AW v The Secretary of State for Education and Skills  [2004] EWCST 411(PC) (11 July 2005)

BETWEEN

AW

-V-

THE SECRETARY OF STATE FOR EDUCATION AND SKILLS

[2004] 0411.PC

-BEFORE-

MR I ROBERTSON (Chairman)
MS M HARRIS
MR J BLACK

Sitting at the Care Standards Tribunal on 22 and 24 June 2005 

Mr W appeared in person

Mr R Palmer (Counsel) for the Secretary of State

Majority Decision: Appeal allowed and a direction made under s.4c3) that Mr AW’s name be removed from the Protection of Children Act List.

1.	This is an appeal brought by Mr W under S4(3) Protection of Children Act (POCA) against a decision taken by the Secretary of State on 1 September 2004 to include his name on the list maintained by the Secretary of State under S1 of POCA. There was a simultaneous appeal against inclusion in the Protection of Vulnerable Adults (PoVA) list but by letter dated 9 June 2005 the Secretary of State withdrew his opposition to the PoVA appeal and that appeal was formally allowed by decision of the President (His Honour Judge David Pearl) on 9th June 2005 and his name removed from the POVA list.
 
2.	The Appellant made an application at the outset for an order restricting reporting under regulation 18 of the Tribunal Regulations. We agreed to the making of such an Order to protect the Appellant’s private life. In the light of the findings we have made we make a further order restricting or editing this decision under Regulation 27  to protect the identity of children who the Appellant has worked with and the Appellant himself.

THE FACTS 

3.	The Appellant is a social worker who has worked in social care with children for nearly 30 years. He has worked for Local Authorities and latterly in the private sector in the field of permanency, in particular fostering. He worked for the referring agency for 5 years until his “resignation” in May 2003. We say from the outset that all we have heard indicates that throughout his career the Appellant has been highly thought of, his work has been consistently praised and his expertise valued. We have seen a number of testimonials to that effect and we have absolutely no doubt that he has a record to be proud of.
 
4.	In November 2001 Ms M joined the agency as a senior social worker. She formed a close relationship with the Appellant and towards the end of 2002 he asked her to go on holiday with him.  The Appellant indicated that first of all he had to tell her something. They met up a few days later and the Appellant told her that he had never had a sexual relationship, was averse to physical contact and that he could not give her what she wanted. He told her that he was a “paedophile”. He said he meant this in the literal sense of the word – “lover of children”.  He was interested in pre-pubescent beautiful boys. He also talked of his desire to be a father. He said that he never acted on these feelings had never for example accessed child pornography though he would have liked to. His masturbatory fantasies were not of young boys but of himself as a young boy being humiliated by his mother. He talked of a long term friendship had with a woman and how his relationship with her son was more important to him. He said he was aware of how damaging sexual abuse by an adult could be to a child and said he felt only love towards children and did not wish to harm them. Ms M was very supportive of the Appellant and went on holiday with him. She had discussions with him on holiday and when she came home became increasingly uncomfortable with the information she found herself in possession of. This, coupled with a very heavy case load led her to take sick leave during which she pondered her actions. In the event, some 5 months after the disclosure, she gave the Appellant an ultimatum that he tell the agency or she would. The turning point for Ms.M was when she overheard the appellant flirting with a female colleague and as a result of some disquiet she felt after a discussion involving his support of a young boy involved in an indecent assault upon a young child.
 
5.	On 1 May 2003 he met the agency’s director and told him about his feelings. As a result of this he resigned. The agency then made a referral to the Secretary of State under POCA (although this appears to have taken nearly 9 months) and on 16 March 2004 the Appellant was notified that he had been provisionally included on the list and his observations were sought. As indicated above inclusion was formalised on 1 September 2004 and Mr W appealed against this on 3 December 2004. It is this appeal that we are now considering.

THE LAW 

6.	 S4 Protection of Children Act 1999

(1)	An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under Section 1 above may appeal to the tribunal against-

(a)	the decision to include him on the list, or
(b)	with the leave of the Tribunal any decision of the Secretary of State not to remove him from the list under Section 1(3) above

(3)  If on an appeal or determination under this section the Tribunal is not satisfied of either the following, namely-

(c)	that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm; and
(d)	that the individual is unsuitable to work with children,

the Tribunal shall allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individuals inclusion on the list.
7.	The Definition of harm is that set out in S31 (9) Children Act 1989

(9)	In this section –

"harm" means ill-treatment or the impairment of health or development [including, for example, impairment suffered from seeing or hearing the ill-treatment of another]; 

"development" means physical, intellectual, emotional, social or behavioural development;

"health" means physical or mental health; and 
"ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical.

8.	It is clear from a proper analysis of this that there are three elements to our decision making. First we have to find misconduct; secondly we have to find that misconduct has harmed or is likely to harm a child and thirdly that the Appellant is unsuitable to work with children. Only if all three elements are present may we dismiss the appeal. The onus is upon the Secretary of State to satisfy us and the appropriate standard of standard of proof is the civil test of the balance of probabilities. We have been referred to a number of decisions on this issue and we will return to these later.

THE EVIDENCE

9.	The Secretary of State called three witnesses. The first was Ms M. We found her to be an honest and compelling witness. It was clear that she found it painful to give evidence against the Appellant and that she still had considerable feelings for him. She clearly struggled with her loyalty to him and her wider duty to the profession.  Mrs M elaborated upon her statements in a number of ways. She had tackled the Appellant on the question of attraction and he was clear to her that a child had to be beautiful, physical attraction was important. As an example of this he gave her the name of a child who the agency was working with although she did not personally know him. She confirmed that she had never had any concerns before the conversation and nor had there ever been concerns or rumours expressed by others about the Appellant. She said in answer to a question from Mr W. “I believed you when you said you had never harmed a child but I find it hard to understand when you have this attraction that you chose to work in this sector”. She said she tried to help him get counselling but he did not want this. He did not want to change at this stage in his life.
 
10.	The next witness was Mr L, the Director of the agency. We did not form a favourable picture of him. It appeared to us that as soon as he knew about Mr W’s feelings he could not act quickly enough to get rid of him. We find that he did leave the Appellant with no alternative but to resign and we do not feel that any attempt was made to explore issues with him or offer any support or guidance or undertake a risk assessment. We can find no evidence that the agency looked at any of its own cases to assess whether any child protection issues arose nor did they contact other agencies or bodies for this purpose. The question of referral to the Secretary of State was also unclear and we were left with the clear impression that the agency would have liked the Appellant to go away and that but for his pushing the issue no referral would have been made.

11.	Nonetheless the Appellant did reconfirm to Mr L the same matters that he had to Ms M. He did however discuss a situation some years before when he had invited a boy into his house who had been cleaning his car. The boy started playing with his crotch and he felt aroused by this and got the boy to leave. The Appellant cited this as an example of a situation that could have progressed but did not and how this showed that his defence mechanisms worked. 

12.	In a letter that the Appellant wrote to the agency in late 2003 he described this incident as follows; 

“I foolishly talked to Johnny about my one and only attempt to seduce a boy (N). Not only could I not do it so overwhelming was my guilt, but it brought home to me that I could have been responsible for causing great harm to a child, and ever since then I have redoubled my efforts to ensure I do not put myself in that position again”

13.	The Secretary of State’s final witness was another worker from the agency, Mr K. Again we did not find him a good witness and place no reliance upon his evidence save where it accords with the evidence of Mr W. which was ultimately corroborative of much that was said.
 
14.	Mr W. then gave evidence himself. There is no doubt that he was severely hindered by not being represented (we will touch upon this later).  He presented his case coherently with great moderation and courtesy. He was assisted by his brother who sat with him throughout. We found his evidence a bit of a paradox. He was at pains to express his honesty and yet it appeared to us that at times he was keen to downplay matters and diminish their importance. The issue for the Tribunal was whether this was the result of his own ingenuousness and the fear brought about by the proceedings or whether there was an element of calculation in the approach he took.

15.	He took issue with Mr L’s original account of the sequence of meetings and how the circumstances of his resignation occurred. We are clear that he did not get support from his agency who wanted to be rid of him. He confirmed that he formed a relationship with Ms M but realised he could not reciprocate in an intimate way. He said that he did not want to lead her on, which is why he told her of his feelings. He described his relationship with R, the son of a woman he worked with and had a friendship with. He was quite candid to us describing how he was attracted to him having met him a party he was aged about 7. He was candid that, but for R, his relationship with the mother would have withered away. He described how fulfilling that relationship was filling a need in him to have a paternal role. He did not deny the physical attraction but said it was a very minor part. In answer to the Tribunal he accepted that it was unlikely R’s mother, who approved of the relationship, would have done so if she knew his true feelings. The Chairman put to him that his description of meeting R was rather “romantic” and he said that he could see this.
 
16.	  He denied being aroused by the boy N in the circumstances set out above in Paragraph 12. He used the word uncomfortable. He described at once stage contemplating fostering but realised the intimacy involved in this would put him and the child at risk. He therefore took the step of notifying his GP of his feelings to ensure that no application by him could proceed. He described seeking counselling and therapy on five occasions. None of these lasted long and none were to do with his attraction to boys but rather his feelings of depression and his inability to form adult relationships. He described having told two friends, a couple who have stayed with him, of his feelings, but no others before Ms M. When pressed by Mr Palmer he consistently downplayed the issue of his attraction to boys as having a sexual element which he described as a small element of his attraction. He denied ever having had a desire to abuse. He was categorical in saying that he did not get aroused by boys and did not have sexual feelings. He denied his feelings impacted upon his work at all although he accepted he worked with abused and vulnerable young people. 

17.	The final witness was an expert called by the Tribunal under regulation 13, Mr Ray Wyre. Mr Wyre is a social worker who has worked for many years with sexual offenders. He has worked with some of the most dangerous people in society and throughout his evidence contrasted the Appellant with other people he was working with who are still in post in teaching and social work. In some ways that is both illuminating and unhelpful. The fact that person A is dealt with in one way does not assist us in considering Mr W. The fact is his agency did not offer help and support, he was referred to the POCA list and was placed upon it. We have to deal with his situation and his alone.

18.	 Mr Wyre considered that from his three hour interview with the Appellant and consideration of the papers that there was only a small possibility the Appellant had abused in the past and even smaller possibility of his abusing in the future. He felt that the Appellant had developed sophisticated self defence mechanisms including taking his attractions to boys and turning those situations upon themselves whereby he becomes the child who is humiliated by women and girls. He could not see evidence of paedophilic fantasies although accepted that there was a sexual element to his attraction to boys which he described as quite high. He was clear that in his description of the incident with N he was describing arousal. He felt that the appellant was an exceptional case in that he raised the issue of how we deal with people who have a fantasy but have no associated problem behaviour that others have noticed. He said;

“To spend 30 years in Social Work and never have colleagues or managers expressing concerns about someone who has problems is remarkable. It does show that individuals can hold onto fantasy and control behaviour. That they can recognise areas of weakness and avoid situations that might lead to carrying out the fantasy.”

19.	Mr Wyre was clear that despite all the good work done and exemplary professional career he could not employ him in his agency. He said;

“ I employ a person to do a job without their bringing baggage. I expect them to deal with it to tell someone and get help to deal with it professionally”

He further said that because now his fantasy is known it would be difficult if not impossible to defend himself if any complaint were made.

20.	Here to an extent lies the rub. In his report Mr Wyre says as follows:

“In fact in this case the problem has been that for many years he has shared with social work colleagues his problem and he has also been to see at least 5 professionals in order to look at his problems”

21.	It is clear that Mr Wyre felt that the help he had sought was directed to his attraction to pre-pubescent boys. In his evidence the Appellant was very clear that this was not the case. Mr Wyre accepted that if his “issues” spilled into his professional life this was a problem. In his evidence, the Appellant had raised an example of how he would deal with his discomfiture. He was working with foster carers who were looking after a sexually abuse child. He was in a one to one situation with this boy and felt that the boy was acting seductively. He terminated the meeting and told the carers and his manager. It raised the serious issue of whether he will react differently in either positive or negative terms to vulnerable young people because of his “issues”. Mr Wyre felt that in the way the Appellant had described it, he had acted appropriately

22.	Mr Wyre spent a good deal of his Report and his evidence discussing society and professionals’ reactions to fantasy. He was careful to point out that there are no professional guidelines on this and no requirement professionally that people disclose their fantasies. He said that he felt this Tribunal could be helpful in clarifying these issues.

23.	Having heard from the Appellant and then Mr Wyre we formed the view that Mr W, when he gave evidence before us, was really quite disingenuous. In our view he deliberately down played the sexual element of his attraction to pre- pubescent young children. He misled Mr Wyre into believing he had sought help for this attraction when he clearly had not. He still has issues with attraction and we were greatly engaged by Ms M’s evidence that when discussing concepts of beauty he used a young man he was working with as an example, although this was disputed by him. On this point however we prefer the evidence of Ms M. There is no evidence that Mr W has ever acted upon his feelings and we note Mr Wyre’s assessment  that this case was exceptional because of the lack of what he described as fantasy leakage; the situation where people, because of attitudes or behaviour get nicknames and create disquieting feelings in others. This has to be put into the context that there were never any retrospective child protection investigations. We were struck by the fact that the Appellant felt it necessary to put in place external control mechanisms (telling the GP) to prevent his becoming a foster carer suggesting less control than he would have us believe. We are also struck by the fact that following a rather late request by the Secretary of State for sight of his medical and therapy records he refused, save on very limited grounds. Mr Wyre, in his opinion, said that Mr W. would benefit from counselling in respect of his sexual attraction to boys. He also said that he should not work with sexually abused children.
 
ANALYSIS

24.	As we said from the outset there are three hurdles that have to be jumped before we can affirm the Secretary of State’s decision and dismiss the appeal. (1) Misconduct (2) Risk of harm to a child resulting from that misconduct and (3) unsuitability to work with children.
 
25.	The Secretary of State presents his case on misconduct as follows; 

“The nature of Mr W. attraction to boys coupled with the fact that he was employed to work closely with vulnerable children, was such that he risked causing a child harm. In failing to disclose the nature of that attraction to those who employed him to work with vulnerable children the risk remained entirely unassessed, unmanaged and uncontrolled. Had he disclosed his attraction to boys, appropriate steps could have been taken to reduce and/or eliminate the risk that he presented, whether by supervising his work, transferring him to more appropriate duties or dismissing him from such employment. The failure to disclose his feelings towards boys was misconduct, in that it fell short of the standard of conduct expected by his profession. He put his own interests before those of the children in his care”

26.	We have been referred to previous decisions of this Tribunal which looked at the question of Misconduct and it is clear to us from considering these decisions, particularly Mairs [2004] 0269 PC, that misconduct may occur by omission. The question here is whether the failure to report something as ethereal as feelings can amount to misconduct. We must not fall into the danger of looking into people’s minds and developing some form of Orwellian thought police. We are sure that all people have dark thoughts that they would not wish revealed and we must guard against knee jerk moral censure.

 MAJORITY DECISION AND ANALYSIS

27.	This is an unusual case in that the majority of the Tribunal (Ms M. Harris and Mr J. Black) found in favour of the Appellant and their reasoning is set out below. The whole Tribunal agreed the analysis of the evidence as set out above and accordingly the minority reasoning of the Chair which is given separately is based upon the same interpretation of the case and evidence as set out at paragraphs 1 – 26.

28.	We have to consider the statutory regime that we are working in. The whole purpose of the Protection of Children Act 1999 and the Care Standards Act 2000 is to provide a framework for the protection of the vulnerable. All people working with the vulnerable have a duty to put the interests of their clients first. Let it not be forgotten that despite his feelings the Appellant has chosen not only to work with children but some of the most vulnerable children. There is little doubt from what we have heard that he appears to have done his work over the years conscientiously. Nonetheless we are clear that this issue of attraction has been a major problem for him. The mere fact he disclosed it to Ms M in the manner he did indicates this. He could have eradicated the conflict between his personal feelings and his professional life by working in other areas of social work, he chose not to do so but rather over the years developed forms of self control. We consider that  professionals, working in this field have an objective duty to look at themselves and if there is anything about their sexuality that may compromise working with children they have a positive duty to disclose it. However in  this case ultimately we have been presented with a person with worrying feelings and fantasy but without any evidence that he has acted upon them and abused his position of care.  Furthermore we know of no guidance or professional standards, written or unwritten, which require someone to divulge a feeling or fantasy which they feel is controlled and for which there is no objective evidence in his history to tell us otherwise.  Accordingly we find that his failure to report these feelings to his employers or seek professional help does not  amount to misconduct.
 
29.	Mr W. says that he has never acted on his feelings and never would, a view supported by Mr Wyre, therefore what risk does he present to children? Furthermore now that the situation is revealed the prospect of direct threat is minimal. This may be the case although we cannot in all conscience dismiss it completely.  In the field of sexual attraction we cannot be certain that a person will not in the future act on their feelings even though in the past they have not. We accept however on the balance of probability that the risk is not of direct abuse. The risk could be said to be much more subtle. It may exist in terms of the Appellant’s interactions with young people. Would he favour one over another because he is attracted to him? Would he conversely fail to act professionally as a means of self-protection because he is attracted? Would he cut short interviews because he is uncomfortable? All those subtle interactions may impact upon a child’s emotional development. However we were not presented with any clear evidence to demonstrate any of the above has occurred in his practice. Mr Wyre was very clear that he should not work with abused children because of the dangers they pose. We agree but, there is no provision under the Act to place conditions upon inclusion in the list. It is all or nothing. Whilst Mr W. has indicated his desire to continue work in the field of assessment and training of foster carers by being removed from the list, we cannot circumscribe the work he does.  However the General Social Care Council, should he apply to be registered as a social worker, may wish to carefully consider his circumstances now. 
 
30.	Mr Wyre has indicated that he would not employ Mr W. principally because, now that his fantasy is known, if a child were to make allegations against him, who in clear conscience would not take those allegations seriously? How would an agency protect itself from harm? How would they prevent children being harmed by being subject to second guessing? In this instance we have to say that whilst misconduct has not been found we still feel he is now unsuitable to work with children. 

REPRESENTATION

31.	We felt that Mr W. was considerably hampered by not being represented in these proceedings. We have seen a letter from solicitors employed by him which states as follows;

“The legal services commission inform me that, as I had indicated, Legal Aid is not available for this type of thing and that if you wished to be represented you would have to pay for it out of your own pocket”

32.	Representation before the Tribunal under the Protection of Children Act 1999 is authorised under paragraph 2 Schedule 2 of the Access to Justice Act. Under Paragraph 23.1.4 of the Guidance, the Lord Chancellor has authorised Legal Help at Court and Legal Representation shall be available before the Tribunal (Subject of course to means). Any firm with a contract may apply for a certificate, although application has to be made to the LSC’s Cambridge Office. We hope that this issue will not arise again in cases such as this.

CONCLUSIONS AND DECISION

33.	We have found this a very difficult case to decide. Ultimately however we were not satisfied on the balance of probabilities, that the evidence presented by the Secretary of State has demonstrated the Appellant guilty of misconduct which harmed a child or placed a child at risk of harm. Accordingly we allow the appeal and direct that the Appellant be removed from the list.

Mr J BLACK
Ms M HARRIS
(members nominated by the President in accordance with Reg 5 (5) from members of the  lay panel appointed by  the Lord Chancellor under Reg 3 who have the experience and qualifications relevant to the subject matter of the case).

11th July 2005

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MINORITY DECISION
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1.	In this case I have taken the unusual course of recording my reasons for disagreeing with the majority decision of my colleagues who allowed the appeal by Mr W.
 
2.	Having made the findings set out at paragraphs 1 – 26 of the main decision I believe that my colleagues have fallen into error on a number of counts;

•	They have failed to analyse and properly account for the unsatisfactory nature of the Appellant’s own evidence;
•	They placed too much weight upon the lack of evidence either way that the Appellant has ever acted upon his attraction and thereby concentrated on actual physical harm rather than the risk of harm in its broadest context and by so doing made the finding that his failure to disclose these feelings and seek professional counselling did not amount to misconduct;
•	They failed to have proper regard for the purpose of the legislation and in allowing the appeal have not properly weighed the Appellant’s rights against those of the children with whom he works;
•	They have been overly sensitive to the idea that they are “policing” thoughts rather than accepting that in this case, for whatever motivation, it was the Appellant who moved those thoughts from being purely private into the public arena; 
•	They failed to have regard to the high duty placed personally upon a professional to act appropriately to protect children by  finding that his failure to report and seek help did not amount to misconduct because there are no guidelines about this matter.

3.	In all aspects the Tribunal as a whole preferred the evidence of Ms M to that of the Appellant where it was contradictory. The Tribunal found therefore that the Appellant did describe himself as a “Paedophile”. It is mere sophistry to then justify that description by saying the Appellant used this term as an intellectual short cut; “a lover of children”. This is a man who has worked in social work for 30 years. He has worked with abused children and their abusers in child protection, he has seen the effect of abuse first hand. He knows the effect that word has and the context in which it is used. He is not some naïve ingénue. The use of that term in the context it was used fairly describes the Appellant. It is therefore the base point that we start from.
 
4.	The Appellant told Ms M that he would have liked to use child pornography but he had not. He told us that he was not computer literate although he did describe an infantalist web site that he used to Mr Wyre. The fact that he would like to use child pornography is significant given his knowledge that such sites depict actual abuse.

5.	Most significantly in describing his epitome of beauty the Appellant used as an example a child that he was working with in a professional context. What clearer example can one have of his professional life spilling into his personal life? How would that child be affected by that knowledge? How has the Appellant’s interactions with this child been affected by that attraction? We can only speculate but clearly, in my view, this shows a real and significant risk of harm to that child.

6.	The Tribunal found that the Appellant had not been frank with Mr Wyre. He clearly thought that the Appellant had sought counselling on five separate occasions to help deal with and come to terms with his attraction to young boys. The Appellant was clear to the Tribunal that he had in fact sought counselling to deal with relationship problems and not with the issue of sexual attraction and that he had never sought professional help for this.

7.	The Appellant admitted that he was worried enough about his own self control to admit his attractions to a GP so that this would be recorded and would thereby prevent him becoming a foster carer. Why do this if he is as controlled and almost asexual as he describes?

8.	The Tribunal found (paragraph 23);

“Having heard from the Appellant and then Mr Wyre we formed the view that Mr W, when he gave evidence before us, was really quite disingenuous. In our view he deliberately down played the sexual element of his attraction to pre-pubescent young children.”

The majority decision in my view fails to take proper account of those findings.

9.	Finally why make the confession that he did to Ms M? I am perplexed by this and without entering the realms of speculation, which would be inappropriate, at the very least it shows a man deeply troubled by his own thoughts and desires.
 
10.	Having made these findings, the majority of the Tribunal then in my view fell into error by rather simplistically saying that because he had not acted upon them in the past his failure to report his feelings and seek professional help did not amount to misconduct. It is important to say that there was no evidence before the Tribunal that he had ever acted inappropriately. It is also important to say that because of the actions of his agency there have never been child protection investigations with the agencies that the Appellant has worked with previously, nor were we allowed sight of counselling records. What we did have is the evidence of Ms M, Mr Wyre and the Appellant himself. We formed a series of views about that evidence and made clear and categorical findings that this man had sexual attractions to pre-pubescent boys and that he downplayed those attractions. That denial in my view is significant and clearly poses a risk to children. That risk may not be of physical harm but rather of more subtle harm in his interactions with children. He has chosen, despite the clear knowledge that sexual attraction to boys is a major problem for him, to work with children. He has chosen to do this in my view knowing that his feelings are likely at some level to impact upon the children he works with. He has chosen not to seek professional help. He has chosen not to tell his employers so that they can assist him in developing safe working practices. This in my view clearly amounts to misconduct.
 
11.	The purpose of the Protection of Children Act 1999 is clear and set out in its title. It is for the Secretary of State to make his case that the three hurdles we describe are satisfied. I am clear that he has made that case and the majority decision accepts that he is unsuitable to work with children. It is important to weigh up the Human Rights implications in a decision such as this and patently the Appellant has an Article 6 Right to fair trail. He also has an Article 9 Right to freedom of thought, conscience and religion. A child however has Rights too; they have the Right not to be harmed by those working with them, they have the Right to dignity, they have the Right not to be regarded as sexual objects. The purpose of the Act is to protect those Rights and in my view the majority of the Tribunal have placed the Appellant’s Right to freedom of thought above the Rights of a child to be protected.

12.	This is not a case about the policing of thoughts. As the Tribunal said, all people have deep and dark thoughts that they would not want others to have access to. In this case the Appellant chose to make his thoughts and feelings public. Once he made that choice he has to accept the consequences. His motivation for disclosing those thoughts and Ms M’s motivation for giving her ultimatum are irrelevant. The fact is that the Appellant made a choice to reveal his thoughts and as a Tribunal we have to deal with the facts of the case before us. 

13.	The final aspect of the case that troubles me is the manner in which the majority decision abrogates responsibility from the individual by saying that because guidelines were not in place his failure to act on his feelings did not amount to misconduct. I cannot accept this analysis at any level. Any person working with children has the highest personal duty of care towards them. The Appellant is a professional person. This brings with it both external standards imposed by employers and professional bodies and also personal standards. Those personal standards are to a degree subjective but are clearly set against objective criteria. One of those personal standards is to ensure that in working with children you do nothing to place them at risk of harm. The majority of the Tribunal appear to have accepted that because the Appellant thought he was not placing them at risk this was sufficient. That subjective view has to be tested through the gauze of objective analysis and on this basis it is clear to me that the Appellant falls well short. Guidelines cannot cover every eventuality, there has to be personal responsibility and accountability.
 
14.	Accordingly I would have rejected this appeal and found that the Appellant was guilty of misconduct by failing to report his feelings and failing to seek professional help, that the misconduct would be likely to place a child at risk of harm and that for the reasons already found by the majority he is unsuitable to work with children.

Ian Robertson

(Chairman appointed by the President as the nominated chairman for this case under Regulation 5 from the panel of persons (the Chairmen’s panel) selected by the Lord Chancellor under Paragraph 1 (1) of the Schedule to the Protection of Children Act 1999).

11th July 2005