HLM v Secretary of State for Education and Skills  [2006] EWCST 766(PC) (15 March 2007) 

In the Care Standards Tribunal

H.L.M. – Appellant

v.

Secretary of State for Education and Skills

[2006]0766.PC

Before
Rev. Maureen Roberts (Chairman)
Mrs. Jenny Lowcock 
Mr. James Black

Heard on the 9th March 2007 at Newcastle Combined Courts Quayside Newcastle upon Tyne

The Appellant was represented by Mr. Jonathan Barker, Solicitor of Richmond Anderson Goudie Solicitors. She gave evidence to the Tribunal. 

The Respondent was represented by Mr. Coppel of Counsel instructed by Ms Francesca Debenham of the Treasury Solicitor. The Respondent called two witnesses: Mrs. Melanie Hirst the owner and manager of the nursery where the Appellant had started work and Ms Gail McGregor one of the experts involved in preparing the Sexual Behaviour Unit report on the Appellant

The decision

1.	The Appellant appealed against the two decisions of the Respondent contained in a letter to the Appellant dated the 12th October 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.	By a letter dated the 20th November 2006 the Respondent wrote to the secretary of the Tribunal as follows: ‘Please note that the PoVA appeal is no longer being opposed’. Accordingly in an order dated 24th November 2006 the appeal against the PoVA was determined in the Appellant’s favour.
3.	At the Directions hearing on 18th December 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 the Appellant or child involved in the matter. We continue that order. We further order that the decision is published under Regulation 27 in an anonimised form to protect the private life of the Appellant. 

The background

4.	The Appellant is a young single woman now aged 20. She is a graduate from Darlington College holding a diploma in Childcare and Education after following a two year course. In her final year, HLM was student of the year and most improved student on the course. After she finished her course in June 2005 she applied for a job in a new nursery that was being built in Barnard Castle where she lives. She was interviewed in June 2005 by Mrs. Hirst, and offered the job, on the 28th June. The job was to start on the 1 August 2005 just before the nursery opened in order to help set it up. It was agreed that HLM would provide some holiday cover in the other nursery owned by the company. She worked from the 4th  to 6th July at Highbank nursery, and she started work at the Ladybirds Stockton on Tees nursery on the 11th July.
5.	During her time in the Stockton nursery she was given the basic induction course and always worked with others. It was quite a long day for her as she had to get up early and travel from her home in Barnard Castle to Stockton. Mrs Hirst was pleased with her progress. She noted that she seemed a natural with children and while she was young (18 at the time) and needed to gain confidence, she was very capable and seemed to have settled in well with the other staff.
6.	On Friday the 15th July 2005 when HLM was carrying a 2 year old boy out to play Mrs. Hirst noticed that she was carrying him with her hand between his legs in the groin area. HLM asked Mrs Hirst “am I alright to hold a child like this?” Mrs Hirst said that it would be more appropriate to hold a child by scooping them under the legs and she tried to show her what she meant. She said “you can hold a baby like that but for a child of this age it is more appropriate to do it this way”. Mrs Hirst thought no more about it and considered that it was quite usual for a new member of staff to be shown a more natural and comfortable way of holding a child of that age.
7.	 Later in that day HLM went for her lunch break at 2-00pm and she became very upset in the staff room. Mrs. Hirst the manager came and had a private conversation with her. Initially Mrs. Hirst thought that HLM was upset about being guided about holding the child. The Appellant was crying and had to be asked three times ‘what was the matter’ She said ‘I’ve had these thoughts, these feelings’. When she was asked to explain what she meant she said ‘I want to touch the children’ and indicated that she wanted to touch them between their legs.
8.	 Mrs. Hirst told her to go home and that she would phone her mother. HLM came back into the office and said to Mrs Hirst that she wanted to do something to a particular boy. She said it was the boy she had been carrying earlier. ‘I want to suck a boy’s penis’ and made motions with her hand. Mrs. Hirst sent her home again but HLM came back five minutes later and said she wanted to tell her about other children she wanted to touch. Mrs. Hirst stopped her saying any more and escorted her to her car and told her to go home. Mrs. Hirst wrote to her that day terminating her employment stating that her thoughts were inappropriate and made her unsuitable to work with children.
9.	Mrs. Hirst reported the matter to Ofsted verbally on the 15th July 2005. Subsequently she wrote to Ofsted on 13 October 2005 and to the PoCA unit on the 20 October 2005.. 
10.	 The Respondent, having considered the information, provisionally listed the Appellant and informed her of this listing by a letter dated 31st October 2005. The letter stated that the decision had been made following her dismissal from her job at the nursery.  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 12th October 2006.

The law

11.	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) of the Act 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) directs his removal from the list; otherwise, it shall dismiss the appeal or direct the individual's inclusion in the list.
12.	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. 
13.	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 as defined in the case of C v Secretary of State for Health (CA). We 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

14.	We read the statements provided and heard from the witnesses listed above and from the Appellant. 
15.	The factual evidence of what had happed on the 15th July 2005 was not in dispute and Mrs. Hirst confirmed what had taken place as set out above. She also explained the steps she took to follow up the matter and ensure that she had followed the right procedures and told all the relevant authorities.
16.	Mrs. Hirst stated that she was quite satisfied that nothing improper had happened and that HLM had not acted on her thoughts. However she considered that anyone who had such thoughts should not work with children, “you don’t know if somebody has the thoughts and may act on it – its not right - people who work with children should not be thinking about these things”  She held the view that HLM was  unsuitable to work with children and had terminated her employment. She said she thought it was appropriate that HLM had told her about it and had started to get help.
17.	Mrs. Hirst came across to the Tribunal as a competent and professionally qualified junior nursery teacher. In 2005 she was a mother of one young child who was at the Stockton nursery. 
18.	The Appellant gave an account of her training at Darlington College. This had been a two year full time course leading to a diploma in Child care and Education. She had done extensive practical placements in local schools. The course had included study of child protection issues. She confirmed that there had been a time in college in the last six months of her last year when she had become very anxious about her assignments getting up at all sorts of hours of the night to check them and on one occasion thinking she had copied a fellow student’s paper when she knew she hadn’t done so. She said she had been worried and had sought help and received some counseling which had given her coping strategies which had assisted.
19.	Shortly before she started work she described an incident when she had gone to help for a day at Green Lane School (the Green Lane incident). She was helping a little boy from a swing and was anxious that she had brushed his penis and later was worried about doing something wrong and touching him. There appears to have been an inappropriate sexual thought associated with this incident but it was not clear when the Appellant had worried about it. 
20.	The Appellant confirmed that she was excited and happy at the prospect of her new job. However in the week beginning 11th July 2005 she said that she began to have these sexual thoughts about the children The thoughts and her arousal were not under her control. She felt disgusted, disturbed and frightened by them. She said she was never tempted to act on them. She said that Mrs. Hirst was approachable and perhaps she should have mentioned the thoughts earlier but that she was frightened and did not know what people would think. On Friday 15th July when she broke down and spoke to Mrs. Hirst she wanted to share the situation and was seeking help. Mrs. Hirst agreed that the Appellant’s actions had been a cry for help.
21.	Following her disclosure on th 15th July 2005 the Appellant was seen by her own G.P. and a consultant psychiatrist  Dr Walker whose report dated August 2005 we had the benefit of seeing. In his opinion: ‘this young woman does not have a formal mental illness. I would not, at this stage label her as having obsessive compulsive disorder. Her thoughts were along the lines of obsessional ruminations. The first ones at times of anxiety during the exam and the second one in the context of traveling to Stockton every day, working hard and feeling tired and working in an environment where meticulousness was essential. She normally has a meticulous and very organized personality structure. In terms of character, she would appear to have an exemplary, warm extremely genuine nature. She partly found herself in hot water with her employer because of her honesty.”
22.	 She subsequently has been receiving cognitive behavioural therapy from a community psychiatric nurse. The Appellant told the Tribunal that she had no intention of working with children. She is at present doing a computer course and some voluntary work in a charity shop. She intends to do a course in office work.
23.	The Appellant presented to the Tribunal as described in the psychiatric reports; as a young, woman who was rather naïve. She was open and honest about her feelings and the thoughts she had had and appeared, even during the Tribunal hearing, to be very upset about them.
24.	The Tribunal heard from Ms Gail McGregor Consultant Forensic Clinical Psychologist and core member at the Sexual Behaviour unit in Newcastle. We had full report dated 5th October 2006 from her prepared after two extensive interviews and tests by her and her colleague Dr James Stoddart.
25.	The salient paragraphs  of the report are as follows:
Para 46. “Her experience of sexual arousal triggered by contact with children would appear inconsistent with a view that her inappropriate thoughts are solely related to anxiety-mediating obsessional ruminations. It is possible to view them as relating to an inappropriate focus for sexual feelings in a young woman who remains sexually naïve and has difficulties in managing stress and intense emotion. However it is also possible that a more enduring pattern of arousal to children may persist over time, dependent on her development path.
Para 49.HLM is performing some voluntary work, attending a gym and line dancing, and also continuing to look after her cousins. She appears to have been appropriate in the way he has dealt with her intrusive thoughts by asking for help and being compliant with her pharmacological as well as psychological treatment. She also appeared clear during the assessment that working with children is most probably not in her, or the children’s best interests. HLM acknowledged some continuation of her intrusive, inappropriate sexual thoughts and acknowledged that if she were to go back to working with children, or to have future stressful occurrences, these thoughts could again become problematic. Under conditions of significantly increased stress she is likely to have greater problems in maintaining the control strategies she has developed.
Para 51. It is encouraging that HLM reports that she has never acted on her inappropriate thoughts, has asked for help when she has found her symptoms particularly difficult to cope with, and had been compliant with her physical and psychological treatments. She appears to have an extremely supportive family and made use of a mental health advocate.
Para 52. By her own account she still has intrusive inappropriate sexual thoughts towards children which have decreased in intensity since she starting cognitive therapy. She realizes that these thoughts could become more frequent and intense again if she were to return to work with children or indeed to become particularly anxious or depressed in the future. She now states that she does not want to work with children and would rather pursue other options.
Para 53. It is the SBU’s opinion that should she return to working with children the most significant risk that is likely to be apparent is a deterioration in her own mental health and psychological distress. Should this become as extreme as in the past it is our view that her suitability for any form of employment could be compromised for a time.
Para 54. However, as outlined in para 46 above we are unable to completely exclude the possibility of a more direct risk to children resulting not only from the increased frequency and intensity of inappropriate thoughts in the context of her vulnerable personality structure and coping but also from the possibility of a more stable sexual interest pattern developing in respect of children. The course of HLM’s future social and sexual development together with the stability of her mental health will have a significant  influence on determining whether the latter course is confirmed or avoided.”
26.	We have quoted form this report extensively as it summarises the evidence of Ms McGregor. The Tribunal were very impressed by her professional knowledge. She was asked a great deal about the potential risks involved and while explaining and expounding on her report her views are set out in the paragraphs above.

Findings and the law
27.	We find that the Appellant a young woman of 18 at the time of the incident had totally inappropriate sexual thoughts about the children in her care. We further find that she did not act upon those thoughts. She was extremely distressed by them. She had just started her first job. On the early afternoon of the fifth day after these thoughts had started she broke down and told her employer about what was happening. She lost her job. She sought and received help.
28.	The Tribunal has to apply the law to these findings. The Protection of Children Act 1999 gives a three stage test. The Tribunal has firstly to be satisfied that there has been an act or acts of misconduct and secondly that that act or acts have harmed a child or placed a child at risk of harm. It is only if those two tests are satisfied evidentially that the third test is reached. That is that the individual is unsuitable to work with children.
29.	Misconduct is not defined in the Act. We note that in Angela Mairs v Secretary of State [2004] 269.PC the Tribunal observed that “misconduct could range from serious sexual abuse through to physical abuse (including inappropriate physical restraint) and/or poor child care practices in contravention of organizational codes of conduct”.  They referred to the case of Doughty v General Dental Council [1987] where misconduct was said to be a “failing short whether by omission or commission of the standards of conduct expected from members of (a) profession”. 
30.	In weighing up the first two tests we looked at the case of CN v Secretary of State [2004] 398PC 399PVA where it was accepted that the actions of a person who accessed child pornography sites satisfied the test in the Protection of Children Act section 4(3) (a). “Those who access such sites are furthering the abuse (of children)… the children are at risk of harm as defined by the Children Act 1989 section 31 which states that harm means ill treatment or the impairment of the health or development ‘of the child.” 
31.	It was put to us that the Appellant should have reported the ‘Green Lane’ incident when she applied for the nursery job but we find that the reports about what happened on that occasion are not clear. In addition her anxiety about it occurred some time after the event when she looked back to it.
32.	It was put by the Respondent that she should have removed herself from the nursery on the first occasion that the thoughts occurred and that she should have told her employer sooner. For the reasons given below we do not consider that she behaved unreasonably in doing what she did. She hoped that the thoughts would go away and that she would settle in to her new job.
33.	On the facts before this Tribunal we find that while the Appellant’s thoughts were inappropriate and disturbing they did not amount to misconduct which harmed a child or placed a child at risk of harm, because she did not act on them AND she reported them as quickly as could be expected in her circumstances i.e. that she was young, this was her first job and she was distressed and frightened by the thoughts and other people’s reaction to them. She then sought and has accepted professional help. 
34.	In these circumstances it is not necessary for the Tribunal to make a finding about suitability. However we record that at present the Appellant is not suitable to work with children. She acknowledges this herself and states that she does not intend to work with children. Whatever her intentions it is plain that for the foreseeable future she would not be employed in any setting involving children because she would have to disclose these past events.  

The appeal is allowed. Our decision is unanimous.

Rev Maureen Roberts
Mrs Jenny Lowcock
Mr. James Black

15th March 2007