E.H. v Secretary of State [2006] EWCST 702(PC) (25 October 2006)

E. H. 

v.

Secretary of State 
(2006) 0702.PC
(2006) 0703.PVA

Before
 Rev. Maureen Roberts (Chair)
Mr. Graham Harper
Mr. Andrew Wilson 

Heard on the 23 and 24 October 2006 Birkenhead County Court, 76 Hamilton Street, Birkenhead.

The Appellant appeared in person.

The Respondent was represented by Mr. Jonathan Moffett of Counsel instructed by Mr. Matthew Smith of the Treasury Solicitor. The Respondent called two witnesses: Detective Constable Nigel Green of the Child Protection Unit Merseyside Police and Mr. Jon Foster one of the Directors of New Pathways Children’s Services, (NPCS)

The decision

1.	The Appellant appealed against the two decisions of the Respondent contained in a letter to the Appellant dated the 2nd May 2006 (the decision letter); firstly (the first appeal ) to confirm her on the Protection of Children Act List (the PoCA List) and secondly (the second appeal) to confirm her on the Protection of  Vulnerable Adult's List  (the PoVA List)  The decision letter also notified the Appellant that the effect of inclusion on the PoCA list also meant that the Appellant would not be able to carry out work to which section 142 of the Education Act 2002 applies and that her name had been added to the Education Act List. 
2.	At the Directions hearing on 22 August 2006 a restricted reporting order under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal. Regulations 2002 (the Regulations), was made to prevent the identification of any young person involved in the matter. We continue that order. We further order that the decision is published under Regulation 27 in an anonymised form to protect the private life of the Appellant. 

The background

3.	The Appellant is a woman in her mid twenties. She started work for New Pathways Children’s Services (“NPCS”) in August 2003. Although she had no social work qualifications, she had a sociology degree and wanted to work in the area of care. She commenced work at NPCS’s home at Brompton Avenue, working with a young man with autistic spectrum disorder. Her work was generally perceived to be good and she was identified to be a suitable person to work with a new client, VH, who was to come to NPCS’s Liscard Road home in or around February 2004. The Appellant was promoted into a senior role for this purpose on the basis of her previous satisfactory work and subject to a six month probation period.
4.	Accordingly, from February 2004, the Appellant was a senior residential care worker who had responsibility for VH. VH was an extremely vulnerable girl. Wirral Social Services had described VH as having severe and enduring mental health problems and as being emotionally immature. The Appellant was fully aware of VH’s background and difficulties before she started working with her in or around February 2004. VH was aged 15 at this time.
5.	In October 2004 it was agreed that the Appellant would stop working with VH. This coincided with a move to Rochdale, by VH, for certain therapeutic treatment. VH returned to Liscard Road by Christmas 2004. The Appellant went back to the Brompton Avenue Home to work with the young man in that home. Subsequently she handed in her resignation in November 2004; her last shift was at the end of December 2004. In January 2005 it was noted in the Young Persons meeting that VH wished to continue seeing the Appellant. This was arranged on a fortnightly basis and approved by VH’s social worker. From January 2005, the Appellant visited VH and took her out on Sunday afternoons. The last such visit was on the 6 February 2005.
6.	On 31 January 2005 VH made a disclosure to a member of staff that she had been abused by a person. Subsequently, by the 10 February 2005 she had named that person as the Appellant. The matter was reported to the police. There were lengthy interviews with VH and the Appellant. We read the full transcripts of both interviews.
7.	 In her police interview, VH alleged that the Appellant had kissed her breasts, touched her bottom and vagina, and had given her a love bite. There was an exchange of explicit text messages between VH and the Appellant on the night of 8/9 February 2005 which was after the initial disclosure that something had happened but before the Appellant was named by VH. We have read those messages. In her police interview the Appellant admitted kissing VH but denied other allegations of a more intimate physical relationship. She accepted that what she had done was wrong and inappropriate. No charges were brought against her and we read the letter from the CPS explaining the legal and evidential grounds for this decision.  

8.	The Appellant was referred by her employer to the Respondent in a letter dated 25 April 2005. The Respondent, having considered the information, provisionally listed the Appellant and informed her of this listing by a letter dated 3 October 2005. The letter stated that the decision had been made because it was alleged that she had “touched a young person in a sexually inappropriate manner”. The Appellant made submissions to the Respondent and we had copies of these. The Respondent having considered all the information available confirmed the listing in a letter to the Appellant dated 2 May 2006.

The law

9.	Where a person has been placed on the PoCA list under section 1 of  The Protection of Children Act 1999 (POCA 1999), then section 4 (3) states;
(3) If on an appeal or determination 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 duty) which harmed or placed at risk of harm a child; and
     (b). 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 individual's inclusion in the list.
10.	Pursuant to ss 86(3) and 92(4) of the Care Standards Act 2000, the Tribunal may only allow the Appellant’s appeal against the inclusion of her name on the PoVA list if it is satisfied both that she was guilty of misconduct which harmed a child and that she is unsuitable to work with vulnerable adults.
         In this appeal the burden of proof rests on the Respondent. The standard of proof is the civil standard namely on the balance of probabilities. We were referred to the case of C v Secretary of State for Health (CA) and looked at the case of R (on the application of N) v Mental Health Review Tribunal (Northern Region) [2006] 4 All ER 194 where all the recent cases on the standard of proof were considered.  In this case Richards LJ said” Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities.”

The Evidence

11.	 We read the statements provided and heard from the witnesses listed above and from the Appellant. 
12.	 DC Green who had been present at the interviews of VH and the Appellant confirmed the accuracy of the full transcripts of the interviews. He is a child protection officer with the Merseyside police with considerable experience of such work. He said he was made aware of the background of VH prior to her interview. He said that she had been nervous.  She had given a clear account of what had happened and he had not detected anything at interview that would cause him to doubt what she was saying. 

13.	Mr. Foster, a director of NPCS gave us evidence about the setting up and running of the homes. His colleague Mr Wardale is the registered responsible person for the home. The company provide care on an individual basis for young people with disturbed and challenging behaviour. He has an office on the top floor of Liscard Road. He stated that he and his colleagues had been very happy with the Appellant’s work; they were impressed by her commitment and considered that she was capable of the work which led to her promotion to senior carer and her employment at Liscard Road.
14.	Mr. Foster described VH’s background and difficulties in detail, including the fact that she was self-harming and that there were concerns that she had been sexually abused in the past. He described her as a “very troubled and vulnerable child with a history of sexual abuse, self harm, attachment deficit and she was emotionally immature with a clear discrepancy between her behaviour and her chronological age.” NPCS used a system of 2:1 care for VH in the interests of her safety and also that of the staff.
15.	Mr. Foster described the routine of meetings, supervision, training and mentoring that was in place for staff. We saw the notes from the supervision meetings between him and the Appellant. The notes for these meetings were typed by the Appellant. We noted from the notes of supervision that there was concern about ‘boundaries being blurred’, ‘need to dis-engage from VH’, ‘appropriate levels of physical contact’, and that other staff ‘feel excluded/uncomfortable. They feel I am colluding with VH’. He recognized the Appellant’s style of working as getting involved and close to the young person. He was aware of the need for professional boundaries and for example had reminded the Appellant three times to change her mobile phone number after it was apparent that VH had obtained it and was phoning the Appellant. The Appellant told us that she did change her number.
16.	Mr. Foster impressed us as a competent witness who was endeavouring to provide a specialized service for children and young persons. His organization had put a great deal of thought into training and professional support for staff who he acknowledged were recruited without necessarily having had previous experience in this area of work.  On being told of the allegations he said that he did not want to believe it and had found the Appellant an excellent worker and supportive of him in the home.
17.	We accept the evidence of the effect on VH of the relationship with the Appellant and the disclosures relating to it as it was described by Mr. Foster. He described a noticeable increase in self-harm, more withdrawn behaviour, a mistrustful attitude, confusion and anxiety. Contemporaneous
      documentation refers to VH requiring increased medication. 
18.	The Appellant confirmed the evidence that we had read in her submissions against the original listing. She said that she accepted that what she had done was wrong. However she considered that she had not been supported enough. She had worked long hours and not been helped by other members of staff. She said that she had left because other members of staff had gone on and on about her and VH.
19.	The Appellant said that VH texted her many times every day and that she would usually reply. This was after she had left Liscard Road. She said that nothing more than kissing took place that it was not planned. She accepted that it was an inappropriate way to behave and that looking back, VH was probably scared but that she did not realise this at the time. 
20.	The Appellant could not explain why she had sent such an explicit text message to VH  on the night of 8/9 February 2005 (The Appellant wrote that she wanted to have sex with VH). 
 
Conclusions.

21.	We have read the bundle of documents. We have listened to the Appellant and the witnesses carefully. 
22.	On the Appellant’s own admissions there was misconduct. She admits that what she did was ’wrong’.  While occupying a position of trust and responsibility towards VH, the Appellant became involved with her and started a physical relationship with her. On the Appellant’s account, this started in or around September 2004, after she had been working with VH for approximately 6 months.  It started with “a peck on the cheek” but progressed to kissing on the lips and where the Appellant put her tongue in VH’s mouth. The Appellant accepted that this behaviour was mutual and accepted that she had an “intimate” relationship with VH. She thought that she was in love with VH. We are not bound to make a finding about the extent of the physical relationship between the Appellant and VH but it is clear that the intensity of the relationship was strong by the time it came to an end.
23.	We do not accept the explanations by the Appellant that she was not trained or supported. We consider that the Appellant was given adequate and appropriate training. The Appellant’s relationship with VH was formed despite the fact that she knew that it was inappropriate and that she had been given frequent guidance as to the importance of not encouraging VH to focus upon her to the exclusion of other members of staff.
24.	We further find that there was harm to VH as a result of this relationship. We accept the evidence of Mr. Foster that she was withdrawn, more reluctant to engage and trust others for some time after the disclosure.
25.	The Appellant sought to displace responsibility for encouraging the relationship to VH and on more that one occasion described herself as a victim. This is an inappropriate attitude for a care worker in a situation such as this.
26.	Further, she has shown little empathy for VH. Despite the fact that the Appellant knows of VH’s background and difficulties, that she claims to have once thought that she was in love with VH, and that she heard Mr. Foster’s description of the consequences for VH, the Appellant found it difficult to speculate on the harm that might have been caused to VH and was reluctant to engage with this subject.
27.	We accept that working with VH was unbelievably demanding and required, for competent performance, a substantial and mature professional response. Its intensity and long hours was draining. Professional support, which we accept was available, is essential in such work. 
28.	The Appellant has taken no steps to learn from her experience and she has had no training or counselling to help her address the deficiencies that she has demonstrated. She seemed resistant to the suggestion of professional help or training while saying that if the Tribunal thought she need such help she would accept it.  She is unsuitable to work with Children.

29.	 In relation to the PoVA appeal, for the reasons set out above, the Appellant is not suitable to work with vulnerable adults. There is no reason to think that the situation would have been any different had VH been over 18. Further, the public confidence in any service that the Appellant worked for would be undermined and this in itself is a reason why she is unsuitable to work with vulnerable adults.

The appeals are dismissed. Our decision is unanimous.

Rev Maureen Roberts (Chair)
Mr. Graham Harper
Mr. Andrew Wilson

25 October 2006