Barrett v Secretary Of State [2006] EWCST 849(PC) (9 October 2007) 

TERRY ALAN BARRETT

-and-

SECRETARY OF STATE 

Appeal No [2006] 849.PC

On 9 October 2007 sitting at the Care Standards Tribunal, Pocock Street, London

BEFORE

Mr I Robertson
Ms B Chatfield
Ms M Diamond

REPRESENTATION

Mr Barrett appeared unrepresented

Mr P Coppel (Counsel) instructed by the Treasury Solicitor for the Secretary of State

THE APPEAL
1.	This is an Appeal by Mr Terry Barrett against his inclusion on the Protection of Children Act list. His inclusion on the list has a slightly unusual history in that he was initially referred to the Consultancy Service Index following a referral from Kent County Council on 27 February 1995. Mr Barrett says that he never received a letter informing him of this. On 21 June 2000 the Department of Health sent him a letter at an address in Wales informing him that he had been transferred to the Protection of Children Act list. This letter sent Recorded Delivery was returned undelivered. On 25 October 2006 Mr Barrett obtained the results of a CRB check undertaken by his then employers. This revealed the listing. On 13 November 2006 the Secretary of State sent a formal letter informing Mr Barrett of his rights of Appeal and a formal appeal was lodged on 6 December 2006. This is the hearing of that Appeal.

BACKGROUND

2.	Mr Barrett trained as a Probation Officer obtaining a CQSW in 1973. In 1980 he joined the Specialist Fostering team in X County Council where he worked as a fostering officer. In 1987 he joined an independent fostering agency and he and his wife began fostering predominantly adolescent children. He told us he had fostered 85 children in all. In 1993 allegations were made against Mr Barrett and 5 children placed in his care by X County Council were removed from his care and he ceased fostering. He moved to Wales and for a time ran his own restaurant. He later joined the prison service and now works for a Government Department
 
3.	The Secretary of State alleges that Mr Barrett has in the past indecently assaulted a number of young girls and in the light of this is unsuitable to work with children. Mr Barrett denied all allegations and points to a blemish free career since 1993. We will examine each of the allegations in detail below. We heard live evidence from a Social Worker Ms A, a Detective Constable J and from Mr Barrett himself.

THE LAW

4.	By S1(1) Protection of Children Act 1999 the Secretary of State has a duty to keep a list of individuals who are considered unsuitable to work with children, By Section 2 any organisation may refer an individual if certain conditions are satisfied.
 
5.	 S4 of the Act gives a person so referred the right to appeal to this Tribunal. By S 4(3), the Tribunal may only dismiss the Appellant’s appeal if:

(a)	it is satisfied that he 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)	it is satisfied that he is unsuitable to work with children.

6.	There are in our view three tests to apply. The first two tests are conjunctive and the third only comes into play if the first two are both satisfied. The Tribunal has firstly to show an act or acts of misconduct AND secondly that that act ( or those acts) have harmed a child or placed a child at risk of harm. It is only if those two tests are satisfied evidentially, applying the civil test of balance of probabilities as explained by Re H and R (see below), that the third test is reached. We accept that the test of suitability is not an evidential test per se, but an exercise of discretion by the Tribunal applying its experience to the evidential matters it has considered previously. In this case Mr Coppell has argued that if we make a finding of misconduct then it follows that harm has been caused. We accept that submission in this case because of the nature of the misconduct alleged. 

7.	He also argued in the light of the misconduct alleged in the absence of evidence of serious “redemption” (our word) Mr Barrett is ipso facto unsuitable. Again in the light of the misconduct alleged we accept that submission. There may be cases of sexual assault upon children where there is evidence of true acceptance, contrition, treatment and reduction in risk, but this patently does not apply in this case where Mr Barrett’s case is one of complete denial.

8.	The Tribunal must consider unsuitability as at the date of the hearing before it. The Secretary of State bears the burden of persuading the Tribunal that both limbs of PoCA, s 4(3) are met. 

THE ALLEGATIONS

9.	The principal allegation is with regard to a woman “D”. She provided a statement to the tribunal. She is 42 years of age. She says that she met the Appellant whilst in a Children’s Home aged 16. He visited her and befriended her. He took her out in his car and had sex with her. Significantly she stated that the abuse first started after he suggested he massage her as she was tense. She says that they frequently had sex in his car, She said that she was resigned to the abuse as her life experiences had effectively desensitised her. Indeed she describes feeling that he was “one of the good guys”. 
 
10.	She said that she moved out to a bedsit in a local town and he visited her there and had sex. She then formed a relationship with a young man and had a baby. She was placed in a mother and baby unit and after a gap of a year met Mr Barrett again at the unit and they had sex once more.

11.	“D” says that she was asked to look after two children (when aged about 25) and met Mr Barrett again. She says she went on holiday with him and a group of children to France in 1990. She alleges that he raped her during this holiday.

12.	The second allegation involves a young girl “P”. She was working as a waitress for Mr Barrett in Wales. She was 17 years old. She alleged that in February 1995 Mr Barrett was teaching her massage techniques, got her stripped to her bra and pants and whilst massaging her touched her pubic area. The evidence for this comes via a police officer who interviewed Mr Barrett in respect of this in 1995 DC J.

13.	The third allegation involves a child “A”. This is in the form of a police witness statement made on 10 May 1990. When she made the statement she was an adult but refers back to a time when she was 14 and fostered by Mr and Mrs Barrett. She described going on holiday with the family to Spain. She began to feel uncomfortable in his presence. He encouraged her to bathe topless and began rubbing suntan lotion on her. On return from holiday he began coming into her room. He began touching her and masturbating. This occurred up to 4 times a week until she moved placement.

14.	The fourth allegation involves “C”. What she says is recorded in a contact note made by a social worker from the London Borough of Z on 1 December 1994. This describes a long and distressing session with the girl at her foster home. Eventually she described “Dad Tel” coming into her room and touching her privates. She felt his willy and he smelled of wine. There is also a précis of a video interview with C on 4/4/95. In this interview she describes Dad Tel raping her. The note records the following “C is of limited understanding and has no concept of time…..Her concentration was very poor she spoke very quietly”

15.	The fifth allegation involves “B”. This relates to a note of a social worker that when travelling back from an evening out with another couple Mr Barrett had put his hand up her dress whilst seated in the back of a car with her.

THE EVIDENCE
16.	We heard evidence from Ms A, DC J and Mr Barrett. 

17.	Ms A told us that she was the current social worker for “D”. She was involved with her children in Care Proceedings. She had met her over 50 times and knew her well. She told the Tribunal that D was an articulate woman but that she had led a very traumatic life. When approached about Mr Barrett she described “D’s” whole demeanour changing. She changed becoming almost a whimpering child in a manner completely out of character and in a way only previously seen when there was a real risk her children would be removed from her. Her view was that the change was real and significant and that she would not be able to go through the trauma of giving evidence even with Special Measures in place.

18.	DC J said that he was the arresting officer in respect of the incident with the girl P.  He never met P. He confirmed however that she was 17 years old and that in interview Mr Barrett accepted that he had been giving her massage lessons but that his hand had accidentally slipped under her pants and touched her pubic hair. His recollection was that P was alone in the room with Mr Barrett

19.	Mr Barrett dealt with the allegations as follows;

20.	“D” He accepted that he knew D. He said that he had met her in his role as a fostering officer when she was placed in the Children’s home. He said he only met her twice there at most three times. They never went out. His acquaintance with her was short and nothing untoward occurred. He may have met her again in the mother and baby unit but can’t recall and did not see her again until she was 25 and once more in his fostering role he had to turn her down as a foster carer. He could offer no explanation for her version of events other than her holding a grudge regarding this. He confirmed that he did take a group of children to France to a bar as described by D but denied she went on this trip. He said that she must have got the detail from another young person. He described her as a deeply troubled and abused young girl prone to making allegations

21.	“P” he explained that he was running a restaurant and with a partner was planning to open a Spa nearby. He obtained volunteers to assist him with this and who he would train up as he is a qualified masseur. He said he thought P was 18 as she worked in his restaurant. He said that there were a group of 3 young people effectively practising on each other under his instruction. He was demonstrating a particular technique on P when his hand accidentally slipped under her pants onto her pubic hair.

22.	“A” He was able to remember who this child was. He denied anything untoward occurring and his only explanation for her comments was that at the time she was having difficulties going through her life story book

23.	“B” this incident had been relayed to him by his friend who was also in the car. He said that he was very drunk and could not remember anything of the incident

24.	“C” Again he knew who this child was and accepted that the description “dad Tel” applied to him. This child came to him when aged 6 and stayed for 5 years. He got very close to her. He was shocked and distressed she had made these allegations. He described her allegations as “transference”. Nothing had occurred whilst in his care

25.	Mr Barrett told us about his career history and reiterated that there were no allegations since 1995 and before 1985. He emphasised how shocked he had been in 2006 to discover he was on the POCA list and how many of the allegations were never put to him at the time. He was surprised given the seriousness of some of the accusations that he was never formally interviewed.

THE STANDARD OF PROOF

26.	The law regarding the standard of proof to be applied in these cases is now well established and clear and although decided in a Care case applies in this jurisdiction also Re H and R (Child Sexual Abuse):Standard of Proof) [1996] 1 FLR 80. 

“The standard of proof in cases involving the care of children was the ordinary civil standard of balance of probability. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence would be established” per Lord Nicholls 96D

27.	We have before us a plethora of documentation detailing these various allegations. We have been concerned about the quality of much of this evidence. Most of it has been heavily edited obscuring names and critically dates of birth. It is very old and mostly second or even third hand hearsay recordings of what children have said to others. We have to be very careful therefore in considering this documentation to ensure that we are able to put sufficient weight on the evidence before making any findings.
 
THE FINDINGS
28.	We start with “D”. We have her statement. We fully accept that the weight that we can attach to this is reduced because she is not available to give evidence and be cross examined. We make no criticism of the Secretary of State for this. The decision not to call her was based upon her welfare and we respect it. D makes the most serious of allegations including anal rape. We have to be satisfied that the evidence for making any findings on her allegations is cogent. We do find what D said to be compelling and believable for the following reasons;

a)	There is a consistency of reporting over nearly 20 years that maintains details in a manner that is inconsistent with a person lying
b)	Her recollection of details of matters such as the France trip which Mr Barrett denies she went on cannot have been obtained save by being there
c)	She has no motivation to lie. Mr Barrett’s rationale about her seeking revenge for being turned down as a foster carer does not bear scrutiny and in any event we know from the documentation that she did actually look after children for a local authority
d)	Ms A’s description of her reaction to the Secretary of State investigating Mr Barrett is compelling
e)	We felt that Mr Barrett made a very unsatisfactory witness, he was evasive in answering questions and vague about dates and so forth. He displayed a complete lack of empathy for all the young girls in question.
f)	The evidence in the documentation regarding the other 4 girls allegations which were all made at different times in different places and cannot have been made up collaboratively, shows a remarkably similar approach to abuse; massaging, touching and the presence of alcohol with persons who he is in a position of trust with being his hallmarks. We find that these statements are corroborative of that made by D.

29.	We are very concerned about the “P” incident. Upon Mr Barrett’s version of events he arranged for a 17 year old girl in his employ to strip to her underwear and then he, a large man of nearly 50. laid his hands upon her so intimately that he “accidentally” touched her pubic hair. When we asked him about this he agreed that it was inappropriate but his rationale for the inappropriateness seemed to be that it placed him in a dangerous situation. He showed not the slightest concern for the feelings of this young girl. We do not accept his account. We believe that as DC J said this girl was alone with him and he took the opportunity to assault her for his own gratification using massage as his excuse and entry into abuse. 
. 
30.	With regard to B Mr Barrett’s evidence that he was too drunk to remember anything is bizarre in the circumstances. Given that he does not deny the allegation and given our findings above we consider on the Balance of Probabilities that he did assault B in the manner alleged.
31.	With regard to A we have the advantage of a police witness statement taken at the time. This is first hand evidence and in the light of our findings above we feel that this evidence is sufficiently cogent to make a finding that the abuse as described by her did, on the balance of probabilities, take place.
 
32.	This leaves us with C. We find what she says to be compelling and again shows a pattern of activity that is reminiscent of the other allegations. Mr Barrett comes into her bedroom, touches her and smells of wine. She has no opportunity of ever meeting any of the other young people and the account is spontaneous and contemporaneous. We accept that the documentation with regard to this allegation is not as full as for the others but nonetheless are struck by the similarity of approach. Again Mr Barrett could offer no explanations as to why C should have lied and again therefore we find on the Balance of Probabilities this allegation proved also.

33.	As indicated at 6 and 7 above having found Misconduct in respect of D, P, A B and C we have no difficulty in finding that this caused harm. Equally we have no difficulty in saying that given Mr Barrett’s complete denial and presentation today, he remains a risk to children. It follows therefore that we find that he is unsuitable to work with children

DECISION
34.	Appeal dismissed

This is the unanimous decision of the Tribunal

Mr I Robertson
Ms B Chatfield
Ms M Diamond