BB v Secretary of State [2004] EWCST 421(PC) (28 October 2005)

BB

-v-

The Secretary of State
 
[2004] 421.PC
[2004] 422.PVA

Before:

Ms Andrea Rivers (Chair)
Ms Judith Wade
Mr Raymond Winn

Hearing dates:  18th, 19th, 20th October 2005

Application

1.	The applicant appeals under s 4(1)(a) of the Protection of Children Act 1999, against the decision of the Department for Education and Skills to include her on the Protection of Children Act (PoCA) list, and under s 86 of the Care Standards Act 2000, against the decision of the Department of Health to include her on the Protection of Vulnerable Adults (PoVA list).  Both these decisions are dated 6th September 2004.

Representation

2.	The applicant was represented by Clive Sutton (solicitor) and the respondent was represented by Jonathan Moffett (counsel).

Preliminary Matters

3.	Prior to the start of the hearing the tribunal made the following directions:

(i) 	that members of the public be excluded from the hearing to safeguard the welfare of the children involved, pursuant to Regulation 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations and
(ii) 	that there be Restricted Reporting Order under Regulation 18(1), prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child and this order was renewed by the tribunal at the outset of the hearing. For this reason the names of all those referred to in this decision will be replaced by their initials. 

The Evidence

4.	For the respondent we heard oral evidence from:  KP, a social worker; MW, the mother of a friend of the applicant’s son;  SC, Team Manager of the local authority Children and Families Team;  SW, a social worker;  SS, Senior Practitioner/Social Worker;  SJ, local authority Independent Reviewing Officer;  Police Constable (WPC) AH;  CD, local authority Reviewing Manager;  and NY, Operational Manager for Child and Adolescent Mental Health Services. We heard oral evidence from the applicant, BB. 

5.	We read written statements from all these witnesses.

6.	We were provided with a number of relevant documents including medical reports from Dr L and Dr B, notes of BB’s interview for the post of social worker, a report of a disciplinary investigation in respect of BB and various police statements.

7.	We were shown statements and documents in relation to care proceedings in respect of C and J, BB’s two children, and an adjudication by a Canadian adjudicator in respect of an appeal made by the applicant against her dismissal from her job as a social worker in Canada.

8.	We saw, at our own request, DVDs of police interviews with C and J. Only a short extract from the interview with C was available to us but we saw the whole of the interview with J.  

The Law

9.	The list established under s 1(1) of the Protection of Children Act 1999 includes the names of people considered unsuitable to work with children.

PoCA List

10.	S4 of the Protection of Children Act 1999 provides for an individual to appeal against inclusion of his name on the list to this tribunal and s4(3) provides that:

		If on an appeal…under this section the Tribunal is not satisfied of either of the
		following, namely –
           			(a) that the individual was guilty of misconduct (whether or not in the course
of his duties) which harmed a child or placed a child at risk of harm; and
			(b) 	that the individual is unsuitable to work with children
           		the Tribunal shall allow the appeal….

Three stage test

11.	Thus, in order to dismiss the appeal, the tribunal must find:

(i) that there was misconduct,
(ii) that the misconduct harmed a child, or placed a child at risk of harm and
(iii) that the individual is unsuitable to work with children.

Definition of harm

12.	S12 of the Protection of Children Act 1999 provides that “harm” has the same meaning as in s31 of the Children Act 1989. This includes emotional as well as physical harm.

Burden of Proof

13.	Section 4 of the Act places the burden of proof on the Secretary of State.

Standard of Proof

14.	The standard of proof is the civil standard, that is, the balance of probability.

PoVA List

15.	Appeals against inclusion in the PoVA list are governed by s86 of the Care Standards Act 2000. 

16.	S86(3)(a) provides that: 

If on an appeal…under this section the Tribunal is not satisfied of either of the following, namely –
	(a) 	that the individual was guilty of misconduct (whether or not in the course
		of his duties) which harmed or placed at risk of harm a vulnerable
		adult; and
	(b) 	that the individual is unsuitable to work with vulnerable adults
the Tribunal shall allow the appeal….

17.	In this case the decision to place the applicant on the PoVA List was as a result of her inclusion on the PoCA list. In such a case s92(4)  of the Care Standards Act 2000 provides that misconduct in relation to a child for the purposes of the PoCA list satisfies equally the requirement of misconduct in relation to a vulnerable adult, as set out above. Thus, if the first and second limbs of the three stage test are satisfied under the PoCA criteria, they will automatically be satisfied under the PoVA criteria. The third limb, however, in respect of unsuitability to work with vulnerable adults, has to be considered separately. 

Factual Background

18.	BB was born in Canada. She married CG in 1989 and had two children, a son named C, born in December1990 and a daughter, J, born in June 1994. In October 1992 BB graduated with honours from St Thomas University with a social work degree and went on to obtain a professional social work qualification later that year. In January 1993 she got a job as a social worker in New Brunswick, initially as a child protection investigator. 

19.	In Summer 1995 her employers began to have concerns about her work. She was falling behind with paper work and phone calls and was neglecting to deal with such things as court orders, custody agreements and finances. She explained to us that at the time she had been suffering from what she termed “situational” depression. A child who was in her caseload had died and she blamed herself. Her mother had suffered a stroke at the age of 48 and BB had been involved in difficult arrangements for her mother’s care. These things, she said, had brought on a period of depression and caused her to “shut down”. Her employers’ concerns escalated and in December 1996 she was dismissed. 

20.	In 1997 she appealed against that dismissal and also complained that her employers had not taken sufficient account of the fact that she had been suffering from depression at that time. There was a l2 day hearing with 27 witnesses before an independent adjudicator who dismissed her claim. She also found that BB’s employer had “made a good effort to try to help (her) with her difficulties.” 

21.	In 1998, following the breakdown of her marriage to CG she married KF.  She became a home care worker with the Canadian Red Cross and also worked with pre-school disabled children. Her second marriage ended following allegations by C that his stepfather had hit him with a window rod as a result of which KF left the home in February 2000.

22.	On the 31st December 2001 BB married again. This time her husband was an Englishman, AB, whom she had got to know via the internet. He had made extended visits to her and the children in Canada and it was planned that he would get a job in Canada and join them there permanently. However, this proved to be unworkable and the family decided to move to England to start a new life in August 2002.

23.	In September BB applied for a job as a social worker. She did not disclose the fact that she had been dismissed from her social work job in Canada or that she had, in the past, suffered from clinical depression. She gave the names of two referees, one of whom she described as “manager” but who, it later transpired, was not her social work manager but someone with whom she had worked on two occasions when she was a social worker. At interview, when asked what personal qualities she felt she could bring to the post she replied that she was “open and honest”. It is regrettable that, as KP conceded in her evidence, her prospective employers did not themselves make direct contact, at that stage, with her previous social work manager in Canada. In the absence, therefore, of any information which might have caused them to question her version of events, her job application was successful and she started work that November.

24.	Her children had started school in the September. C had difficulties settling in. He had been diagnosed with ADHD in Canada and had significant behaviour problems. Mr and Mrs B had paid for him to go to a private school with small classes and his work and behaviour had begun to improve during the period leading up to the move to England. However his new school, by contrast, was a large comprehensive. His behaviour deteriorated and there were problems with homework and bullying. BB and AB were in frequent contact with his school about the problems and in October, at an evening meeting at the school, they discovered that he had missed a number of detentions and was failing to bring home letters to them from the school.

25.	When they returned home there was an incident. According to BB, C had been standing in front of the door and AB had gestured to him to move out of the way. C had fallen backwards as he had moved away from the door and banged his head on a trailer attached to their Land Rover. After that, she said they had gone into the house, told J to go to her room and there followed what BB described as a “very vocal discussion about his work”.

26.	In February 2003 C visited the home of a friend, B, and spoke to his mother, MW. He told MW that AB had punched him and had slapped J around the head. MW told us that she had contacted BB to tell her what C had said but it seems that BB did not report the allegations to anyone in authority.

27.	On April 2nd C came home late from school. AB and J were at home but BB was not yet back from work. There was an argument between C and AB after which C went into his room and wrote a three page account in his notebook of what he said had happened. He said that AB had repeatedly hit, pushed and punched him and threatened to kill him and that he was scared. When his mother returned from work that evening he said nothing but the following day, April 3rd, just as he was getting out of her car to go to school he showed her a bruise and said that AB had done it. She told him they could discuss it that evening. At school C showed his notebook to a teacher who informed the deputy head teacher who then referred the matter to police and social services. WPC H was the officer in the case and she spoke to C who repeated the allegations and said that his mother had also assaulted him. He was made subject to a Police Protection Order and taken to foster carers.  WPC H then went to the family home and spoke to BB, AB and J, who made similar allegations to those of her brother.  BB agreed to allow J to be voluntarily accommodated by the local authority and she too was taken to foster carers.

28.	On April 4th, both children were interviewed at the police station and C’s bruises were examined by a doctor who found that the bruises did not necessarily correlate with C’s story. 

29.	On April 5th BB and AB were arrested on suspicion of cruelty and interviewed by the police. They both denied the allegations and were released on bail. BB was eventually informed on 15th May that she would not be charged with any offence. However, AB was charged with assault.    

30.	On 17th April BB was sent a letter by her employers suspending her from work, because of the ongoing police investigation. Thus three parallel investigations involving this family were in progress: a police investigation involving BB and AB; care proceedings about the two children; and a disciplinary investigation by BB’s employers. 

31.	On 30th April, at a Child Protection Conference, both children’s names were put on the Child Protection Register, C for emotional and physical abuse and J for emotional abuse and on 16th May, following the police decision not to press charges against BB, J was returned to her mother’s care on the condition that AB left the house. C was to remain with foster carers. 

32.	The care proceedings came before the court. A guardian ad litem was appointed for both children and Dr B, a consultant child and adolescent psychiatrist was jointly instructed to provide a report about C, though not J. The guardian ad litem, in her report, commented on C’s “profound distress at the position he finds himself in” and said that while it was clear that his mother “loved him dearly” he had nevertheless suffered “emotional harm in the care of his mother and stepfather”. She said that J had also suffered emotional harm. Dr B confirmed that C suffered from ADHD, together with attachment difficulties, and found that he had “a tendency…to misperceive events in an exaggeratedly negative and dramatic manner”. He described him as emotionally vulnerable and said that his relationship with his mother was “characterised by a very ambivalent attachment”. He did not think it advisable for C to return to his mother’s care, especially if AB was included in the family.

33.	By this time CG, C’s biological father in Canada had been contacted and said that he was willing for C to be returned to his care. C was missing him and it was agreed by all that it was in his best interests to go back to Canada to be with his father. However, the risk to J of remaining at home with her mother and stepfather was considered to be “low and manageable” and in these circumstances the care proceedings in respect of both children were discontinued.

34.	The criminal charge against AB had been set down for trial and two hearing dates had been fixed but on each occasion, even though all parties had been present at court, it had not been possible to proceed. We heard from WPC AH that this was due, on the second occasion, to problems in playing the DVDs of the children’s interviews. The proceedings were discontinued and once the Family Court had ruled, on 24th November, that C was free to go to Canada, he left the country to live with his father in time to spend Christmas with him. 

35.	In the meantime the disciplinary investigation had revealed the information which BB had not disclosed when applying for the job, in particular that she had been dismissed from her job as a social worker in New Brunswick. Her social work manager in Canada, BC, had been contacted and had told BB’s employer that the areas of concern leading to her dismissal had been: organisation of daily tasks; complaints from a number of sources at various times; not returning calls; being unavailable to clients and foster parents; leaving departmental bills unpaid; seldom making home visits and failing to set up necessary services; allowing court orders to expire, leaving children in care, often without a status; not ensuring that court orders were served. BC said that BB’s  referee, who had been described on her application as “manager” was in fact someone who had transported children to and from appointments for their department but had never actually been employed by them. She also said that BB had “used as the basis for her appeal against dismissal” the fact that she had suffered from depression.

36.	All these matters are detailed in a report compiled by KP and dated 13th August 2003 but they had previously been discussed with BB at a meeting on August 4th in the presence of her solicitor. On 19th August BB wrote a letter of resignation to her employers and this may well have crossed in the post with a letter to her from them, dated 20th August, requiring her to attend a disciplinary hearing to answer allegations of gross misconduct.

37.	These were the events which led to BB’s name being included on the PoCA and PoVA lists.

Legal Arguments

Respondent

38.	For the Respondent, Mr Moffett opened his case by explaining that the Secretary of State did not rely on the allegations of physical abuse of either child by either parent. Their case was based on two grounds:

(1) BB’s conduct when she applied for the post of social worker and 
(2) her failure to act appropriately in response to C’s allegations as reported to MW.

39.	In his submissions he referred us to the following three cases:

Neville Davis v Secretary of State [2002] 13.PC 

The appellant had falsely claimed to be a qualified social worker and lied about his previous employment history. The tribunal found that he had “placed children at harm from wrong decisions arising from his lack of training and consequent competence”. They also said that “the concealment involved serious dishonesty wholly inconsistent with the trust necessary for a social worker to carry out his or her work effectively”. Mr Moffett conceded however that BB, unlike Neville Davis, was in fact a properly qualified social worker.

AM v Secretary of State [2004] 310PC

In this case the tribunal found that an omission can amount to misconduct.

MD v Secretary of State [2004] 0345.PC

This case concerned a registered childminder who had failed to disclose the fact that her husband had abused her daughter and her granddaughter but had failed to report it. The tribunal found that this failure amounted to misconduct which had put both the daughter and the granddaughter at risk of harm.

40.	He described BB’s behaviour in relation to the job application as a deliberate and calculated deception clearly amounting to misconduct. The purpose of the deceit was to conceal her previous incompetence. This was not, as she had said, a temporary incompetence, due to her difficulties and lack of support at that time. The employment adjudicator, following a lengthy hearing, had concluded that depression had not been a factor and that her employers had been supportive. Thus BB’s failure to disclose this history of incompetence put children at risk of harm, as in the case of Neville Davis above. Furthermore it was fundamental that the integrity and honesty of social workers or others who work with children, who are vulnerable members of the community, could be relied upon. She had lied because it was in her own interests. He submitted that her concerns throughout had been for her own position and that she had failed to recognise or take account of the needs of C and J because it was not in her interests to do so. Thus, if she was prepared to ignore the interests of her own children when faced with such a conflict of interest, it was the more likely that other children would be at the same risk from her. 

41.	He submitted that when MW had told her about C’s allegations of abuse BB had failed to pass the information on to someone in authority and that this omission amounted to misconduct. She had assumed that C was lying, even though she had no grounds to do so. Also, in ignoring his allegations, whether true or not, without consideration of his version of events, C must have felt rejected by his mother as a liar, causing him emotional harm.

Applicant

42.	Mr Sutton submitted that the evidence about the information provided to BB by MW was unclear. BB had thought she was referring to the incident in October when C had fallen against the trailer and since she herself had seen that incident and was clear that it was an accident she was entitled to believe that C was exaggerating or incorrect. In MD above, the applicant was aware of the abuse but this was not so in the present case.

43.	It was not true to say that she focussed on her own needs rather than on those of her children. She was trying to hold the family together in a situation where she faced the loss of her job and their immigration status. The emotional harm suffered by the children and referred to by the guardian ad litem in her report did not result from any misconduct by BB.

44.	He submitted that the misconduct arising from her job application was an employment issue and could not be the basis for a finding of misconduct in relation to this tribunal. No identifiable child had been put at risk by it. She was a properly qualified social worker and felt competent to do the job. She had worked in this country for five months and there had been no reports of any problems about her competence. Furthermore, any shortcomings found in her care of her own children were related to her own personal circumstances at the time and  would be very unlikely to be repeated in relation to other children.  

45.	He referred us to the approach of the tribunal in the case of Lisa Arthurworry v Secretary of State [2004] 268.PC in which it was said that “to list a social worker under the PoCA list….for professional mistakes should be an unusual occurrence, to be used only in the most clear cut of cases”. A register of social workers had now been set up under s56 of the Care Standards Act 2000 with a provision under s59 for a person to be removed from the register. The tribunal in that case took the view that this was “a more satisfactory procedure than listing a person as unsuitable to work with children, which carries with it far ranging implications for the individual as regards both employed and voluntary work for a period that can extend to ten years or more.”

Findings

Misconduct

46.	It was common ground that BB, in concealing her true employment history in her job application and subsequent interview was guilty of misconduct. She herself admitted it frankly and expressed remorse for her actions. Thus we find that in this respect misconduct is proved.

47.	We are not, however, persuaded that her failure to report what MW told her about C’s allegations amounted, in and of itself, to misconduct. The circumstances surrounding the matter were complicated. It was not clear from the evidence exactly what MW had told BB when she had phoned her, or what BB had understood her to be saying. We do not know what BB said to C after the phone call and whether she simply dismissed him as a liar. Indeed her evidence was that at around that time she was seeking family therapy through their GP and that an appointment was being arranged. After the phone call the relationship between MW and BB became a difficult one with each making accusations against the other, which further clouded the issue. Thus we find that in this respect misconduct is not proved.

48.	We therefore accepted misconduct was established in ground (1) but not ground (2) of the respondent’s submissions.

Did the misconduct harm a child or place a child at risk of harm?

49.	It was the respondent’s case that, despite the fact that there were no reports of children being harmed or placed at risk of harm by her during the five months when she did work, the children in her care were nevertheless at risk from her. We heard evidence that her employers, had they been aware of her past problems, would have felt it necessary to provide extra support and monitoring for her. Otherwise, there was a risk that the same problems would be repeated.

50.	These problems, which were the reason for her dismissal in Canada, are set out in paragraph 35 above. They indicate a level of incompetence which would clearly have put children at risk because procedures and safeguards designed to protect children were simply not followed. 

51.	Thus the misconduct which resulted in her obtaining the job in this country and then working without extra supervision did put children at risk.

Is she unsuitable to work with children?

52.	We accept the respondent’s submission that the deception was so serious as to demonstrate that she cannot be trusted to work with vulnerable members of the community. Furthermore, her evidence demonstrated a repeated failure to face up to the truth, whenever it was not expedient for her to do so. 

53.	BB found herself in an extraordinarily difficult situation when she arrived in this country and was clearly under immense pressure. While in Canada she had suffered a number of painful setbacks and she was now married for the third time and trying to hold together her new family. She and her children were in a new country with uncertain immigration status and trying to adapt to new ways. That would have been particularly difficult for C who had behaviour problems and needed, as she herself told us, stability and routine. There were financial pressures and she needed a job.  

54.	Her response to all this followed a predictable pattern. She knew that she would not get the job if she told the truth, so she lied. She persuaded herself and sought to persuade us, that this did not really matter because her problems at that time were due to external pressures which would not recur. In any case, she told us, it was a long time ago. In fact, given the continuing pressures she was under there was a serious risk it would happen again, especially since her employers would not have provided her with the necessary extra support and monitoring. However, she chose to believe what she wanted to believe, rather than leaving it to others to judge. 

55.	In trying to persuade us that the problems which had brought about her dismissal in Canada were not really her fault she told us that she had not received sufficient support from her employers, even though an independent adjudicator had found, following a lengthy hearing, that they had provided her with good support. 

56.	She was unable to face up to the possibility, as evidenced in both the guardian ad litem’s report and Dr B’s report, that she or AB might have been responsible for any of the children’s problems and she minimised their distress. Even to contemplate the possibility that either child might have suffered any physical or emotional abuse would have put her family’s precarious situation at risk and therefore she was not able, whether consciously or unconsciously, to do so. 

57.	In all these circumstances we find ourselves unable to have any confidence in her integrity or judgment and therefore consider her unsuitable to be entrusted with the care of vulnerable children.

Is she unsuitable to work with vulnerable adults?

58.	It follows that for the same reasons we also consider her unsuitable to work with vulnerable adults. 

59.	It is therefore the unanimous decision of the tribunal that this appeal be dismissed.

28th October 2005

Signed:
Andrea Rivers (chair)
Judith Wade
Raymond Winn