AM v Secretary of State for Education and Skills [2004] 310(PC) (31 March  2005)
A. M.

-v-

The Secretary of State for Education and Skills

Application No.  [2004] 310.PC

Before:
Mr John Reddish (Chairman)
Ms Elena Fowler
Ms Pat McLoughlin

Hearing dates:  7th, 8th, 9th, 10th, 11th, 14th and 15th March 2005

Application
On 3rd May 2004 the applicant appealed under section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Education and Skills to include him in the list kept under section 1 of that Act.

Representation
At the hearing, Mr Robert Palmer of Counsel represented the Secretary of State and Mr Adam Korn of Counsel represented the applicant.

The evidence
The Tribunal heard oral evidence on behalf of the Secretary of State from Mr Roger Carruthers, a Principal Officer for Social Services Performance and Review and from Mr Patrick Power, the Managing Director of a Children’s Trust.

The Tribunal heard oral evidence on behalf of the applicant from the applicant himself; Mrs Patricia Peters, the proprietor of a training and consultation service for learning organisations; Dr Keith White, the Director of a residential community; Ms Ruth Lockhart, a teacher of psychology; and Dr Gillian Broster, a Consultant Child and Adolescent Psychiatrist.

The Tribunal also received written evidence on behalf of the applicant from Mr Stewart McCafferty, a freelance Family Therapist; Ms Shila Khan, a Senior Systemic Psychotherapist; Ms Maria McKay, the Vice Principal of a Sixth Form College; Ms Helen High, a Child and Adolescent Psychotherapist; Mrs Rita McGrath, a Senior Child Guidance Social Worker; Mrs B. B., the Team Secretary for the group of Psychiatric Social Workers of which the applicant was the Leader; Mrs Dianne Wood; Mrs Ann Coletta and Mr P.H and Ms L.S., Mrs C.M., Mr M.H., Mrs M. R., Miss V.J., Miss L.N., Ms L.S., Mrs S. P., Mr and Mrs J.S., Miss R., Mr C.S., Mrs R.B., Mrs J.L., Mrs B.R. and Mr M.S., all former clients, or parents of former clients, of the applicant.  This evidence was not challenged on behalf of the Secretary of State.

The Tribunal read the documents submitted by the parties (in 3 bundles comprising a total of 2,179 pages) and the extracts from books by Ms Martha Straus and Mr Daniel Hughes, submitted on behalf of the applicant during the hearing.  The Tribunal also viewed videotaped recordings of the interviews of 3 children (V, L and M) and videotaped recordings of (i) a therapy session conducted by the applicant involving V and (ii) a therapy session conducted by the applicant involving another child, J.

Preliminary matters
On 21st September 2004 the President of the Tribunal made a restricted reporting order, pursuant to regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, 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 the identify the applicant or any child.  The President also made an order, pursuant to regulation 19, directing that members of the press and public be excluded from the hearing.   The Tribunal decided to extend the restricted reporting order indefinitely, being satisfied that such an order would be appropriate to safeguard the welfare of the children concerned and to protect their private lives and that of the applicant.

Facts
The material facts found by the Tribunal were as follows:

1.	The applicant was born in 1949 and is now 55 years old.  He was educated at a Grammar School and subsequently took a degree in Social Studies from the University of Liverpool.  In 1971 he commenced work as a trainee social worker.  The applicant undertook further, postgraduate study.  In 1973 he was awarded a Diploma in Applied Social Studies by the University of Edinburgh and, in 1979, a Certificate in Family Therapy by The Family Institute in Cardiff.

2.	From 1976 until 1984 the applicant was employed as a Senior Social Worker in a Child Guidance Team.  In 1984 he was appointed as the Principal Psychiatric Social Worker at a Child and Family Consultation Centre run in partnership by a local authority and a Mental Health NHS Trust.

3.	V was born in November 1986 to a mother with learning difficulties.  V had a cleft palate, which was operated upon when she was an infant.  She did not receive the appropriate medical follow-up.  By 1991 she had become very disruptive at home.  V and her mother were referred to the Child and Family Consultation Centre where the applicant saw them.  Thereafter, the applicant undertook extensive, though not continuous, family therapy with V and her mother and, after they were born, V’s younger sister and brother.

4.	M was born in February 1989.  His sister, L was born in August 1990.  After their parents separated and divorced, M and L experienced unhappiness and anxiety for an extended period. This led M to become difficult and disturbed both at home and at school and he was sometimes violent to his sister.  M, L and their mother were seen by a Psychiatrist in 2000 and by a Consultant Psychiatrist in 2001-2 and were eventually referred to the applicant for family therapy.

5.	In April 1993 the applicant conducted a session of family therapy with V and her mother, which he recorded on videotape.  V’s mother gave her written consent to this procedure.  During the session the applicant touched V.  First, he brushed V’s hair from her eyes and commented to her mother that her hair was “fine” (a reference to its thickness, not its quality).  Secondly, later in the session, the applicant gave V a reassuring pat on the back.  Neither of the applicant’s actions appeared in any way sinister.

6.	In March 1995, when V was 8, the Deputy Head of her school reported concerns about her health and welfare.  She said that V appeared unwashed, pale and lethargic and that she had complained to her class teacher that her mother had hit her and pulled her hair.

7.	In May 1995 V’s mother had a discussion with a social worker in which she reported that V had been “playing at having sex” with her male cousin and that the children had been licking each other’s genitalia.  Shortly thereafter, V’s mother took V to her General Practitioner alleging that she had been sexually abused, possibly at school.  V refused to be examined by the doctor.  The case was referred to the Child Protection Team but they failed to investigate fully and concluded that there was no evidence to substantiate the allegations of abuse.  During the investigation it emerged that V’s mother was not caring for her properly and needed more help and support.  Her case was transferred from the Child Protection Team to the Children and Families Team for assessment but was not allocated to a social worker.

8.	In October 1995 V made inappropriate sexual remarks and gestures to a member of her school’s staff and accused a named boy of threatening to rape her.  V frequently acted out explicit sexuality and was aggressive and threatening towards other children.  She was described as “an attention seeker who has to be the centre of everything”.

9.	On 17th November 1995 V was violent towards her teacher, calling her names and accusing her of sexually abusive behaviour.

10.	On 24th November 1995 V exposed herself on a school bus and used very explicit sexual language and gestures, directed towards the bus driver and the other children.

11.	On 30th November 1995 V lost control completely in school.  She screamed at and assaulted a teacher, protested vigorously about being touched, threw herself on the floor and indicated that she had been assaulted and sexually abused by a man whom she identified by name as her mother’s former partner.

12.	In December 1995 a senior social worker expressed her serious concerns about V.  She said that she believed that V had been sexually abused.  She was convinced that there should be an early child protection investigation.  A social worker visited the family home and spoke to V’s mother.  She suggested that V must have acquired her extensive knowledge of coarse and abusive language from her playmates on the estate where they lived and she insisted that she had not exposed her daughter to any inappropriate sexual activity.  The social worker also consulted other agencies and discovered that there was widespread concern that adults should not be alone with V because “she makes accusations” and could be “flirty and manipulative”.  When the social worker interviewed V she asserted that the reports made about her by her school were untrue.

13.	In January 1996, the police checked the histories of V’s mother’s 2 male partners (and discovered that they were known criminals but not sexual offenders) and the family were again referred to the Child and Family Consultation Centre for therapy.  In its referral letter, V’s school expressed concerns about her demands for adult attention, her sexually explicit and offensive language, her “casually destructive behaviour”, her constant disobedience and her “inner conflicts and tangled emotions”.  The applicant, apparently without acknowledging other professionals’ concerns, agreed to undertake further therapy on the basis that the family had “responded quite well” before.

14.	In July 1996 reports about V were made to the local education authority, who were undertaking a statutory assessment of her special educational needs.  V’s teachers said that she was unwilling to accept responsibility for incidents and would deny liability even when her involvement had been observed and that her inappropriate behaviour seemed to be aimed at gaining individual attention.  The Headteacher of V’s school reported that V was “bright” and “mentally agile” but that she frequently used inappropriate language and was obstructive and uncooperative.  She also said that the school had serious concerns for V’s safety because she was frequently away from home at night and her mother was unaware of her whereabouts. 

15.	In July 1996 V took part in a play scheme during the school holidays.  She appeared unkempt, neglected and unwashed and was frequently violent and abusive to the other children.

16.	In October 1996 V was given the benefit of a statement of her special educational needs and arrangements were made for her to attend a school for children with emotional and behavioural difficulties on 2 days each week.  V’s “sexualised” behaviour continued and her mother was reported to be “feeling persecuted” by her neighbours, who frequently complained about V.

17.	At a conference held at V’s special school in November 1996 it was reported that V’s behaviour was unacceptable, offensive, manipulative and upsetting.  She “craved attention from adults, whether positive or negative”.  She was, it was said, “a needy, vulnerable child”.  Her mood swings were unpredictable and she was sexually aware and threatening.  She enjoyed physical contact with adults but was so provocative to other children that they rejected her.  A further child protection referral was made and it was agreed that V should be offered a full time place at the special school and given the benefit of “specialist therapeutic intervention”.

18.	 By May 1997 V was said to be out of control.  She was running away from school and her mother was unable to cope with her.  On 20th May 1997 V’s mother reported to the Social Services that V was beyond her control, abusive, challenging and dangerous to herself and others.

19.	On 22nd May 1997 the applicant noted that V’s mother was desperate and that V was dishonest, verbally abusive and rebellious.

20.	In June 1997 V was reported to be absconding and regularly involved in crime.  Her mother asked the Social Services to accommodate her and her school expressed grave concerns for her safety.  V seemed to be “in a constant state of verbal and physical hostility”. 

21.	At an emergency meeting on 25th June 1997, V’s mother requested the further involvement of the applicant.  V’s social worker agreed to investigate the possibility of a placement with specialist carers; to liaise with the police and to arrange a child protection conference.

22.	In November 1997 V’s position was reviewed by her school.  There had been significant improvements in her behaviour but she continued to be “verbally and physically provocative” and “extremely abusive and physically aggressive” when prevented from doing what she wanted or objecting to observations made to her.

23.	On 2 occasions in December 1997, V went to the Centre, where she had become well known, and asked for assistance from the applicant.  He persuaded her to return to her mother and arranged an appointment for further family therapy.

24.	On 13th January 1998 the applicant saw V in a therapy session with her mother and her younger sister.  V’s baby brother was also present.  At one point during the session V was standing at the window looking out.  She asked the applicant to join her there to view an animal that she had either seen or pretended to see.  When standing next to V, the applicant touched her hair and complimented her on the fact that it was clean and well cared for, in contrast to its appearance on earlier visits.  As V moved past him, the applicant noticed that her blouse was unbuttoned so as to reveal her navel.  He pointed towards V and commented on the fact that her “belly button” was showing.  He did so in a friendly but (as he accepted in his oral evidence) possibly “tasteless” manner.

25.	The applicant made a manuscript note following the session on 13th January 1998.  He recorded that it was “quite relaxed” and “informal” and that he had “an odd feeling in that it was impossible to pin on the current concern or problem”.  The applicant also recorded that “there was a focus on V in terms of her interest, progress and achievements”.  He had questioned the need for further sessions and had suggested “a review meeting some months ahead”.  Finally, the applicant noted that “in terms of the feeling content/process the session was a little strange”.  The session was not in his own room and V had showed a great interest in all the items in the room and “seemed keen to act as a smaller child”.

26.	On 19th January 1998 V’s mother complained to Ms M, a worker at the Social Services’ Family Centre, that she had felt uncomfortable during the recent family therapy session with the applicant because he had “played with” V’s hair; had commented that she had a button undone and had tried to put his finger through the hole created by the unfastened button.  V’s mother also alleged that the applicant had rubbed his hand over V’s sister’s abdomen and had commented that she had “a nice tummy”.  V’s mother said that she was unsure as to how to proceed with these complaints because she was on very friendly terms with the applicant.

27.	On 21st January 1998 V’s mother had a further conversation with Ms M during which she confirmed that she wished to make a complaint against the applicant and said that he had run his fingers through V’s hair when V had gone to look through the window.

28.	On 28th January 1998 Mr Drew, the Chief Children and Families’ Officer, drew up a plan of the action to be taken in response to V’s mother’s complaint.  It was agreed that Ms Brenda McLaughlin, an independent person from another authority, would conduct an investigation and make recommendations.

29.	On 9th February 1998 Ms McLaughlin interviewed V in the family home.  V said that, on 13th January 1998, she had been wearing a white blouse, which had a button missing so that it gaped open around the midriff area.  She said that, while she was sitting beside her mother, the applicant had “put his finger into the gap” and had “touched her belly button”.  V also alleged that the applicant had followed her to the window; commented on her “beautiful hair” and touched it.

30.	Later on 9th February 1998 Ms McLaughlin interviewed V’s mother.  She alleged that the applicant had touched V “throughout the meeting”, starting by touching her arm and then becoming “more personal”.  She said that the applicant had stroked V’s face and run his fingers through her hair.  V’s mother said that this made her feel uncomfortable because she was reminded “of what a man might do to his girlfriend”.  She could tell “by the look on his face and the feeling in the room” that the applicant was behaving improperly.  In response to a question from Ms McLaughlin, V’s mother said that the applicant had put his finger through a gap in V’s blouse and had pointed out that she had a button missing.  She could not remember whether this was before or after the alleged touching of the hair.  Finally, V’s mother said that she was aware that V had alleged that the applicant had touched her younger daughter’s stomach but she had not seen that because she was attending to the baby. 

31.	On 11th February 1998 Ms McLaughlin interviewed the applicant.  The applicant said that he was unaware of the charges made against him.  He recalled that the session on 13th January 1998 had been “unremarkable”.  He described his general approach and style as “informal and friendly” and said that he was “not opposed” to the idea of touching children during therapy but emphasised that any touching must be appropriate, such as placing a hand on an arm or shoulder by way of reassurance or guidance back towards a parent at the end of a session.  The applicant said that he could not recall touching V’s hair but that he may have done.  He said that the alleged comment about the missing button was “not untypical of something he might say”.  In her later report, Ms McLaughlin recorded that the applicant had said he could not recall touching V on the tummy but that he may have done.

32.	On 16th February 1998 Ms McLaughlin reported in writing to Mr Drew.  She said that, in her view, it was impossible to substantiate the complaint of inappropriate touching because of “lack of corroborative evidence”.  She noted that V and her mother had given different accounts of the running of fingers through V’s hair and that V’s account did not indicate inappropriate behaviour.  In relation to the allegation of “touching of V’s tummy”, Ms McLaughlin concluded that, while both V and her mother had given the same account and the applicant had conceded that he may have made the comment attributed to him, there was no evidence that anything inappropriate took place.  Ms McLaughlin rejected the allegation that the applicant had touched V’s sister’s tummy because V’s mother had not see this and V could not recall it.

33.	On 25th February 1998 Mr Drew wrote to the applicant.  He said that it would be “unwise” of the applicant to touch a girl of 11 on her tummy.  He appreciated that the applicant might wish to use touch for reassurance and other purposes but expressed the view that touching should be restricted to the head or arms in order that “precisely the sort of misinterpretation” that had occurred in this case might be avoided.  Mr Drew also referred to “the shameful ignoring of children’s complaints in the past” and said that this “set up a climate in which some would feel that we over-react”.  Finally, he expressed his delight that the complaint had not been upheld.

34.	 Later in 1998 V was reported to be “still hostile and abusive”.  In June and July 1998 she was excluded from her school on several occasions for absconding.

35.	At the annual review of her statement of special educational needs in January 1999, V was reported to be manipulative of staff, negative, aggressive and abusive.

36.	In 2000 the applicant was registered as a Family Therapist by the UK Council of Psychotherapists.

37.	In March 2000 M and L (and their mother, C) were seen by a psychiatrist, Dr Yee, after the children had witnessed an incident between their mother and father and their mother had been “taken to court” by their father.  C told Dr Yee that the children “played up all the time, teasing and arguing with each other”.  L said that she was confused about what had been happening to her parents and M said that he felt angry about his father’s behaviour.  C described M as a “perfectionist” who “needed everything to be in perfect order” and said that M and L were “very close” and would “stick up for each other at school”.  Dr Yee concluded that M and L were “delightful youngsters” who were “caught up in their parents’ battle” but it was possible that C’s perception of her children’s misbehaviour was magnified due to her own depressed state.  Dr Yee advised C not to use her children “as pawns in her battle with her ex-husband”.

38.	In June 2000 V made further allegations that she had been touched inappropriately by another pupil at the boarding school to which she had been sent in January 1999.  She alleged that a named boy had “grabbed her backside”.  The Head of the school thought that the allegation was “very unlikely” and that V was probably “manipulating the situation to take control”.

39.	On 31st January 2001 the administrator of the Child and Family Consultation Centre informed V’s mother that V had been calling at the Centre from time to time without an appointment, using various excuses to try to gain entry.  When refused entry, V had become bad tempered, abusive and threatening.

40.	In March 2001 V made an allegation against the driver responsible for transporting her to and from her residential school.  She said that he had made “sexual comments and a gesture”.  The allegation was investigated.  V’s escort said that “nothing untoward had happened”.

41.	In September 2001 M and L entered their secondary school.  M moved to the school in Year 8 after experiencing bullying at his previous school and L entered in Year 7 from her primary school.  The school found L to be “a delightful child” who was “slightly immature”.

42.	On 26th October 2001 the applicant asked Mr Carruthers to approve the direct supervision of his clinical work by an independent expert since regular supervision was a condition of his continued registration with the UKCP.

43.	On 31st October 2001 Mr Carruthers said that he was unable to accept the applicant’s proposal for clinical supervision of his work with clients.  The Children and Families Service did not, he said, require the applicant to maintain his registration with the UKCP and did not have a budget for the independent supervision of his practice.

44.	In January 2002 the applicant began seeing M, L and their mother for family therapy.  The family attended therapy sessions at intervals of approximately 3 weeks.

45.	On 30th January 2002 the applicant reported to the Consultant Psychiatrist at the Centre that there was “a good deal of rivalry between M and L for status with their rather dejected and complaining mother”.  He noted that there was “considerable preoccupation with father’s position [and] his abandonment of the family under the malign influence of his new wife”.  C complained that her children did not “let her have a life” and that her “watch dog daughter” lived “in the fantasy land of a wonderful father returning apologetically to the family”.

46.	On 22nd February 2002 the applicant conducted a further therapy session with M, L and their mother.  C “presented a great deal of anxiety but strong ambivalence about the helping process” saying that she was “at breaking point” but that it was “too late to get help”.  L “complained about being blamed for everything that went wrong in the house”.  The applicant noted that L tended to “talk in a rather babyish, squeaky, complaining voice for much of the time”.  C complained that her vocal chords were being adversely affected by having to shout at the children so much.  The applicant made some “individual time” available to L.  She became “quite relaxed and responsive” and spoke of her relationship with her brother, her “possessive anxiety towards her mother” and her fears about her mother’s mental state, unpredictable moods, boyfriends and misuse of alcohol.

47.	The applicant recalls that L “had a history of conflict with her brother which involved telling untruths including rubbing her arm until it was red, crying out loudly and running to her mother to claim that M had hurt her”.  This was neither confirmed nor contradicted by any document held on the relevant file.

48.	On 18th June 2002 the applicant conducted a therapy session with M, L and C in his room in the Centre.  All of the participants sat around a square table.  C sat to the applicant’s left, L to the applicant’s right and M opposite to him.  M had a black eye.  The applicant ascertained that this was the result of him being hit in the face by another boy who had accused him of touching his girlfriend on her breast.  This incident was the major topic of conversation for much of the first part of the session.  L was unhappy that all of the attention appeared to be directed to her brother.  She sulked and used her “baby” voice.  M and C commented adversely on this, causing L to sulk even more.  L had drawing materials and play dough available on the table in front of her.  She used these from time to time during the session.

49.	Later in the session, C began painting, using an easel equipped with paper, paints and drawing equipment.  M asked the applicant if he could do some drawing on the white board (situated on the opposite side of the room from the easel) but the applicant suggested that he should pay attention to his mother’s drawing instead.  C continued with her painting, turning back from the easel from time to time to explain to the applicant, M and L what she was endeavouring to depict.

50.	There was a dispute about how, if at all, the occupants of the room moved around when C was painting.  When interviewed later, M said that L moved behind him to obtain a better view of the painting and that the applicant deliberately moved behind L.  L said that the applicant moved behind her although he had no apparent need to do so in order to gain a clear view of the painting.  The applicant denied that he moved in the manner described by L and M.  He recalled that he moved to the side of the table at which L was sitting only at the end of the session, after C had stopped painting, when he and M were clearing up from the floor some of the play dough and other materials that L had been using.

51.	At the point when the therapy session appeared to have reached a conclusion, all of the participants stood up and prepared to leave.  M and L moved to the doorway but C delayed her departure, insisting that the applicant should make a further appointment for the family before they left rather than, as the applicant had suggested, send her notification of such an appointment by post.  The applicant and C returned to their seats and the applicant looked at his diary and discussed available dates with C.  M and L became irritated by the delay and L displayed her anxiety to leave by tugging on her mother’s arm and moving quickly out of the applicant’s room.

52.	On 19th June 2002 the art teacher at L and M’s school, Miss S, noticed L and some of her friends gathered by the door to the art room.  They appeared to be “gossiping”.  Miss S sent them away.  Just before the end of the morning break, L and one of her friends approached Miss S, talking between themselves.  Miss S sensed that they wished to speak to her.  L’s friend said that L had something that she wished to say.  L said that she did not want to say anything.  When Miss S pressed her to say what was wrong, she again declined.  L’s friend then said that L had been touched but was embarrassed to say what had happened.  L then said that she “felt funny” about making the accusation but recounted that, during “counselling at Child and Family” the counsellor had “put his hand on her bottom for longer than she thought was acceptable”.  Miss S said that she would deal with the matter and would speak to L again.  At 1.30 p.m., L returned to the art room with her friend.  Miss S invited L to write down what had happened and she did so.  Miss S then passed the matter over to the Head of Year.  She, in turn, passed the matter to the Headmaster.

53.	L wrote the following account:
“I was leaning on the table because I was looking at my mum’s painting of what she had done and he came to stand behind me and he put his hand on my bum and kept it there for a second or two.  I didn’t know what was going on because I was in shock so when he was leading us to the door I rushed forward to go in front of my mum in case he did it again.  I don’t like [applicant’s name] and even before this had happened I didn’t like him.  I’m going to tell my mum tonight but I was to (sic) scared yesterday to tell her!  My mum and brother did not see what had happened.”

54.	L then explained to the Headmaster that she had felt uncomfortable and that the applicant had left his hand on her bottom and she “jumped back” and just wanted to get out.  The Headmaster summoned L’s mother and informed the Social Services.

55.	On 20th June 2002 Miss S reported further to a social worker.  She said that L had told her that she had “leant over a table to look at her mother’s work” and the applicant had “touched her bum”.  Miss S added that L had “felt uncomfortable” and had run in front of her mother and brother, possibly to be in their view.  Miss S further reported that she had tried to establish if the “touch” was affectionate or accidental and that L had said that the applicant had touched her for a second.  L had, she said, illustrated the action and the timing by “demonstrating the action on a table”.

56.	On 20th June 2002 Mr Carruthers convened a Child Protection strategy meeting.  He informed the meeting that this was the second time that there had been an allegation that the applicant had touched a young girl inappropriately during a family session at the Centre.  DS Sayers (from the Child Protection Team) said that it was clear that the allegation was one of indecent assault and that it would need to investigated as such.  It was agreed that L should be interviewed and that the interview should be videotaped.

57.	On 21st June 2002 Ms Jo Usher, a social worker from the Child Protection Team, collected L and her mother from their home to take them to the police station where L was to be interviewed.  L’s mother was very anxious and asked Ms Usher, in L’s presence, whether the applicant had been suspended and if he had done “this sort of thing” before.  L appeared relaxed but said that she felt quite nervous and that she had not had much sleep.

58.	Later on 21st June 2002, L was interviewed by DC Shepherd and Ms Usher.  Her mother was present during discussions that preceded the formal interview but sat elsewhere while L was answering questions.  L said that she did not know who the applicant was but that she thought he was a psychiatrist.  He had, she said, touched her bottom.  When asked to say exactly what happened L said:
“I was leaning on the table like that standing up and I was in my school uniform and because I couldn’t see and then he went to stand up and he come behind me.  Then my brother looked round and then he see him but then he turned back again and then he touched my bottom”.
L explained that the applicant had touched her bottom with his hand and demonstrated what she was alleging.  When asked what she did when the applicant put his hand on her, L said:
“I didn’t do nothing ‘cause I was like in shock because I wasn’t expecting it from somebody who is meant to help you and you’re meant to like trust them but you can’t any more and I was like, my face was like, what am I going to tell my mum and I got really scared to tell her”.
L added that, when they were leaving, she had told her mother that she did not like the applicant and that, when her mother had asked why, she had said that she just did not like him.  She said that she really wanted to tell her mother but the words never came out of her mouth.
When asked to explain what she had told her friend on the following day, L said:
“What he did.  And then I started crying and, because I was in, I just couldn’t.  When I, cause he’s like an old man and everything and it just made me sick all day.  I was crying all the time.”
When asked whether anything like this had ever happened before, L said:
“But he always gives me these looks and everything and that’s why I don’t feel comfortable with him when he’s around and they’re just, the way he looks at me.  He don’t do like anything to my mum.  He don’t look at my mum like that or anything or my brother.  He always looks like that and goes … like that.  I don’t like it.  And I haven’t said anything.  I just said I don’t like him.”
When asked to show how the applicant’s hand was when he touched her bottom, L said that he had rubbed it for “about one or two seconds” and again demonstrated the action with her own hand on the arm of her chair.  When asked to clarify whether she was saying that the applicant had patted or rubbed her bottom, L said and demonstrated that he had first patted it and then rubbed it.  She rejected the suggestion that the touching might have been accidental and confirmed that she thought it was intentional.
In response to an invitation from DC Shepherd to ask questions of her own, L said:
“I just wanted to say, you know, when he rubbed my bum, yeah, I don’t think it was by mistake ‘cause he come and stood behind me and because … I was wearing my uniform my skirt covers my bum not my tee shirt.  And my brother, I was talking to him about it and he said: well he could have done it and I said no because my back ain’t down, right down there and he knows that”.
When asked whether the applicant had any reason to come and stand behind her, L said: “I don’t know.  He could see perfectly my mum’s picture from where he was sitting and I don’t know why he had to come and stand behind me.”

59.	On 24th June 2002 the applicant attended a “suspension interview”.  The local authority were under instructions from the police not to divulge details of the allegations to the applicant.  Mr Halsey, the Principal Officer assigned to deal with the matter, told the applicant that he would be suspended from duty; that he was not to enter any of the Children and Families’ offices and was not to contact any of his colleagues or any service users without the express permission of the Chief Children and Families Officer.  The applicant’s union representative expressed concern that the nature of the complaint was not being made known to the applicant.  The applicant said that he felt that this was contrary to the proper procedure.  The applicant was very aggrieved and dissatisfied.  Mr Halsey said that his colleagues would simply be told that he had been suspended but that no further information would be provided.

60.	On 25th June 2002 M told his mentor (from the local “Mentoring Project”) that “something bad had happened” and described the events of 18th June in some detail.  M’s mentor took him home and had a lengthy discussion with M, L and their mother about what had happened.  L was “upset and tearful”.  She related “the same story” as M, getting progressively more upset as she did so.  L said that she “wanted him [the applicant] to be dead” and was afraid that he would come and get her in the future.

61.	On 29th June 2002 DC Shepherd interviewed V.  The interview was recorded on videotape.  When asked what she had said about the applicant, V said: “All I can remember is he, like, went a bit close on my belly and I felt uncomfortable and I told him to stop and he just carried on.  That’s basically what I can remember”.
When pressed to give details, V said: ”I was wearing it was like a top that went like opened up at the belly button and he said ‘Oh, I like your belly button” and started poking it and I asked him to stop ‘cause I felt a bit uncomfortable with him and he went, like, just underneath my belly button and I asked him to stop and my mum was there and she like started laughing ‘cause she didn’t know what was really happening.  And that’s all I can remember”.
V said that the applicant used his finger to poke her and did it “about two or three times”.
When asked if the applicant did anything else, V said: “I really can’t remember.  It’s so long ago and I’ve got a really bad memory”.
DC Shepherd sought to recapitulate.  V said that she was sitting on a chair and the applicant was standing and noticed her belly button.  She described how the applicant “started staring” and said that the way he stared made her feel “a bit uncomfortable as well”.  In response to the question: “How does he come to actually touch you?”, V said: ”He just bent over and reached over and started poking me”.
DC Shepherd returned to the description of the touching and asked V to describe again “how he did it”.  V said: ”It’s like a little poke and a little tiggle kind of thing” and demonstrated a circular movement with her finger.

62.	On 1st July 2002 C spoke to Ms Usher.  She was angry and said that she did not want M to make a statement because he was “already very mixed up”.  She said that she was aware that there had been an incident involving another young person and the applicant and demanded to know whether this had occurred before the incident with L because, if it had, she would make a formal complaint and would speak to the press.  C said that she wanted the applicant punished for what he had done and that it “all made sense with hindsight”.

63.	Ms Usher also spoke to L. When L told Ms Usher that she identified with her father’s culture, C shouted at L, calling her “fucking stupid”.  L told Ms Usher that her relationship with her mother was sometimes awkward and she then “seemed to withdraw and began to speak in a babyish voice”.

64.	On 2nd July 2002 Ms Usher reported to her colleague that she was concerned for the emotional well being of L and M and felt that there was “an element of emotional abuse within the family”.

65.	On 2nd July 2002 the applicant was arrested and interviewed by DS Sayers and DC Shepherd in the presence of his solicitor.  When asked to say how he had come to know L, the applicant explained how the referral of the family had been made to him and the difficulties that M and L had been encountering following their parents’ divorce.  He said that he had been told that L “was also being very provocative and was getting M into trouble” and that “she was still badly affected by her parents’ divorce and there was a lot of controversy in the family”.  The applicant also explained that L spoke “with a very infantile, high-pitched, whiny voice a lot of the time” and “tended to compete with M for attention”.  He described how C “told the children virtually everything that went on in her life and her affairs” so that “there was often competition between the children”.  C had, he said, told him that L had “screamed and squealed as if she was being half killed” but then C had “found that actually nothing had happened and that she herself [V] had provoked it”.
DS Sayers put to the applicant that he had placed his hand on L’s bottom and rubbed it.  The applicant said that he “absolutely denied” doing anything of that sort.  He went on to explain that M had attended the therapy session with a black eye and that he had described how he had been injured.  The applicant agreed that C had been painting but said that he did not remember L bending forward to view the painting.  He could not recall any accidental touching or anything that L might have misconstrued.
When asked if he could offer any reason why L might have said what she said, the applicant protested that he was being asked to speculate but mentioned that L had, towards the end of the session, “begun to whine” in her “rather irritating manner” because M was “holding the fort and was getting most of the attention”.  He added that L “hadn’t had much air time and started to whine that nobody was listening to her” and that, when she was given time, M and C had ridiculed her “which only made matters worse so she withdrew and pouted” and said that if nobody was going to listen to her, she would not say anything.
DS Sayers then asked the applicant what he recalled about V.  The applicant explained that the family “had been known to Social Services on and off for years” and that he had had 2 or 3 phases of contact with them.  His recollection, “in broad terms”, was that V was “verging on being out of control” and was “very neglected” and “very dirty” and was “putting herself at risk”.
DS Sayers asked the applicant whether he could recall a session after which V’s mother had made a complaint.  The applicant said that he could remember being told about it after the event and explained at length how, on that occasion, V had been friendly, approachable, clean and well dressed.  He had, he said, commented favourably on V’s appearance.  He had also “ruffled her hair” and commented on its cleanliness and how “she looked really nice”. The applicant denied that he had otherwise touched V.

66.	On 4th July 2002 police officers searched the applicant’s office and removed the tape of the therapy session with V made by the applicant in 1993.  Mr Carruthers subsequently removed a further 175 videotapes.  The tapes were catalogued and viewed by various senior members of the local authority or NHS Trust staff.  Mr Carruthers made a “compilation tape” of several extracts that had been considered to be suspicious.  Dr Alex Horne, a Consultant Child and Adolescent Psychiatrist, viewed this compilation and reported his “feeling of disturbance” because of the “anti-therapeutic actions” of the applicant.  Dr Horne also said that the touching was “inappropriate” and “added to the sense that [the applicant] was pursuing an agenda with these children that was his own and not based on their needs”.

67.	On 15th July 2002 Ms Usher visited C, L and M at home.  M asked her if it was true that “there had been another disclosure”.  He expressed his belief that the applicant was “a pervert” and should be punished.  He also said that he had failed his sister because he had been in the room and he should have seen what was happening.  Ms Usher told him that “what had happened was a betrayal of trust and that it was not his fault”.  L told Ms Usher of her sadness at not being able to see her father and expressed a desire to talk to her about her unhappiness.  She said that she felt that the applicant was “a pervert” and she wanted him to go to prison.

68.	On 18th July 2002 the applicant attended a second “suspension interview” with Mr Power and others.  Mr Power expressed concern that an article had recently appeared in “The Sun” newspaper and stressed that the information had not come from the local authority.  The applicant expressed his “outrage and concern at what he saw as a matter spiralling out of control”.  He said that he felt “abandoned by other senior officers” and asked if “standards had dropped to where any touching is considered suspicious”.

69.	On 23rd July 2002 the applicant was formally charged with an indecent assault upon L.

70.	On 29th July 2002 Ms Usher had a meeting with the manager of the Mentoring Project who expressed her concern that M’s family had been “off-loading” too much on to M’s mentor and that M could talk of nothing other than “the incident” in his discussions with her.

71.	On 3rd September 2002 solicitors acting for L in a proposed action for damages for personal injuries requested a copy of the “file on the incident” held by the local authority.

72.	On 5th September 2002 C made a witness statement to the police. She described the applicant’s room at the Centre as “small and very cramped” and referred to the “chalk board” which was behind her.  She said that she had had to turn her “whole chair round to face the board” and so had had her back to the others in the room when she was drawing her picture and they were trying to guess what it was.  She noticed at one point that the applicant was not in his chair and was standing behind L.  C said that, at the end of the session, L was “very eager to get out of the room” and had dragged her, saying: “Let’s get out” and, later: “I don’t ever want to go there again”.  L told her that she did not like the applicant and she “was never going back to see him” and, on the following day, asked her, on the way to school, not to make her go back to see the applicant.

73.	On 19th September 2002 DS Sayers and DC Shepherd interviewed M.  The interview was videotaped.  M said that, about 10 minutes before the end of the session, his mother was painting a picture and he wanted to “have a go on the white board” but the applicant told him watch his mother.  When his mother finished, the applicant said that they were out of time and L “ran out of the room quite quick”.  When they were outside the room and their mother was still talking to the applicant, L asked him whether he liked the applicant.  He replied that the applicant was “alright” and L said that she hated him and that he was “a bloody prick”.
DS Sayers invited M to provide greater detail.  M said that his mother was painting; he was sitting down “sort of leaning over” and L got up and came behind him to look because she couldn’t see clearly.  Then the applicant, he said, got up and went behind L.  M drew a sketch of the room; marked the positions of the occupants on it and showed how they had each moved. He explained that his mother’s painting was behind her and to her right; that he moved his chair; that L “came over” behind him and was standing up and that the applicant moved from the opposite side of the table to a position behind his sister.  M then said that L went “voom” out of the room at “a good pace”.  M described and demonstrated how L was leaning over the table to see their mother’s painting with the applicant behind her.  He said that his sister had never really liked the applicant.  When pressed to say whether he had seen the applicant touch his sister, M said that he had not.  M added that, on the way home, L was “in a bit of a mood” and “just like went in her room” when they arrived.

74.	On 11th October 2002 the Crown Prosecution Service decided not to pursue the charge against the applicant any further.

75.	In November 2002 the local authority instituted disciplinary proceedings against the applicant.  On 14th November 2002 Mr Carruthers informed him of the charges that would be made against him and of the material that would be used in support of those charges.

76.	On 25th November 2002 Mr Carruthers held an “investigation meeting” with the applicant and his union representative under the local authority’s disciplinary procedure.  He informed the applicant that his investigations had given him reason to think that there had been a number of instances of improper conduct on his part.  He asked the applicant why he had made video recordings of his work with families; whether the parents had signed their consent for the recordings and why he had retained the recordings.  The applicant gave detailed replies.

77.	Mr Carruthers also asked the applicant whether he considered that the guidance given to him by Mr Drew in February 1998 was clear.  The applicant said that “if your main objective was to look after yourself and never have a complaint made against you”, Mr Drew’s advice was sensible but some children, like V, who had only had “physical contact not of a nice variety”, needed contact during therapy but the therapist had to be careful.  This was, he said, where clinical supervision, which he had never had, became important.

78.	Mr Carruthers invited the applicant to comment upon V’s police interview.  The applicant said that if the allegation were true it would be improper behaviour but it was “complete nonsense”. It did not, he said, “add up” that he had been “in a session and poking a child’s belly button in front of her mother”. It was unbelievable.

79.	Mr Carruthers asked the applicant about his therapy session with V in 1993.  The applicant said that his actions were appropriate and that “there needs to be ordinary human contact but everybody is scared”.

80.	Mr Carruthers also asked the applicant to comment on the improper behaviour described by L.  The applicant agreed that if L’s account were true, it would have been improper behaviour.  He protested that L had been led and “by the time she had finished he had done everything but the bossa nova on her bottom”.  He said that he had not touched L’s bottom at all and that there had only ever been “meeting and greeting touches”.  He did not recognise some of the evidence given by L.  She was supposed to have rushed out of the room but that did not happen.  Mr Carruthers then suggested that M’s account supported L’s account.  The applicant retorted that “M didn’t see it because it never happened”.

81.	During the meeting on 25th November 2002, the applicant also said that he had been doing his job for nearly 31 years “hopefully with a light touch” and “the authorities and the police” had “gone to town on his case”.  He suggested that “if you create a context of suspicion then anything can appear suspicious”.  When asked about his videotaped sessions with J, the applicant said that he would argue, unfashionably, that there was “a need for a degree of familiarity with a child who has never had a safe relationship with a male”.  He explained that, when advocating “a degree of familiarity” he meant “warmth and touch in a non-threatening manner”.  He was not suggesting that children who did not wish to be touched should be touched but he did believe that “most children need some physical warmth and approval” and that “an encouraging touch on the arm or the back would be appropriate”.  According to Mr Carruthers, the applicant “drew a similarity to training an animal that had been abused – they have to get used to being touched to a degree”.

82.	After a short break and an opportunity to consult with his union representative, the applicant explained that he would advise his staff that “a touch on the arm” or “an encouraging hand on the shoulder or on the back or, with a younger child, a playful touch on the head” would be “OK in context”.  He said that “by and large, he would ask people to keep a respectful distance but show a warm interest” and that, if touch were needed, that should come from the right person, probably the parent.

83.	On 26th November 2002 Mr Carruthers produced a written report.  He said that, in 11 of the 175 video tapes, the applicant’s conduct might be questioned, including some single instances in which children were touched briefly on the shoulder.  Mr Carruthers thought that the applicant’s defence of “sound therapeutic practice” should be tested at a disciplinary hearing.

84.	On 29th November 2002 the applicant was informed that he would be required to attend a disciplinary hearing, to be chaired by Mr Power, at which he would face 6 charges of gross misconduct.  The first 2 of these charges related to the allegations made by L and V.  The third charge related to alleged inappropriate physical contact with J.  The remaining charges related to the physical restraint of a child, the making of a videotape inappropriately and the making of a request to see a tattoo on the body of a service user.

85.	On 30th November 2002 Applicant sent his written corrections to the notes made by Mr Carruthers of the meeting on 25th November 2002.  The applicant pointed out that, contrary to V’s assertion that she had not seen him after the session on 13th January 1998, she had visited the Centre on 2 or 3 occasions after that date and had spoken to him, in the presence of another worker.

86.	The applicant’s disciplinary hearing took place on 22nd and 23rd January 2003.  DC Shepherd and Dr Horne gave evidence.  Dr Horne said, amongst many other things, that touching a child implies “a caring, ‘looking after’ thing” and a therapist is not in that position.  Dr Horne added that, if a child has been sexually abused, it would be “absolutely wrong” to touch him or her, because “you don’t know what the child will read into it”.  The applicant said that he had developed an interest in alternative ways of working with children based partly on the work of Martha Straus, who discussed the issue of touching therapy, and partly on the work of Daniel Hughes.  He contended that both of these authors made the point that, while there are issues of potential misrepresentation and personal integrity, there are occasions on which appropriate touch is part of the therapy.  However, the applicant said he would not “defend that in standard practice” and felt it was wise for the Centre to have a “no-touch policy” as a “necessary response to the times we are in”.  There should, he said, be a further debate.

87.	On 27th January 2003 Mr Power announced his findings.  He rejected the charges relating to the making of a request to see a tattoo, the making of a videotape and the physical restraint of a child but found that the charges relating to the inappropriate physical contact with J, the inappropriate physical contact with V and the indecent assault upon L were proved.  Mr Power said that, following his findings, the applicant would be dismissed without notice and with immediate effect.

88.	On 3rd February 2003 the applicant appealed against Mr Power’s decision.

89.	On 24th February 2003 the local authority referred the matter to the Secretary of State and, on 25th February 2003, the Secretary of State placed the applicant’s name on the statutory list provisionally and invited the applicant and Mr Power to make observations.

90.	On 25th April 2003 the applicant’s solicitors presented his observations.  The applicant said that he was a skilled and experienced case worker and therapist and he “categorically refuted” the suggestion that he had ever indecently assaulted or used inappropriate physical contact with any child in his care.

91.	On 25th April 2003 the applicant applied to an Employment Tribunal, alleging unfair dismissal.

92.	On 5th June 2003 an Appeals Committee of the local authority was convened.  A chairman was elected and the hearing was adjourned.

93.	The applicant’s appeal was heard on 11th, 16th, 26th June and 4th and 16th July 2003.  Mr Carruthers and Detective Inspector Thurley gave evidence for the authority.  The appellant gave evidence himself and Mrs Peters and Mr McCafferty gave evidence on his behalf.  The Committee rejected the applicant’s appeal holding that a fair and reasonable process had been followed; that the appellant had disregarded Mr Drew’s letter of 25th February 1998 relating to touching and that there was consistency in the evidence of the individual children, whom an experienced Child Protection police officer considered to be truthful.  The Committee noted “some confused responses from the appellant” to the particular allegations relating to V and their concern about the applicant’s practice of conducting interviews without using the video suite.

94.	In December 2003 C and L failed to keep an appointment for counselling offered as a result of the alleged touching because L had been “increasingly distressed”; had said that she could not cope and “did not want to talk about the past”.  The counsellor pointed out that “there were many other issues apart from the touching”.

95.	On 12th February 2004 the Manager of the Protection of Children Act List informed the applicant’s solicitors that the Secretary of State had decided to confirm the applicant’s name on the statutory list.

96.	On 13th April 2004 the applicant and the local authority reached a compromise agreement in settlement of the applicant’s application to the Employment Tribunal.

97.	On 1st October 2004 the Secretary of State’s representative lodged a Schedule of the Misconduct relied upon, containing 3 allegations relating to the touching of L, V and J by the applicant.

98.	On 23rd December 2004 the Secretary of State’s representative lodged an Amended Schedule of Misconduct omitting the allegation relating to the touching of J., upon which the Secretary of State had decided not to rely.

The law 

99.	The Tribunal received submissions from both Mr Korn and Mr Palmer as to the law that should be applied.  Having considered those submissions and the authorities relied upon, the Tribunal reached the following conclusions.

100.	Under section 4(3) of the 1999 Act, if the Tribunal is not satisfied that the individual applicant (a) 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) is unsuitable to work with children, it must allow the appeal.  If the Tribunal is so satisfied it must dismiss the appeal.

101.	Burden of proof
Section 4 of the 1999 Act places the burden of proof on the Secretary of State.

102.	Standard of proof
The standard of proof required, in order to be satisfied as to the matters set out in section 4(3) of the 1999 Act, is that described in the decisions of the House of Lords in Re H and others (minors) (sexual abuse: standard of proof) [1996] AC 563; [1996] 1 All ER 1 [1996] 1 FLR 80 and Secretary of State v. Rehman [2002] 1 All ER 141.
In the former case, Lord Nicholls of Birkenhead said:
“[T]he standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability….
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability….
Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.”

In the latter case Lord Hoffman said:
“It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that he was an Alsatian.  On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has…behaved in some…reprehensible manner.  But the question is always whether the tribunal thinks it more probable than not”.

103.	Misconduct
Misconduct is not defined in the 1999 Act nor is the term qualified by any adjective such as “serious” or “gross”.
In Mairs v. The Secretary of State [2004] 269 PC, the Tribunal held that, in principle, a single act of negligence could constitute misconduct but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling.
The Tribunal further held that, in the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standards of conduct expected from members of that profession and that it is not helpful to attempt to further refine “misconduct” by reference to any adjective having moral overtones.  The word “misconduct” does not necessarily connote moral censure.  An individual can be “guilty of misconduct” without being, for example, dishonest or disgraceful.
The Tribunal also said that inclusion on the list kept under section 1 of the 1999 Act is not intended to stigmatise, discipline or punish. The concern of the listing regime is to contain the risk of harm to children.  The regime identifies an unacceptable risk of harm by reference to some past misconduct plus a present unsuitability to work with children.  It is therefore neither necessary nor appropriate to limit the scope of the regime by adopting a restricted definition of “misconduct”.  The misconduct triggers consideration of the second criterion for inclusion – unsuitability to work with children.  Not all of those found guilty of misconduct will be held to be unsuitable to work with children.  A finding of misconduct of a less serious nature will not generally lead to a finding of unsuitability without more.   Conversely, an individual guilty of relatively trivial misconduct could be shown to be wholly unsuitable to work with children.
These decisions provided guidance for the Tribunal in this case.

104.	Harm
Section 12 of the 1999 Act provides that “harm” has the same meaning as in section 31 of the Children Act 1989.  That section was amended with effect from 31st January 2005 but the amendment (relating to harm caused by witnessing domestic violence) has no bearing on the issues in this case.  Accordingly, “harm” means “ill-treatment or the impairment of the health or development” of the child.  “Ill-treatment” includes sexual abuse and forms of ill-treatment that are not physical.  “Health” means physical or mental health.  “Development” means physical, intellectual, emotional social or behavioural development.
“Harm” is not the same as actionable damage.  The statutory definition enables the Tribunal to look at either the behaviour of the perpetrator or the effect on the child of that behaviour in order to identify harm or risk of harm.

105.	The weight to be given to the evidence of witnesses who do not appear and do not give oral evidence subject to cross-examination
Mr Korn submitted that no weight, or alternatively very little weight, can be given to the evidence of an “absent complainant” when (a) there is no good reason advanced for not calling him or her and (b) not calling him or her presents the Tribunal with serious and insurmountable difficulties.  Accordingly, there must, he submitted, be a presumption that an allegation of physical or sexual abuse cannot be established without the attendance of the accuser.
Mr Palmer submitted that appropriate weight can be attached to the evidence of “absent complainants” and there is no rule or presumption of the kind formulated by Mr Korn.  If there were, the Tribunal would effectively be precluded from considering any case. The Tribunal could, he submitted, quite properly make a finding of misconduct on the basis of the recorded evidence of a child witness if, for example, it had the merit of consistency, there was no likelihood of retraction, appropriate challenges had been made and there was no reason to conclude that it was either fabricated or exaggerated.

Under regulation 22 of the 2002 Regulations, the Tribunal may consider any evidence, whether or not such evidence would be admissible in a court of law.  The Tribunal has an obligation to provide a fair hearing under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.  The Tribunal is, nevertheless, entitled to evaluate the written or videotaped evidence of a witness and to give to it such weight as it merits.  An applicant does not have an absolute right, guaranteed by Article 6, to cross-examine a complainant.

Regulation 17 of the 2002 Regulations creates a presumption that child (and vulnerable adult) witnesses will not be called to give oral evidence before the Tribunal.  A child can only give evidence in person where the President or nominated chairman considers that his or her welfare will not be prejudiced by so doing and, when a child does give oral evidence, special arrangements have to be made to safeguard his or her welfare and a person with appropriate skills or experience in facilitating the giving of evidence by children must be appointed for the purpose of the hearing.

In Secretary of State for Health v. C [2003] EWCA Civ. 10, Latham LJ said:
“It is not possible to provide any prescriptive guidance as to the proper approach in any given case.  Clearly in many cases there could be a plethora of written evidence, for example following an Inquiry, when it would be wholly inappropriate for the Tribunal to be expected to re-examine witnesses.  Indeed, in very many cases the written material would be sufficient for the Tribunal to carry out its task satisfactorily.  However, when there are discrete issues as to which oral evidence could be expected, the fact that the witness has not been called will be a matter which the Tribunal must take into account when it seeks to evaluate the evidence of that witness”.

At first instance in the same case Scott Baker J said:
“Where the allegations are of … a serious nature … I can see that great difficulty may be encountered in establishing the truth to the satisfaction of the Tribunal where the complainant does not attend to have her evidence tested.  Whether the allegations can be established without attendance will depend on the particular circumstances of the case.
Where … the allegations are very serious and are challenged root and branch, the Tribunal may be placed in serious difficulty in finding this conduct established without hearing oral evidence from the complainant”.

In the Court of Appeal, Latham LJ said:
“We are told that these passages have been cited before Tribunals in other cases.  It is submitted that they create difficulties and impose too high a burden upon [the Secretary of State] in the presentation of cases to the Tribunal.  It seems to me, however, that these passages state the obvious.  The Tribunal is undoubtedly put in a difficult position if the only evidence put forward is contained in written reports and witness statements.  As I have already said, much will depend upon the particular nature of the evidence upon which the [Secretary of State] intends to rely. There may well be cases in which the written material is all that can be reasonably required and is sufficient to enable the Tribunal to come to a just conclusion. There may well be, on the other hand, circumstances in which the nature of the dispute is such that oral evidence will be necessary before the Tribunal could be satisfied that the [Secretary of State] has established his case under section 4(3) of the 1999 Act.  As I have already said, it is not possible to be prescriptive.  The nature of the Tribunal is such that it should have the appropriate expertise to be able to evaluate the quality of the evidence put before it.”

Accordingly, the Tribunal rejected Mr Korn’s submission and accepted that it would be difficult but not impossible to find the untested allegations of V and L proved to the requisite standard in the face of the applicant’s “root and branch” denials.

The issues

106.	It was submitted on behalf of the Secretary of State that:

(a)	L gave a clear and consistent account of an improper touch by the applicant and the consistency was of a high degree.

(b)	L wrote a short note at the request of her teacher in which she recorded the essential facts: (i) she had been leaning on the table because she was looking at C’s painting; (ii) the applicant came to stand behind her and put his hand on her “bum” and kept it there for a second or two and (iii) her mother and brother did not see what had happened.  The note of the conversation between L’s teacher and the social worker contained the same essential information.  There could not therefore be said to be any evidence of inconsistency between the oral and written accounts that L gave to her teacher. The statement of Miss S should not be read over-literally.  What mattered was that L reported that the applicant deliberately touched her bottom while she was leaning over to see C’s painting.  L also informed her head teacher of the incident. Again, the key allegation was recorded.

(c)	At the police interview on 21st June 2002, L’s account was given in response to open questions.  L recounted the essential elements: (i) C was painting with her back turned to her and M; (ii) M had his back turned to her; (iii) she had been sitting, but stood up and leant on the table because she couldn’t see [the painting]; (iv) the applicant stood up and moved behind her; (v) M looked round and then looked back; and (vi) that was when the applicant touched her bottom.  These important details of the incident, as they appeared to L, were wholly consistent with her initial disclosures.

(d)	Throughout her interview, L maintained a consistent account.  As to what precisely the applicant did when he touched her, L was clear. She demonstrated his touch repeatedly, and without contradiction.  It was impossible to say that L developed her account during the course of the police interview, as the applicant first alleged in his police interview.

(e)	The suggestion that the account given by L in the police interview was an embellishment of the original disclosure was based on an overly analytical approach.  There was nothing to suggest that when L first demonstrated the action she did anything differently to that which she demonstrated in the interview.  What mattered to L in her initial disclosure was that the action appeared to her to have been prolonged sufficiently to suggest it was intentional and not an accidental brush as the applicant passed. Indeed, that was the one point that L was anxious to repeat and to emphasise to her interviewers at the close of the interview: L was clear that the action had been intentional, not accidental.

(f)	L’s account during her interview was that the applicant had the opportunity to touch her bottom at a time when C and M had their backs turned to her, she was standing and leaning on the table to see her mother’s painting and the applicant moved to stand behind her. The applicant denied that those particular circumstances came together at any stage but there was substantial evidence to suggest that his evidence was untrue in this regard.

(g)	It was not necessary to suggest that C and M had their backs turned for a half hour period, as the applicant seemed to suggest.  L was clear that C and M had their backs turned. C’s account was consistent in this regard with L’s account.  M was clear that C had turned her back and he specifically corrected the police officer on this point.  M was clear that he had turned his back on L.

(h)	The applicant’s evidence that the easel was to C’s left, slightly behind but almost parallel with her, was not to be believed. The evidence of each of L, M and C was that the easel was behind C, such that C had to turn to paint with her back towards L and M.  Further, the applicant’s plan of the room showed the easel substantially behind, not slightly behind and almost parallel with C.  Although not directly behind her, on the plan it was to C’s left. The suggestion that it was to C’s left was to be contrasted with the applicant’s initial statement in police interview that the easel was “to my left”, which he repeated in his witness statement.

(i)	The precise location of the easel on the left–right axis was not determinative. What mattered was that it was set back behind C to cause her to turn sufficiently to have her back turned to her children, as both she and they described. On that basis, it was possible to see that C’s body would have been interposed in whole or part between L and the painting, obstructing her line of sight. Such an arrangement was wholly consistent with L’s and M’s accounts that in order to see the painting, L had to rise to her feet and lean forward. It was also consistent, in particular, with M’s recollection that L moved round the table slightly in order to see past her mother.

(j)	L was always clear that she was standing and leaning on the table in order to see C’s painting and her evidence made perfect sense having regard to the likely position of the easel. It was also consistent with M’s account, which was perfectly clear that L was standing and leaning to see the painting.

(k)	Much was made, on behalf of the applicant, of the fact that L did not describe herself as moving round the table to any degree in order to view the painting, while M did so describe.  It was said that the two accounts were inconsistent in this regard but they were not. L did not address the question of where she was standing. Her omission was not significant.  She was not directly asked the question and she had no reason to believe it was of any significance.

(l)	The allegation that the applicant stood up and moved to stand behind L was a feature of L’s account about which she was consistent from the outset and her account was materially supported by the recollection of her brother.

(m)	A further notable feature of M’s evidence was his recollection of turning round to the applicant and asking him if he could have a go on the whiteboard at this point. It was a recollection at the forefront of M’s account, appearing even before M had explained exactly where the applicant was at that particular point.  He always emphasised that it was necessary for him to turn round to talk to the applicant, despite the fact that up to that point they had been sitting directly opposite each other.

(n)	C’s evidence was understandably more limited as her central evidence was that she had her back turned while she was painting the picture but she specifically recalled that at one point she turned and noticed that the applicant was not in his chair. He was standing behind L.

(o)	Of particular note was L’s evidence when she exclaimed, when asked if the applicant had any reason to come and stand behind her: “I don’t know. He could see perfectly my mum’s picture from where he was sitting and I don’t know why he had to come and stand behind me.” That was not only further consistent with L’s, M’s and C’s accounts of where everybody had been in relation to the painting, it was clear evidence that in the circumstances L could only ascribe the applicant’s behaviour in touching her as being wholly deliberate.

(p)	The three essential elements of L’s account of how the applicant had an opportunity to and did touch her bottom were substantially supported by M and C. Although the applicant suggested in his witness statement that there was insufficient time for him to have carried out the touching of which he was accused, that suggestion was obviously unfounded and was not pursued at the hearing.

(q)	Further support to L’s account was given by events after the touching had taken place – both immediately after, in the manner in which the disclosures were made, and in L’s evident distress over the incident stretching some weeks and months after that.  L’s initial reaction (to do nothing as she was in shock); her immediate reaction after the sense of shock (wanting to be out of the room); her moodiness on the way home; her quiet demeanour that night; her protestation the next day on the way to school (“Please mum, don’t make me go back there.”) all supported her account.  C stated that L had never been like this on previous occasions despite her expressed dislike for the applicant.

(r)	The converse proposition (that from start to finish L was engaged in a detailed and sustained fantasy or simulation) was extremely difficult to believe. One would have to believe that, before she made her first disclosure, L constructed a carefully designed account artificially to create a scenario in which the applicant could have had the opportunity to touch her without M and C noticing. One would also have to believe that the essential elements of that story were in place by the morning following the incident. One would further have to believe that L was then able to induce or persuade M and C to believe that they too had witnessed key elements of that account and that there had indeed been an occasion when she had stood leaning on the table while C was painting and both her and M’s backs were turned, and the applicant stood up and moved to stand behind her – even though the reality was (if the applicant’s account were to be accepted) that such a set of circumstances simply never occurred. It was too much to accept that a girl of 11 could have behaved in this fashion.

(s)	The position was strengthened by the fact that there was no record of L making false allegations previously.  The applicant referred to L’s history of conflict with her brother and suggested that she had previously told untruths, getting him into trouble. If such a history of behaviour was a particularly strong feature of L’s behaviour and had been, throughout the relevant period, known to the applicant to be so, it was odd that he did not say so to the police or in his disciplinary interview or disciplinary hearing.  Even if (as was now claimed) the matter had been raised on the appeal, it was odd that it was not raised earlier. There was no record of it in the documents. Even taking this suggestion at its highest, it extended only and specifically to the nature of L’s relationship and conflict with her brother, who was known to hit her. It was no reason to believe that L would have made a sustained, false allegation against a professional or singled out the applicant and made an allegation about him.

(t)	L was described as a “delightful youngster” by Dr Yee; as a “delightful child” by her head teacher; as a “wonderful girl with no previous history” by her school and as a child who did not lie by her mother.  It was notable that – even after the allegations had been made – those who knew L had had the opportunity to suggest that she was capable of making up such a story but had failed to do so.

(u)	The applicant’s suggestion that L had felt ignored and ridiculed in the session on 18th June 2002 and so had reacted by inventing the allegation, presumably in an attempt to draw attention to herself, should be rejected as far fetched. There were simpler ways for L to have drawn attention to herself, not least during the session itself. The suggestion that she quietly reacted to a sense that the applicant was ignoring her or complicit in laughing at her “baby voice” by nursing the grievance overnight and into next day and inventing and directing an allegation against the applicant (rather than M) was improbable in the extreme.

(v)	There was no reason to believe that L’s account was contaminated by the fact that Ms Usher drove L and C to the police station for the interview because Ms Usher responded appropriately to the request for information about other allegations against the applicant.

(w)	There was no cause for concern that C was in the video suite before the interview with L commenced.  She was obviously there to provide reassurance to L but was asked to leave before the interview began.

(x)	The suggestion, made at the outset of the hearing, that L could have been influenced by the fact that an allegation of touching was later made against M’s social worker (“Charlie”) was demonstrated to be groundless.

(y)	The touching of L was self-evidently improper behaviour. It was misconduct which caused harm or risked causing harm within the meaning of section 31 of the Children Act 1989, as it constituted “ill treatment”.  It further constituted treatment which did impair or risked impairing the emotional, social or behavioural development or mental health of L.

(z)	It was not necessary for this purpose to go so far as to categorise the applicant’s action as being “sexual abuse”. Once it was accepted that the incident happened and could be classed as misconduct, the real question was how it was perceived by L, rather than what the applicant intended by it.

(aa)	V’s account of improper touching by the applicant was supported by her mother, although the manner in which she reported the hair touching differed.

(bb)	When the applicant was interviewed on 11th February 1998, he did not deny or admit any of the allegations.  He said that he might have touched V’s hair and navel but he could not recall doing so.  The applicant’s first reaction when faced with the specific allegations was to explain his style and that he was not opposed to touch. He did not distinguish between the account of hair touching (which he now admitted) and the account of belly touching (which he now denied).

(cc)	Ms McLaughlin’s conclusions were obscurely stated.  Only her conclusion on the tummy touching was now relevant.  It was difficult to interpret the finding but the only sensible reading was that she found that the touching took place but did not consider it to be inappropriate. The clear inference from this was that, at the time, the applicant’s position was that he might realistically have touched V’s tummy as described and considered there to be nothing wrong if he had.

(dd)	In her interview, V gave a clear account of being touched on the belly. The initial reference to the applicant “going a bit close” was to be read in the context of both her earlier account and her later one.   It was plainly a euphemism used by a girl ill at ease in the context of a formal interview. She unambiguously described physical contact in the same interview.  It was nonsense to suggest that in doing so she was somehow contradicting herself and had meant only at first to describe a “near miss”.

(ee)	V’s account in her interview of poking and asking the applicant to stop plainly went beyond what she was initially prepared to disclose to Ms McLaughlin. There were three possible explanations for that: (i) she was simply giving more detail as to what happened; (ii) she was consciously or unconsciously embellishing her account but leaving the kernel of the account – that she was touched on the belly – true and (iii) she was making it up from the outset.  While it might be difficult for the Tribunal to find that the touching actually happened as described by V in her interview (as her account was not put to her mother for her comment and that part of her account was uncorroborated) there were equally powerful reasons why it could not be said that the third possibility (untruth from the outset) was the most likely explanation.  It failed to take account of the fact that V’s mother raised the complaint at the outset and provided Ms McLaughlin with a consistent account of what had happened and it failed to take account of the applicant’s reaction when the allegations were first out to him, which was a long way short of a denial.

(ff)	Whether or not it was true that the applicant intentionally touched V on the belly in the fashion described in V’s account given during the interview, the very act of touching V in this manner was inappropriate and constituted misconduct causing or risking harm to her.

(gg)	The applicant’s response to the touching allegation was not consistent.  It appeared that his memory hardened over time to the point where he considered the possibility of having touched V to be no more than conceivable.

(hh)	The applicant’s initial position (and Ms McLaughlin’s apparent conclusion) that such touching could be considered to be appropriate was to be heavily criticised. Such touching, even if not intended to be sexual, was at very great risk of being misinterpreted by a child as being sexual.

(ii)	The applicant’s explanation of his approach to touching (given in response to the allegations relating to J) was illuminating.  It was not taken out of context.  It was a clear account that the applicant considered it appropriate to touch a child (even a sexually abused child) in a fashion that went far beyond the ordinary limits. The applicant’s view was not shared by Dr Horne.  It was not an approach condoned either by Martha Straus or by Daniel Hughes. Nor was it an approach which was in any way mitigated or explained by the fact that the applicant had a disagreement about the appropriate form of supervision with which he should be provided by his employers.

(jj)	By reason of his misconduct, and in particular of the misconduct concerning L, the applicant is unsuitable to work with children. Of particular concern in relation to L was the evidently sexual nature of the touch, the covert manner in which it was undertaken and the applicant’s refusal to acknowledge his own actions.  Of concern in relation to V was the fact that the applicant was prepared to touch a child in an intimate area of the body, despite knowing that there were strong suggestions of earlier sexual abuse and without having any clear understanding of the likely result or of the perceptions of the child.

(kk)	Much character evidence was given in support of the applicant but it was far from clear that those who gave it were familiar with the nature of the allegations and they were certainly not aware of the nature of the evidence against the applicant.

107.	It was submitted on behalf of the applicant that:

(a)	He did not touch L’s bottom on 18th June 2002; alternatively, the Secretary of State had not proved that he did.  If he did touch L’s bottom, this touching did not constitute misconduct which harmed L or put her at risk of harm.

(b)	The applicant did not touch V on the navel; alternatively, the Secretary of State had not proved that he did.  Such touching of the navel as did occur in 1998 (none being admitted) did not constitute misconduct which harmed V or put her at risk of harm.

(c)	Whatever the Tribunal’s findings as to whether or not the touchings occurred and whether or not they constituted misconduct which caused harm or risk of harm, the Secretary of State did not establish that the applicant is unsuitable to work with children.

(d)	Even if there were no evidence of inconsistency in the accounts given by L and V, no evidence that the investigation into their complaints by the local authority was flawed and no reason to disbelieve them based upon entries in the files (i.e. even if the Tribunal found that the Secretary of State’s evidence on paper was immaculate and unimpeachable) the Tribunal should not find the complaints proved because, without some factor which might serve to distinguish the case as “exceptional”, the absent complainant can never succeed in establishing the truth of his or her complaint.

(e)	To deny a defendant the opportunity of cross-examining his accuser is to deny him a fundamental and basic right. The evidence contained in a statement (or in the transcript of interview), whether it is in the context of a criminal or civil case, has no status until it has been tested. The allegations contained in the statement remain as mere allegations and are not proved until tested and accepted.

(f)	It is very rare that allegations made on paper remain unscathed by cross-examination.  In common with analogous situations in both the civil and criminal courts, no weight should be given to the girls’ accounts without their attendance at the Tribunal to give their evidence and be cross-examined.

(g)	Even though the Tribunal has a very wide discretion to admit evidence, it should not take a different approach from the civil/criminal court as to the weight to be given to contested evidence admitted in paper form. The principles applied by the civil/criminal court are sound and based on experience and aim at doing justice.

(h)	To perform the exercise of considering L’s and V’s paper accounts and seeking to weigh them in the balance against the applicant’s account would be to go wrong in the same way as Mr Power did in the disciplinary hearing.

(i)	The Tribunal could only resolve any inconsistency in the written evidence by speculating and this practical difficulty was insurmountable.

(j)	There might be many reasons why a child might say that a touching occurred when it did not, including: (i) an honest mistake; (ii) a deliberate untruth for the purpose of getting attention; (iii) malice (dislike of the person and a wish to get him into trouble); (iv) a desire to avenge perceived injustice; (v) an overactive imagination; (vi) translation of sexual fantasies into realities; and (vii) influence by other children.  This was not an exhaustive list.

(k)	The applicant was an honest witness, doing his best to assist the Tribunal with facts and matters within his knowledge.  Such discrepancies as the Tribunal might find between his written accounts (statements and interview) were trivial and did not affect the credibility of his account.

(l)	There were a number of problems with accepting L’s interview account at face value:
(i)	she gave different accounts at different times to different people;
(ii)	her account of pushing back her chair and the applicant coming to stand behind her was (a) not compelling and (b) inconsistent with M’s statements in interview (that he was sitting down looking at his mother’s picture and his sister had got up to come and stand behind him and the applicant had come and stood behind both of them);
(iii)	the inconsistency between L’s and M’s accounts led to the inference that L’s account of her standing up at her seat and the applicant coming to stand behind her was fabricated or mistaken because it would have been remembered by her brother if it had happened;
(iv)	there was evidence of contamination of evidence: L’s family knew that there was a previous incident involving the applicant before they had spoken to the police; there was a conversation between C and the social worker in front of L on the way to the video suite on the subject of a previous complaint against the applicant; by the time M was interviewed he knew of the earlier complaint against the applicant;
(v)	L’s motivation in making the complaint against the applicant was to get him in trouble:  she did not like him (as both she and M said) and the applicant, in his interview, rightly suggested that L had felt ignored or put out by the fact that she was not the focus of the meeting;
(vi)	there was evidence of manipulation or distortion of the event by C in her conversation with the social worker on 1st July 2002;
(vii)	L rubbed her arm until it was red and blamed her brother for it: this was extreme behaviour and not normal;
(viii)	L came from a family which had its problems: the whole family had been referred to the Centre for help; L’s files repeatedly revealed tensions within the family; there was a rivalry between L and M for their mother’s affections and Ms Usher referred to “emotional abuse within the family” and gave an account of such abuse on 1st July 2002.
(m)	L’s account had no internal consistency, was not consistent with the accounts of others and, when viewed in the light of information from her file as to the family’s problems, the Tribunal could have little confidence that it was true.
(n)	V’s 2002 interview account should not be accepted at face value because: (i) she gave different versions of the event to different people at different times; (ii) in her interview with the police in 2002, she gave several different versions of what happened so that no consistent account emerged from the interview; (iii) her 2002 account differed significantly from her 1998 account; (iv) the original complaint came from V’s mother, who was not interviewed at all in 2002; and (v) V’s files revealed that she was a troubled girl with a history of making accusations against others of a sexual nature: she had troubles of an extreme nature at home and at school; she was first referred to the Centre 1992 and her problems worsened from that time; concerns were expressed by V’s teachers about her propensity to accuse adults of inappropriate sexual behaviour.
(o)	The 1998 complaint should not have been re-opened in 2002.  Ms McLaughlin did a very good job and reached conclusions which were fair and correct.
(p)	At its height (i.e if the touching occurred exactly as V described it in 1998) the allegation did not amount to inappropriate behaviour.
(q)	There was no good reason for the local authority’s decision to re-open the 1998 complaint.  It clearly had to do with the 1993 video but Mr Carruthers and Mr Power were unable to explain the significance of that video. Their attitude to the 1993 video demonstrated bias or unfairness to the applicant and illustrated that the investigation had become an “unstoppable juggernaut”.  The investigation and subsequent disciplinary hearings were flawed and biased against the applicant and there was a gross overreaction to the number of videos of therapy sessions retained by him.
(r)	The applicant should never have been put in the position of having to prove a negative and, having been put in that position, there was nothing that he could have said or done to prove his innocence.  The applicant was put in that position by Mr Carruther’s “fundamental principle” that children should be believed. The disciplinary proceedings carried out by the local authority were therefore grossly unfair to the applicant.  Finding the allegations proved on the sparse evidence at the hearing was perverse.  The girls’ files were not available and there was no expert evidence as to the level of touching that might be therapeutically appropriate.  Thus, Mr Power found the allegations proved in an evidential vacuum.
(s)	Categorising the applicant’s actions as “indecent assault” and “sexual abuse” without adducing evidence as to (i) motive and (ii) harm was disgraceful.
(t)	In the event that the Tribunal found either or both of the allegations proved, neither event constituted misconduct which caused harm or risk of harm.  Mere injury to feelings, demonstrated by emotions such as embarrassment, indignation, awkwardness or uneasiness, was not “harm”. “Harm” had to be lasting and, at least in some sense, significant.  “Harm” had a meaning close to (but not synonymous with) “damage”.
(u)	The applicant proved, on the balance of probabilities, the absence of “harm”.  In the absence of evidence on the point, the Secretary of State’s approach had to be that it was self-evident that a touch on the bottom or tummy created a risk of harm but that was incorrect.
(v)	The Secretary of State did not discharge the burden of proving the applicant’s unsuitability.
Conclusions and reasons
Having carefully considered all of the evidence given and the arguments presented at the hearing and the witness statements and other papers submitted in advance, the Tribunal came to the following conclusions:
108.	The Tribunal was not satisfied that, on 13th January 1998, the applicant intentionally touched V on or around her navel during the course of a counselling session, thereby harming her or placing her at risk of harm.
109.	The principal complainant was not V but her mother. The Tribunal was able to glean, from the extensive files, that V’s mother had many difficulties and failings.  She had learning difficulties, apparently general rather than specific.  In 1993, during the recorded therapy session seen by the Tribunal, she was unresponsive and appeared to lack understanding.  In 1995, she insisted, unconvincingly, that she had not exposed her daughter to any inappropriate sexual activity.  She had partners who were known criminals.  Her young daughter was frequently away from home at night and she was unaware of her whereabouts.  In 1995-6, she sent her daughter to school and to a play scheme “unkempt and unwashed”.  In 1997, she reported to the Social Services that V was beyond her control and asked them to accommodate her.  In these circumstances the Tribunal could have no confidence that, had she given evidence, V’s mother would have been a convincing witness.
110.	V’s mother did not complain until 6 days after the alleged incident.  Her greatest concern, as conveyed to Ms McLaughlin, was the atmosphere that she perceived the applicant had created by his actions towards V, which she judged to be of the kind that a man might undertake towards his sexual partner.  However, V’s mother did not appear to be a woman who was able to make good or balanced judgments.  On the contrary, she was a woman who might easily have formed an entirely subjective and false impression.
111.	The applicant himself noted that “in terms of the feeling, content and process the session was a little strange”.  V’s mother could well have perceived that the atmosphere during the session was unusual and different and could, quite wrongly, have translated this into an atmosphere of impropriety.
112.	There were many discrepancies between V’s mother’s account and that given by V.  V’s mother did not allege, at first, that the applicant had actually touched her daughter’s navel but only that he had tried to do so.
113.	The Tribunal was placed in the difficulty referred to by Scott Baker J (as he then was) and Latham LJ in Secretary of State for Health v. C by the fact that V’s mother was not called to give evidence, notwithstanding that she was an eye-witness and the original complainant.  Indeed, in 2002 she was not even asked to provide a written statement of her evidence.  There was no explanation for her absence.  She is an adult, though possibly a vulnerable adult.  The inference to be drawn was that she would not have been able to explain the inconsistencies in her account and that of her daughter and would have generally been unable to sustain her case in the face of proper probing of her evidence.
114.	V was obviously a potentially unreliable witness.  She was variously described as “an attention seeker who had to be the centre of everything”, “flirty and manipulative”, “casually destructive”, “bright and mentally agile”, prone to “deny liability for incidents even when her involvement had been observed”, “manipulative and upsetting”, “needy and vulnerable”, “dishonest, verbally abusive and rebellious” and “in a constant state of verbal and physical hostility”.  She falsely accused her teacher of sexually abusive behaviour.  There was widespread concern that adults should not be alone with her because she made false accusations.  She frequently made demands for adult attention; used sexually explicit and offensive language; was constantly disobedient and had “inner conflicts and tangled emotions”.  She asserted that the reports made about her by her school were untrue when they obviously were not.   She sometimes behaved in an extreme way, in an apparently deliberate attempt to shock and provoke.  After January 1998, she continued to make false allegations against adults with whom she had contact, including her taxi driver.
115.	Furthermore, retrospective examination of the relevant files revealed a gross failure on the part of the responsible authorities to protect V or to provide effective support for her mother.  As a result V became extremely anxious, sexualised and vulnerable. In these circumstances, it was likely that V developed and retained a distorted and adverse view of everyone whom she perceived to be in a position of authority.  It was therefore highly possible that she might misinterpret or exaggerate behaviour directed at her and understandable that, when presented with the opportunity to do so, she might seek to cause difficulties for any such person, including the applicant.
116.	The account given by V to Ms McLaughlin was not the same as that given by her mother.  V said that she was sitting beside her mother when the applicant “put his finger into the gap” and “touched her belly button”.  She also said that the applicant had later followed her to the window; commented on her “beautiful hair” and touched it.  V’s mother, on the other hand, alleged that the applicant had touched V “throughout the meeting”, starting by touching her arm and then becoming “more personal”.  She said that the applicant had stroked V’s face and run his fingers through her hair.  Only in response to a question from Ms McLaughlin did V’s mother say that the applicant had put his finger through a gap in V’s blouse and had pointed out that she had a button missing.  She could not remember whether this was before or after the touching of her hair.
117.	The applicant did say to Ms McLaughlin that he was “not opposed” to the idea of touching children during therapy but he emphasised that any touching must be appropriate, such as placing a hand on an arm or shoulder by way of reassurance or guidance back towards a parent at the end of a session.  The applicant recalled that he was pressed by Ms McLaughlin to say whether or not it was conceivable that he might have touched V’s navel and he eventually conceded that this was “not inconceivable” but that was the extent of his concession.  Thus, the Tribunal was unable to accept Mr Palmer’s submission that the applicant, in effect, admitted the touching alleged while maintaining that it was not improper.
118.	The account given by V when she was interviewed, nearly 4½ years after the event, was unconvincing.  She began by recalling that the applicant had come too close to her for comfort; attempted to warn her interviewers that her recollection could not be relied upon and, when invited to be specific, gave an embellished account of actual touching that was neither consistent with her previous account nor inherently credible.
119.	The Tribunal was therefore not satisfied by the evidence that the applicant went any further in his dealings with V on 13th January 1998 than he admitted.  The comments and gestures that the applicant made were probably “tasteless” (as he described them).  They were also misplaced and foolhardy, having regard to V’s history of risky and sexualised behaviour and her propensity to indulge in angry protest and false reporting.  His attempts to ingratiate himself with V were open to misinterpretation and therefore very unwise.  However, his actions, though ill-judged, fell short of misconduct.
120.	Secondly, the Tribunal was not satisfied that, on 18th June 2002, the applicant intentionally touched L’s bottom during the course of a counselling session, thereby harming her or placing her at risk of harm.
121.	L did give a consistent account of having been touched improperly by the applicant.  This gave rise to a worrying suspicion and caused the Tribunal considerable concern.  However, L’s consistency when making her allegation could not be regarded as conclusive.
122.	The Tribunal accepted Mr Palmer’s submission that it was impossible to say that L developed her account during the course of her police interview, as the applicant first alleged.
123.	The accounts given by L, M and C (in so far as she gave a detailed account) were broadly consistent but there were some important inconsistencies, to which Mr Korn properly drew attention.  If L, M and C had given completely consistent accounts before they had had any opportunity to discuss the matter, this would have been a highly persuasive factor.  However, M did not give his account in the videotaped interview until 3 months after the event (on 19th September 2002).  C did not give her written account until 5th September 2002 (11½ weeks after the event).  There was evidence that L, M and C had discussed what had or had not happened frequently, or even incessantly, in the intervening period.  Accordingly, the weight to be attached to the consistency of their accounts was not great.  Further, C said to Ms Usher that “it all made sense with the benefit of hindsight”.  This led to the suspicion that M and his mother might have started with the hypothesis that L’s allegation was true and had then selected and refined their recollections accordingly.
124.	There were, as Mr Korn argued, several reasons why L might have invented the allegation against the applicant.  She might have done so simply because she disliked the applicant; found him disconcerting and wanted to get him into trouble.  More plausibly, she might have sought to gain the attention of her mother, which she had singularly failed to give to her ever since the distressing breakdown of her marriage.  She might have sought to persuade her mother to take up a cause on her behalf rather than constantly to criticise and berate her.  She might have made a false allegation to persuade her mother not to require her to experience further humiliation and discomfort in therapy sessions with the applicant.  C had displayed an apparent determination to return to the applicant with her children for further therapy despite L’s protests.
125.	The report made by Dr Yee in March 2000 was instructive. She did, as Mr Palmer highlighted, describe L as “delightful” but she also recorded that the children “played up all the time”.  The problems referred to by Dr Yee were still present when the family saw the applicant in 2002.  Thus it appeared that, for 2 years and more, L and M had experienced significant unhappiness, conflict and confusion at home.  It was difficult to say how this might have affected their ability to make reliable judgments and reports.
126.	Mr Palmer correctly submitted that there was no record of L making false allegations.  However, there was clear evidence from the applicant that L had previously made false allegations.  This was not contradicted by, and was consistent with, earlier written reports.  The applicant pointed out, with considerable force, that, if C had been called to give evidence, she would have confirmed that she had frequently been placed in the position of being unable to determine which of her 2 children was telling the truth.
127.	L, M and C might well have discussed the matter at some length before L was interviewed on 21st June 2002.  In her answers to some questions L appeared to be echoing words that her mother would probably have used. Those investigating the allegation, for obviously good reasons, asked C not to discuss the matter with her daughter before her interview.  However, there was evidence that C did not follow that instruction or advice.  Such a failure would have been consistent with her past behaviour.  C was apparently quite unable to avoid discussions with her children about matters that she should have protected them from rather than involved them in.
128.	L’s immediate and subsequent reactions were, as Mr Palmer argued, consistent with truthfulness on her part.  However, this was not conclusive.  The evidence was equivocal and untested.  L’s reactions were equally consistent with subsequent fabrication.  She did not complain immediately.  This may have been because she was shocked and embarrassed but it may equally have been because nothing untoward had happened.  L was moody and quiet during the evening.  This may have been because she was distressed at having been touched but it may equally have been because she had been belittled and/or ignored.  L protested that she did not wish to see the applicant again.  This may have been because she had been touched but it may equally have been because she had found this and previous sessions distressing, because of the behaviour of her mother and brother.  L was seen, on the morning of 19th June 2002, to be “gossiping” with her school friends.  This could have been because L friends were trying to encourage her to disclose the truth but it could equally have been because they were conspiring together to devise a conclusive way of overcoming C’s apparent reluctance to bring the course of therapy to an end.
129.	  After she had made her disclosure, L became disproportionately distressed, agitated and antagonistic towards the applicant.  This was difficult to understand and/or interpret but was not necessarily consistent with truthfulness. 
130.	When the accounts of L, M and C were subjected to close analysis, the position taken up by C and the way in which she turned away from her children became matters of considerable significance.  There was a fundamental conflict of evidence about these matters.  The Tribunal was driven to speculation.  Mr Palmer’s careful and able analysis could have been correct.  However, it was equally possible that, in his desire to support his sister and to emphasise that the applicant had had no good reason to move other than to fondle L illicitly, M had given a false account.  Suspicion arose because, at the end of her interview, L emphasised that the applicant could see perfectly from where he was sitting and therefore had no reason to come and stand behind her.  L was anxious, as Mr Palmer noted, to repeat and to emphasise to her interviewers that the applicant’s action had been intentional, not accidental.  This (and several other observations made by L) appeared to be rationalisation rather than recollection.
131.	The submission that applicant’s evidence about the position of the easel was inconsistent and therefore not to be believed was not well founded.  The applicant did say to the police that the easel was to his left.  It was in that position.  He was not asked to say on which side of C it was situated.
132.	There was a fundamental conflict of evidence about the way in which L behaved when the therapy session reached its conclusion.  L, M and C all gave accounts that were consistent with L having been touched and being anxious to get away.  The applicant said that he did not recognise these accounts and that they were falsified or distorted.  The applicant was cross-examined and adhered to his account.  The accounts given by L, M and C were neither amplified nor tested in oral evidence and, as they stood, they were not consistent.
133.	The detailed analyses undertaken by counsel for both parties were ultimately unsatisfactory.  It was a matter of pure speculation as to what the outcome would have been if L, M and C had been subjected to cross-examination and these matters had been put to them.  The Tribunal was thus placed in very serious difficulty.  While no significant criticism could reasonably be made of the Secretary of State’s representatives for their failure to tender the children for cross-examination, their failure to call C to give evidence was less easy to understand and/or explain.  C is an apparently competent adult.  There was no explanation, and no obvious reason, for her absence.  Her written statement was not all that could reasonably have been required of the Secretary of State.  Her untested evidence was not sufficient to enable the Tribunal to come to a just conclusion. The nature of the dispute between the Secretary of State and the applicant was such that some oral evidence from at least one of the witnesses was necessary before the Tribunal could be satisfied that the Secretary of State had established his case.
134.	In the end, the Tribunal found itself unable to exclude the plausible theory that L had, for some reason, fabricated the allegation against the applicant, as she had previously fabricated allegations against her brother.  The Tribunal was also unable to exclude the possibility that L might have been unwittingly supported and encouraged by her brother and/or her mother to make a false allegation more plausible.  The Tribunal could not be satisfied that it was more probable that the applicant indecently assaulted L than that he did not do so.
135.	The Tribunal accepted Mr Palmer’s submissions that the alleged touching of L was self-evidently improper behaviour; that it was misconduct which caused harm or risked causing harm within the meaning of section 31 of the Children Act 1989, as it constituted “ill treatment” and that it further constituted treatment which did impair or risked impairing the emotional, social or behavioural development or mental health of L.  However, the Tribunal was not satisfied that the applicant touched L as alleged.
136.	The applicant described his therapy sessions as “quite relaxed” and “informal”.  Others might fairly have described the same sessions as “unstructured”.  The selected videotapes revealed that the applicant was disorganised and chaotic.  To this extent, the Tribunal found it difficult to accept the evidence of those who attested to his skill as a therapist.  The Tribunal was particularly concerned about the applicant’s expressed views in relation to the use of touch therapy with fostered or adopted children.  However, the extensive “character evidence”, adduced on behalf of the applicant from his former colleagues and clients, did serve to remove completely any thought that he might have had a propensity to act from a sexual motive during therapy sessions or might have had a reputation for dubious behaviour.  The evidence established that the applicant was regarded with approval.  
137.	While acknowledging as soundly based Dr Horne’s view that video evidence showed that the applicant did, on one occasion at least, act in a manner that was “anti-therapeutic”, the Tribunal did not accept that it could properly be deduced from this evidence alone that the applicant was “pursuing an agenda with these children that was his own and not based on their needs”.
138.	The applicant’s responses and observations during his “suspension interview” were not only “unfashionable” but were worryingly controversial and alarmingly unsound. However, the Tribunal recognised that the applicant presented his theories specifically in response to the allegations arising from his therapy session with J, which the Secretary of State subsequently decided not to rely upon as evidence of misconduct on the part of the applicant that harmed a child.  His responses were not, as Mr Palmer argued, a clear account that he considered it appropriate to touch a child (even a sexually abused child) in a manner that went far beyond the ordinary limits.  The applicant fully recognised the validity of the widely accepted view but, for reasons which were not easy to understand, sought to suggest that this view should be the subject of further debate.  In the circumstances in which he found himself, this seemed to be a risky exercise.  The Tribunal was surprised by this but not persuaded that it lent any weight to the contention that the applicant was guilty of the misconduct alleged.
139.	In summary, the Tribunal was not satisfied that the applicant was guilty of misconduct which harmed a child or placed a child at risk of harm and was therefore not satisfied that the applicant is unsuitable to work with children.  The Tribunal therefore decided to allow the applicant’s appeal.
140.	The decision of the Tribunal was unanimous.

Order
The applicant’s name shall be removed from the list kept under section 1 of the Protection of Children Act 1999.

31 March  2005

Signed:	
John Reddish (Chairman)
Elena Fowler
Pat McLoughlin