Philliskirk v Secretary of State for Children, Schools and Families [2007] EWCST 115(PT) (20 May 2008) 

Kevin Philliskirk – Appellant

v

Secretary of State for Children, Schools and Families – Respondent

[2007] 1115 PT

Before Ms Maureen Roberts
Ms Pat McLoughlin
Mr. James Black

A hearing held on the 13th May 2008 at the Leeds Social Security Tribunal, York Place Leeds.

The Appellant represented himself. 
The Respondent was represented by Miss K Olley of Counsel instructed by Ms Francesca Debenham of the Treasury Solicitors. Mr. John Shields Casework Team Manager in the Children’s Safeguarding Operations Unit at the Department for Children, Schools and Families gave evidence for the Respondent.
The Appellant gave oral evidence. 

1. The Appellant appeals against the decision of the Secretary of State for Education and Skills made under section 142 of the Education Act 2002 in a decision letter dated 15th June 2007. This decision bars the Appellant from working in any capacity with children as provided by section 142 of the Education Act. The ground relied on by the Secretary of State was the Appellant’s misconduct. 

 2. The Tribunal continues the order that was made under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations made by His Honour Judge Pearl on the 12th February 2008, restricting the reporting of the proceedings.  We are satisfied that this order is necessary in this case to safeguard the welfare of the child involved in this matter. This order should continue. 
Background and chronology leading to the decision

3. The facts of what happened were not in dispute. The Appellant, a 26-year old language teacher worked as a teacher in Beckfoot School Bingley West Yorkshire from February 2005 until September 2006 when he resigned from his post after admitting to the headmaster that he had had an inappropriate relationship with a 16-year old female pupil.

4. The Appellant had gone on a school trip to Germany, with forty year 8 and 9 pupils together with five other teachers and two pupils from year 11. They were away for a week and on the coach trip home the Appellant sat next to one of the year 11 students, H, at the back of the coach and they talked. She told the appellant that she fancied him and he told her that he was having marriage difficulties. He told her that a relationship could not happen, however they engaged in touching in the genital area over their clothes, initiated by her. 

5.In the following days they communicated by e-mail and internet messenger and the Appellant went to her home where they kissed and touched each other under their clothes but did not have sex. There was a further meeting in a park that week when they talked and kissed and mutually agreed to end the relationship. The Appellant said they had both decided that what was happening was wrong.

6. The Appellant approached the headmaster and told him about the relationship. The headmaster asked the appellant to put in writing what had happened and this he did. The appellant also told his wife about the relationship.

7. The matter was reported to the police. The pupil did not want to make a complaint and the CPS decided that as she did not wish to give evidence she would not make a reliable witness. The Appellant was offered and accepted a caution, on 7th August 2006, for “engaging in sexual activity other than sexual intercourse with a person under 18 when in a position of trust”, an offence under section 16 of the Sexual Offences Act 2003. The appellant was not required to register as a sex offender as a result of this caution.

8. The Appellant was suspended from his job as a teacher pending investigation of the matter by the school. On the 8th September 2006 the Appellant resigned prior to the conclusion of the investigation. 

9.The Department for Education and Skills (as it then was) wrote to the Appellant on 4th September 2006 informing him that the Department had been informed of the caution and was considering whether or not to take action under section 142 of the 2002 Act. The Appellant made representations in a letter of the 23rd September 2006 and attached a letter of reference from his headmaster. He also attended the Sexual Behaviour Unit for assessment, and a report was prepared by Professor Grubin.

10. The letter dated 15 June 2007 informing the Appellant of his listing gave the grounds as follows:
“In reaching a decision, the following information has been taken into account: all of the information available about the matter, including that provided by Education Bradford and West Yorkshire Police about your police caution (offence recited). Your representations have also been taken into account in particular; you admitted your behaviour, were ashamed and remorseful of your actions, and that you voluntarily disclosed the relationship to the headmaster after you realized your actions were wrong.
The report from Professor Don Grubin, consultant forensic psychiatrist and Shelagh Scott, Senior practitioner, at the Sexual Behaviour Unit has also been taken into consideration. This concludes that: your behaviour was largely a result of emotional immaturity rather than being sexually predatory in nature, the risk you present to children is low and they do not consider you should be prevented from working with children generally.
However the secretary of State has a duty to maintain confidence in the education service and to uphold the high standards of propriety expected of members of he profession. It is considered that your behaviour was highly inappropriate and breached the trust placed in you by your employers and parents of the school. Your behaviour has fallen far below the standards expected of members of the teaching profession and has brought the teaching profession into disrepute.”

The Law.
11. Section 142(1)(a) of the Education Act 2002 provides that the Secretary of State, in relation to England, may direct that a person may not carry out work to which section 142 applies. This is the process widely referred to as "placing a name on List 99". Section 142 applies to the provision of education at a school and elsewhere. 

12. Section 142(4) of the 2002 Act provides that a direction may be given in respect of a person only on the specified grounds. These are:
a.	grounds that the person is included in the list kept under section 1 of the Protection of Children Act 1999; 
b.	grounds that the person is unsuitable to work with children; 
c.	grounds relating to the person's misconduct; 
d.	grounds relating to the person's health; and 
e.	in the case of a person taking part in the management of an independent school, grounds relating to the person's professional incompetence. 
Thus, the Secretary of State must be satisfied that at least one of the specified grounds exists before he or she can exercise the statutory discretion provided for in section 142(1).
13. Section 144(1) (a) of the 2002 Act provides that a person in respect of whom a direction has been given under section 142 may appeal to the Tribunal against the decision to give the direction.
14. Regulation 12(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 also provides that an appeal to the Tribunal may be brought by a person in respect of whom a direction has been given under section 142 of the 2002 Act against such a direction. By regulation 12(2), no appeal may be brought on the ground of information or evidence referred to in regulation 9(2) unless that information or evidence has first been brought to the attention of the Secretary of State under regulation 9. Further regulation 12 (3) provides that ‘where a person has been convicted of any offence involving misconduct no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under these regulations. ‘
15. So long as the caution stands then the Tribunal accepts that it cannot challenge any fact upon which the caution was given. In any event in this case the Appellant did not seek to dispute the facts leading to the caution.
16. Regulation 9(1) of the 2003 Regulations provides that a direction given under section 142 of the 2002 Act ("the earlier direction") may be revoked or varied by a subsequent direction on either or both of the grounds referred to in regulation 9(2). The grounds referred to in regulation 9(2) are that the Secretary of State is in possession of information relevant to the decision to give the earlier direction which he or she did not have at the time the decision was made and that the Secretary of State is in possession of evidence of a material change of circumstances of the person concerned occurring since the earlier direction was given.
17. Regulation 13(1) of the 2003 Regulations provides that, where on an appeal under regulation 12 the Tribunal considers that the direction is not appropriate, it may order the Secretary of State to revoke or vary the direction.
18. Regulation 13(2) provides that the Tribunal shall not, in exercising its powers under regulation 13, consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or evidence of a material change of circumstances of the person concerned, occurring since the decision to give a direction was made.
19. Thus the Tribunal is, in this instance, confined to conducting a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed and, further, to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State.
The Evidence

20. The Tribunal had a full witness statement from Mr. Shields, all the papers submitted to the Respondent and the appeal papers and statements of the Appellant. We also had Professor Grubin’s report.

21. Mr. Shields confirmed his statement and the investigations by the Respondent. He reiterated the view of the Respondent as outlined in the decision letter of the 15th June 2007. He considered that while Professor Grubin’s report had concluded that there was a low risk to children it had raised issues about the Appellant’s insight into what he had done and possible effect on the young girl concerned. For example the Appellant had always said that the relationship was wrong but he did not seem able to explain why it was wrong.

22. In addition Mr. Shields said that it had not been a single incident but that the Appellant and the girl had meet on a number of occasions including once at her house when her parents were not there and had engaged in sexual activity. 

23. Mr. Shields confirmed that all the reports and references had been taken into account. He acknowledged that the Appellant had been very remorseful. However in such circumstances the public perception was that such conduct should result in the person being placed on the List 99, and he maintained the view that it was appropriate and in the interest of public confidence in the education system that the Appellant should remain on the List.

 24. The appellant confirmed his statement. He has a first class honours degree in German and did his teacher training in 2003/2004 after which he married his long term girl friend. He did not obtain full time employment so started with supply teaching. He had been teaching at Beckfoot school since 2005 and at the time of the incident had just accepted a permanent post at the school.

25. The Appellant accepted that he had been given a caution and the events that had led to that caution. He said in his evidence that during the last day of the trip he and H had spoken a lot, exchanging confidences, and that at that stage he should have realized that the relationship ‘had gone a bit too far’, in that it had crossed a professional boundary. He said that he had told Professor Grubin about this. After what had happened on the coach he knew that it was wrong and he said that when he met H at her home and in the park he was intending to stop the relationship. That was the reason he had gone to her house. When he had got there H had made it clear that she wanted sexual intercourse and while there had been some sexual activity he had not had intercourse with her and had left. He said he always found it hard to upset someone and he wanted to end the situation without hurting H’s feelings and making her feel that she had been used.

26. The Appellant said he did not recall any training in his teaching course on professional behaviour or child protection issues apart from some information about being aware of indications that children might be being abused or mistreated outside school. He said he knew that it was wrong to have a relationship with a pupil but he did not know what to do and how to end it: he had never ended a relationship before. When he tied to sort it out the situation seemed to get worse. H, the pupil involved, was asking him not to tell anyone and saying that she did not want to get him into trouble, however he had decided he had to take responsibility and inform the school. On the last day of term (a Friday) he had tried to see the headmaster but not been able to and, later that day, he spoke to his head of department and then to the headmaster whom he saw on the Monday morning.

27. The Respondent and the Tribunal saw the reference from his headmaster. Having summarised what had happened he said,” Whilst his actions were both stupid and unethical, he volunteered the information to me because he knew that it was wrong. He chose to resign because he knew his position at the school was untenable.
Up until this incident occurring, Mr Philliskirk had been an outstanding member of staff at the school. He is an excellent teacher; very well organized, very conscientious and very caring. His exam results were excellent. He also ran clubs, activities and supported school trips. He was also an excellent tutor.
I personally believe that the incident which led to his resignation stemmed from stupidity and extreme naivety. In my view he deserves all that has happened to him as a consequence of his actions. However with my knowledge of him over a longer period of time I do not believe that Mr Philliskirk offers a continued threat to the safety of young people.” 

28. Professor Grubin’s report had stated ‘his uncertainty regarding why such behaviour in a teacher is wrong, and the effects it can have on the student involved, are of concern, and were he to return to teaching, work would need to be done with him on this issue at the very least.’ The Appellant is at present completing a post graduate qualification in translation, and does not intend to return to teaching. However he was concerned that he might be asked to go to schools in the future, for example, to promote language learning. In respect of counseling, he said that he was waiting the outcome of this hearing and that he did not know what counseling was available though he had been to Relate for an initial meeting, in the past, and could get some advice from that organization.
 
29. With respect to his insight and empathy with the student he said that he would like to think that he was empathetic. He said he should have been the one in charge and realized that while students will confide in teachers it is not appropriate for teachers to confide in pupils. He said he was ‘deeply troubled’ by the effect the incident might have had on the student concerned. He also understood the public confidence issue but considered that he had been completely honest and co-operative with the investigation. He had been punished and would never do anything like it again. 

Conclusions

30. The tribunal having read a considerable amount of background documentation, witness statements and listened to the evidence and submissions by both parties finds as follows.

31. The central issues in this case were of the conduct of this teacher and public confidence. The facts of the misconduct were not in dispute and we heard the Appellant’s account of them as recorded above. In respect of the listing we were addressed on the issue of public confidence in teachers and the education system and we were referred to a number of decisions by the Tribunal.

32. We were directed to the case of CN v Secretary of State [2004] 398.PC/399PVA where the tribunal held ‘We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context.’

33.  In the case of FH v Secretary of sate for education and Skills [2005] 0552 PT which was a misconduct case, the Tribunal said ‘It follows that, when considering whether a direction is or is not appropriate, the Tribunal should not proceed on the basis that the restriction was imposed as a penalty for past misconduct but should decide whether the restriction is an appropriate measure to ensure, so far as possible, that children will be properly protected and that reasonable parents and other interested parties will not have their confidence in the education system diminished in the future’. In that case  there was reference to the observation of the Tribunal in Moseley v Secretary of State [2002] 1 PC, ‘Teachers are perceived as role models for children and trust and honesty are core values which underpin the status of teaching as a profession’. 

34. Mr. Shield’s evidence was a coherent expression of the Respondent’s view towards misconduct such as this. He helpfully explained the procedure and the information taken into account. Based on the evidence before the Respondent the decision to list the Appellant was not on the grounds of unsuitability but on the finding of misconduct and the issue of public confidence.

35. The Tribunal had the opportunity to hear from the Appellant and to observe his demeanour. The Appellant said to the tribunal ‘I don’t deny what I did was wrong, terrible and I wouldn’t do it again. I am not a danger to children; there is a zero chance of it happening again. I can see why a case of misconduct was given against me but I am not a danger to children.’

36. The Appellant was a truthful witness with no guile or hidden agenda. He did not seek to minimize his behaviour or the potential effect it may have had on the student. We accept that as a, possibly emotionally immature, young teacher he had known that the relationship was wrong from the outset. We further accept the Appellant’s evidence that at the subsequent two meetings after the incident on the bus he went intending to end the relationship. He had found this difficult because of his concern not to hurt H’s feelings. He was certainly remorseful.
 
37. In addition to the appellant’s own attitude there is the strong reference from his headmaster quoted above and the clear conclusion of Professor Grubin’s report, which we had seen in full, which stated ‘ we do not believe there is any reason why he should not continue to work with children generally’.

38. Whilst we appreciate the issue of public confidence that has been put strongly to us,
 on the evidence we have read and heard and the conclusions recorded above, we do not feel that with the knowledge of the circumstances of this particular case public confidence would be breached. We are therefore not satisfied that it is appropriate or proportionate, that the Appellant should be placed on the List 99 under section 142 of the 2002 Act.

 39. Our decision is unanimous. 

Accordingly we allow the appeal.

Ms Maureen Roberts		Chairman
Ms Pat McLoughlin
Mr James Black

20th May 2008