AP v Secretary of State for Education and Skills [2006] EWCST 742(PC) (07 June 2007)

AP
-v-

Secretary of State for Education and Skills

[2006] 0742.PC/0743.PVA

-Before-

Ms Andrea Rivers
(Nominated Chairman)
Ms Helen Hyland
(Specialist Member)
Richard Beeden
(Specialist Member)

DECISION

Heard on 13th, 14th and 15th March and 6th and 7th June, at Bodmin County Court

Representation

For the Appellant: Andrew Sharland (Counsel)
For the Respondent: Philip Coppel (Counsel)

Appeal

1.	This is an appeal against decisions to include the appellant’s name on:

(i)	the list of those considered unsuitable to work with children pursuant to s1(1) of the Protection of Children Act 1999 (“POCA List”) and 
(ii)	the list of those considered unsuitable to work with vulnerable adults, pursuant to s89 of the Care Standards Act 2000 (“POVA List”). These decisions were provisionally made, subject to representations from the appellant, on 24th November 2005 and confirmed on 20th April 2006. 

The appellant appealed to this tribunal against both decisions on 18th July 2006.

2.	The decision to include the appellant’s name on both lists arose out of allegations that he had formed an improper relationship with S, a child in the care of Cornwall County Council (“Cornwall”), between 1st April and 15th May 2004. He had got to know S while she was staying at Pendean Residential Care Home where he was a care worker. It is said that the relationship continued when she moved from there to Kensey Valley Independent Support Unit on 2nd April 2004. S was born on 18th April 1988 and therefore had her 16th birthday during the period in question. It is also alleged that during the course of this relationship the appellant supplied S with alcohol.

Preliminary Matters

3.	The Restricted Reporting Order under Regulation 18(1), made by His Honour Judge Pearl on 4th December 2006 was re-affirmed by the tribunal and is extended indefinitely. This prohibits the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the young person involved, any other young person, and the appellant. The reason for this is to protect the identity of S, whom we find to have been a vulnerable young person at the time of the allegations. Therefore the names of the relevant people will be referred to by initials in this decision.

4.	An application was made by the respondent for one of their witnesses, Violet Giles, to give her evidence by telephone because she suffers from a disability which they said made it impossible for her to attend the hearing. This was opposed by the appellant on the grounds that telephone evidence could not properly be tested in cross examination. A compromise was reached whereby the appellant’s solicitors made available to the tribunal video conferencing facilities at their offices and in this way she was able to give her evidence and be questioned via the video link.

The Evidence

5.	The respondent provided extensive written evidence. There were:

•	documents relating to the disciplinary proceedings and investigations leading up to AP’s dismissal by Cornwall;
•	documents relating to his unsuccessful claim in the Employment Tribunal;
•	documents relating to police interviews undertaken in preparation for a possible police prosecution of AP for an offence of having a sexual relationship with a young person under 18 whilst in a position of trust. This prosecution was not proceeded with;
•	various items of correspondence;
•	records and notes made by care workers;
•	various other documents, including two photographs of S and AP standing together and a receipt from Threshers off-licence;
•	five witness statements for the respondent, prepared specifically for this hearing

6.	We heard oral evidence from the makers of these statements. They were: 

•	Sue Bird, District Manager of Bodmin Services for Children, Young People and Families and Child Protection, who had known S since she was taken into the care of Cornwall in January 1999; 
•	Violet Giles, a residential worker at Kensey Valley at the relevant time; 
•	Danny Mageean, Assistant Director of Social Care and Family Service for Cornwall at the relevant time, who had chaired the disciplinary proceedings in relation to AP’s dismissal; 
•	Helen Ferris, Senior Manager of Children’s Services, who had investigated the allegations against AP prior to the disciplinary proceedings; and 
•	Detective Sergeant Marie Ward, formerly Whybrow, who conducted the police investigation referred to above.

7.	S herself did not give evidence before us and there was no statement from her prepared for these proceedings. The Respondent told us that Cornwall had made a decision not to involve her in these or in the earlier disciplinary and employment tribunal proceedings because they believed that to do so would be harmful to her well-being. Instead, evidence of her allegations was provided by written and oral evidence from others to whom she had disclosed them, as well as a police statement from her, dated 11th August 2004, in which her allegations against AP are set out.

8.	AP made two statements and provided some supporting documentation. He submitted witness statements from his sister, DP, his partner, ES and his mother, AP. All these witnesses were willing to give oral evidence to the tribunal, but since the Respondent did not challenge their evidence it was unnecessary to call them.

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, balance of probability. This was a case where the issue as to whether or not the respondent had provided us with sufficiently cogent evidence to discharge the burden of proof to the required standard was crucial, bearing in mind the seriousness of the allegations and the fact that the maker of the allegations was not available to be cross-examined or to give oral evidence before us. 

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 his 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

Agreed Facts

18.	S arrived at Pendean on 23rd March 2004 following the breakdown of a foster placement and a period of time spent in hospital. She was nearly 16 and had suffered abuse, neglect and instability. She was to spend a few days at Pendean prior to going to live at Kensey Valley, an Independent Support Unit.

19.	AP was a qualified and experienced care worker and on three occasions during 
S’s stay at Pendean he was asked by senior colleagues to take her on outings, as part of his professional duties.

20.	The first outing was on March 31st. He took her to visit her new home at Kensey Valley and then on to see friends at her old school in Wadebridge. Finally he took her to a hospital appointment. 

21.	The second outing was on April 1st. This was the day before S was to go to Kensey Valley, and a trip to the cinema was planned as a leaving treat. That evening another resident at Pendean was causing problems. AP was asked to take S out to a cinema in Plymouth so as to leave colleagues free to deal with the situation at Pendean. In the event he and S did not go to the cinema but went instead for a walk on Plymouth Hoe.

22.	The third outing was on 12 April, after S had left Pendean. AP was asked to take another resident, a girl who had made friends with S, to meet S so that he could take the two girls out together to Lanhydrock, a local beauty spot.

The Allegations

23.	Violet Giles gave evidence that some time in early May, whilst she was driving S back to Kensey Valley, S told her that she was having a sexual relationship with someone from Pendean. Ms Giles said that during the course of that car journey S received a call on her mobile which she said was from AP. In her statement she describes the conversation she overheard as follows:

“The time must have been about 10pm. S looked at the phone and smiled and said it was AP calling her. I heard the male voice and S asked how things were. The male said that he was not doing a sleepover that night and mentioned about two new girls…I could hear what he was saying most of the time when the phone was towards me. They talked about working and S said that she did not know how he did it as she would not be able to handle the hours that he worked. He said that he had been doing sleep-ins last week and that things had been busy. By the answers S was giving it was obvious that they were talking about the young people at the place where he worked.”

24.	The Tribunal also read evidence that at around the same time RJS, a male member of staff at Kensey Valley, admitted to having had sexual intercourse with S on 25th April. He said that while they were together on that day S told him that she had had sex with AP the previous day and also named between fifteen and eighteen other people she had had sex with. 

25.	All these matters were reported to Sue Bird who went to see S, accompanied by DS Whybrow, to ask her about them. S denied having a relationship with AP, though a few days later Vi Giles says that S told her that she had lied to Sue Bird and DS Whybrow and that she was, in fact, having a relationship with AP. 

26.	Lorna Haydon, S’s keyworker, also gave evidence that S had told her, on a date which she could not recall, that she had had a sexual relationship with AP. In her statement she says that S repeated the allegations made to her at the time, in much the same terms, when she was interviewed by Helen Ferris. That interview took place in April 2005 in the presence of Lorna Haydon, as part of the disciplinary investigation. Following that interview Lorna Haydon had signed a statement, prepared for her by Helen Ferris, setting out what S had said.

27.	On 14th July S was interviewed by DS Whybrow, in the presence of Sue Bird. She now said she wished to make a complaint against AP and made a number of allegations. Those allegations, which were later set out in a formal police statement, which she made to DS Whybrow on 11 August, were as follows:

(i)	that on 1st April 2004, when AP was driving her to visit her new home at Kensey Valley, he had stroked her arm while she was lying dozing on a bench seat in the front of his car;
(ii)	that the following day, on a planned trip to the cinema, AP had taken her instead for a walk to a place near a beach reached by a car ferry. They had hugged and he had taken her to a pub and bought her alcohol. Afterwards they had gone for a walk on the beach and he had kissed her face and her body. They then returned to Pendean. He had asked her not to tell anyone about what had happened but to say there had been nothing on at the cinema and so they had gone to Plymouth Hoe. Later he had phoned to tell her he had “enjoyed this evening”;
(iii)	that he had phoned her every night;
(iv)	that one day AP had taken her and another resident from Pendean for a trip to Lanhydrock. At the end of his shift, he had taken the other girl back to Pendean and then come back to Lanhydrock to meet S. They had gone for a walk in the woods and had had full sexual intercourse on the ground there;
(v)	that over the following six weeks she had had sex with him on Rock beach and twice in his car in the Berrycome Hill Car Park;
(vi)	that he had bought her a necklace and a bracelet for her sixteenth birthday on 18th April;
(vii)	that they had been for a walk on Bodmin Moor and to a pub at St Breward;
(viii)	that on one occasion they had been to Asda together but “had to split up in case anyone saw us”;
(ix)	that he taken her to pubs on a number of occasions, including “The Hole in the Wall” in Bodmin, and bought her alcohol;
(x)	that he had given her two of his tops to wear;
(xi)	that during the course of the relationship he frequently phoned her or sent text messages;
(xii)	that the relationship had ended on May 15th at her request;
(xiii)	that they only used contraception once or twice;
(xiv)	that she had consented to the sex and the physical contact.

28.	S also gave DS Whybrow a list of seven dates, marked “Dates I met with AP”. Beside the entries for the 8th, 12th, 20th and 24th of April she had written “slept together”.

29.	There was further evidence in respect of the phone calls. Violet Giles said that on June 13th she had been present when SA, another resident at Kensey Valley, who was using S’s phone, received two calls from an unknown number which, on further investigation, turned out to be AP’s number. SA said that AP frequently phoned S. Lorna Haydon gave evidence of a similar incident when SA received calls on S’s mobile telephone from AP’s number.

30.	The respondent submitted that the photos of S and AP standing together were taken on the occasion when they had met at “The Hole in the Wall” pub and were evidence of an improper relationship between them, and that the Thresher’s receipt was evidence of another occasion on which he had bought her alcohol.

31.	The appellant denied almost all the allegations. He accepted that he had met her at the Hole in the Wall pub in Bodmin one Saturday at lunchtime on April 24th, and that this was the date on which the photographs were taken, but said that this was a chance meeting. She was in the pub with another man, said to be her brother, who had taken the photographs of S and AP, at S’s request. He accepted that it was unwise of him to have agreed to do this. 

32.	In relation to the telephone calls he agreed that he had called S and sent her text messages some ten to twenty times, using his personal mobile phone, but said that this had only been in response to calls or messages from her at a time when she was feeling unhappy at Kensey Valley and that in any event he had not contacted her after his suspension on May 6th. 

Findings 

33.	Having heard and read the evidence above, the tribunal did not accept that S’s allegations that there was a physical or sexual relationship between her and AP were proved on the balance of probabilities. The reasons for this were as follows:

(i)	Most of her evidence was presented to us in the form of reports of disclosures she had made to others. She was not present to be cross-examined by the appellant, or questioned by us and we were therefore unable to assess her truthfulness by seeing her ourselves. No medical evidence or detailed explanation was given by the respondent to explain why they considered it would be harmful for her, now aged 19, to give evidence to us. Nor did they explore the possibility of calling her to give evidence using facilities for vulnerable witnesses, which could have been made available for the hearing.
(ii)	There were a number of inconsistencies in her allegations.
(iii)	The only statement we had from her was a police statement, made some time after the events complained of, and after they had been discussed by her with a number of other people. There was no contemporaneous statement. 
(iv)	We saw a medical report following a previous incident in August 2003 when S had claimed to have been sexually assaulted. Dr Topley, the consultant paediatrician who examined her after shortly afterwards concluded in his/her report that:
“In summary, this 15 year old reports accepting a drink from strangers, which she suspected was spiked with a medication and she suspected that she was sexually assaulted. Her demeanour in the clinic was inconsistent and her drowsiness and unstable walk contrasted with her verbal clarity. Her genital examination suggests that she has had penetrative sexual experience but there is nothing to suggest it was recent.”
Clearly Dr Topley did not believe her story and this suggests that she may well have lied about an allegation involving sexual intercourse in the past.

34.	We do however find that the telephone calls and text messages which AP on his own admission made to her, are evidence of some sort of relationship between them. We further find that this relationship is likely to have been an improper one, bearing in mind that AP only had professional responsibility for S for a few days, yet continued to contact her by telephone for some time after that and that the calls and text messages were from his personal mobile phone rather than the work mobile phone or land line. 

35.	We do not accept AP’s evidence that these calls and messages were sent solely in response to distressed calls from her. Had that been true his prime concern would have been for S’s welfare, and as an experienced care worker it seems to us probable that he would have discussed the content of those calls with senior colleagues, so as to help deal with S’s distress, something which he did not do. It is also clear from the tenor of the conversation which Violet Giles personally witnessed, as set out above, that this conversation was of a personal nature, and not simply a supportive response from a concerned professional

36.	We find that he concealed from his employers the telephone contact with S knowing this contact to be wrong. This was demonstrated by an extract from a verbatim report of his interview with DS Whybrow on 21st July 2004 when he said that he had not told his employer about it because: “It’s a definite no-no. You’re not allowed to do it”. 

37.	He also sought to mislead us about this in his oral evidence when he said that this was considered to be a “grey area” at Pendean, and that he was not certain at the time whether or not his behaviour in making the telephone calls would be considered improper.

38. We find that he lied about the fact that he had had telephone contact with S to 
DS Whybrow. The verbatim report referred to above shows that he denied it at 
the beginning of the interview and only admitted it later, when repeatedly questioned about it.
 . 
39. We summarise our findings as follows:

(i)	that he made a number of telephone calls to S using his personal phone;
(ii)	that these were personal phone calls, not calls made in his professional capacity and therefore evidence of an improper relationship;
(iii)	that he made these calls knowing it to be unprofessional and wrong;
(iv)	that these calls were made after S had left Pendean and therefore when his professional involvement with her had ceased;
(v)	that he concealed the making of the calls from his employers;
(vi)	that he initially lied to the police about this;
(vii)	that he further lied in his evidence to us, both about the nature of the calls and in telling us that it was not clear to him whether or not it was improper to continue to have telephone contact with her on his personal mobile phone. 

41. We find that allegations that he supplied her with alcohol are not proved. There is no evidence to support the allegation other than S’s evidence, which, as stated above, is not sufficiently reliable to persuade us without further corroboration. The Threshers receipt produced by the respondent as evidence that he purchased alcohol is not itemised and could equally well have been for confectionery or soft drinks. 

Decision

Was there misconduct?

42.	We find that AP was guilty of misconduct by making a series of telephone calls to S on his personal mobile phone, after she had left Pendean, knowing that this was in breach of his professional duty, and concealing it from his employers.

Did the misconduct harm a child or place a child at risk of harm?
43.	We find that his conduct may have harmed S and in any event did place her at risk of psychological harm. S, as a consequence of a long history of abuse and neglect, would have been extremely vulnerable to any suggestion of a personal or affectionate relationship with a man and likely to misinterpret it. The fact that he made personal telephone calls to her above and beyond their professional relationship would, at the very least, have been likely to nourish any hopes she might have had that the relationship might go further and would have further damaged her capacity to understand the necessary boundaries in future relationships.

Is he unsuitable to work with children?

44.	In entering into an improper relationship with S, AP was abusing a position of trust in relation to a vulnerable young person.

45.	In his evidence, AP told the Tribunal that he now realised that he should not have made the calls and would not do so again. However, we cannot accept his assurances about this because of the fact that, as we have found, he sought to deceive his employers, the police and this tribunal. We therefore place no reliance on these assurances.

Is he unsuitable to work with vulnerable adults?

46.	We are mindful of the fact that the term “vulnerable adults” applies not only to the elderly and infirm, but also to adults, including young adults, under a variety of different disabilities. The findings we have made of dishonesty, of not respecting proper professional boundaries, and of taking advantage of a vulnerable young person, would apply equally to vulnerable adults.

47.	We therefore uphold the decisions both to include his name on the PoCA list And on the PoVA list. 

Accordingly our unanimous decision is:

APPEAL DISMISSED

Ms Andrea Rivers
(Nominated Chairman)
Ms Helen Hyland
(Specialist Member)
Mr Richard Beeden
(Specialist Member)