appellant became involved in the Neighbourhood Care Scheme some children stayed overnight, particularly at weekends,  this would inevitably mean that there was the greater  potential for the risk of harm or abuse to children which, for example  could have occurred whilst the Appellant was asleep. The Tribunal therefore has reached the conclusion that the Appellant’s failure to report, particularly the second incident involving AD to the Social Services did amount to misconduct which put the children at risk of harm.

27.	Section 4(3) of POCA 1999 also requires the Tribunal to determine whether or not it is satisfied that the Appellant is unsuitable to work with children. The Appellant had been a child minder for many years and was   invited to become a part of the Neighbourhood Care Scheme.  The Mairs decision at paragraph 111 lists a number of different factors which a Tribunal may consider when deciding whether the Appellant is unsuitable to work with children including:

“(d) 	 the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child;

(e)	the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct.”

The failure of the Appellant to recognise the potential risk of harm to the children in her care is of crucial importance.  

In her evidence to the Tribunal the Appellant revealed that when she decided  not to  report  the abuse she was trying to react to what JD and later AD wanted from her. Initially the Appellant was trying to keep her marriage together as despite the revelation from AD she still loved JD.

Later particularly after the HD incident in 1998 the Appellant sought to react to the wishes of AD.  There was still  no recognition or consideration of the need to report the matter so as to protect the young children in her care.

28.	The subsequent police investigation into JD led to the Appellant  becoming more aware of the details and extent of the abuse suffered by AD as a child. The Tribunal accepts that this has caused the Appellant great distress and a sense of guilt about her failure to protect  both AD and HD.   It is also appears to be one of the main reasons that the Appellant has continued with  this Appeal. The Appellant stated that she no longer wished to do any child minding but her main reason for bringing the Appeal is to feel better in herself especially when she is looking after HD.

29.	JD was convicted of sexual assault on AD , the abuse took place over a period of years and started when AD was under the age of 10 and the Tribunal accepts that the Appellant regrets the events that occurred.  However, pursuing the appeal to assuage the Appellant’s sense of guilt about JD’s abuse does not reinforce or enhance the Appellant’s suitability to continue to work with children.

30.	The Tribunal accepts that the Appellant was not involved in any way with the abuse,  however, as a registered child minder she was entrusted with the care of young children and she had a responsibility to protect them.

The Appellant’s willingness to abrogate her responsibilities to the children in her care on more than one occasion because of her emotional ties to JD and subsequently her guilt towards AD undermines the Appellant’s  suitability to work with children.   By her own admission she did not report the second assault of a four year old child until pressurised by a third party, even though she  believed that  HD had been  abused by JD.

The Tribunal is conscious that the decision to place the Appellant on the list limits her job opportunities; however the purpose of the list is not to punish the Appellant but is designed to protect children against the risk of harm. The  Tribunal is not confident that faced with a different situation  the Appellant  would take responsibility and prioritise protecting the children in her care even if that  was  against the  wishes  of her family. Taking into account all the evidence available the Tribunal upholds the decision to place the Appellant’s name on the list kept by the Secretary of State of those considered unsuitable to work with children.      

	The Decision 

The Tribunal is satisfied that  the Appellant  was guilty of misconduct which  placed a child at risk of harm and that the Appellant  is unsuitable  to  work with children  for the reasons stated above.

The decision of the Tribunal is unanimous 

Dated: 15 December 2004   

Signed: H Clarke (Chairman)
M Martin 
R Winn