DAS v Secretary of State for Education and Skills [2006] EWCST 796(PT) (12 February 2008)

DAS
-v-
Secretary of State for Education and Skills

[2006] 796.PT

-Before-

Mrs. Carolyn Singleton
(Chairman)
Ms. Caroline Joffe
Mr. Ron Radley

Heard at the Magistrates Court, Bolton on 11th and 12th February 2008

The Appeal

1. DAS, (the Appellant), appeals against a direction by the Secretary of State under section 142 Education Act 2002 that his name be included on the list of people prohibited from working with children because of his unsuitability. His appeal lies under s.144(1)(a) of that Act.

Representation

2. The Appellant represented himself and the Respondent was represented by Mr. Sachdeva of counsel.

Burden of Proof

3. The burden of proof lies with the Respondent; the standard of proof being on the balance of probabilities.

Preliminary Issues

4. At a directions hearing on 18th January 2008, a Restricted Reporting Order under Regulation 18(1) was made. That Order was extended at the hearing of the appeal.

5. On hearing the application of the Respondent that the proposal by the Appellant to call Mr. Francis McInerny and Mr. Patel as witnesses was opposed under Regulation 13(2) of the Education (Prohibition from teaching or working with children) Regulations 2003, the Tribunal decided that those witnesses should be allowed to give their evidence which was more in the way of evidence as to character rather than as to the central issues in this case. In the event, only Mr. McInerny gave evidence.

Facts of the Case

6. On 11th March 2002 twin sons, namely Riyadh and Ridhwan, were born to the Appellant and his wife. By mid April 2002 Riyadh began to show symptoms which were subsequently recognised as evidence of fits. Initially, they presented as tiny tremors in the ends of his fingers and toes. They normally occurred at feeding time and Riyadh did not show any apparent distress. Those symptoms continued to occur on occasion. On 2nd May 2002 the tremors became more pronounced, affecting, amongst other places, Riyadh’s mouth and tongue. He was admitted to hospital. Both twins were found to have sustained brain injuries, with Riyadh having sustained serious brain injury. The cause of the injuries was found to be that the Appellant had played rough physical games with the twins, virtually from birth. These games had included throwing the babies into the air and then catching them as they fell, swinging the babies around in his arms, holding the babies by their legs and swinging them upside down between his own legs and dropping them from above two feet onto pillows on the bed. On one occasion Riyadh rolled off the pillows and struck his head on the headboard.

7. On 30th June 2003 the Appellant pleaded guilty to three offences in relation to the twins, two being for cruelty and one being for neglect.

8. Care proceedings were instituted relating to the twin boys and the Appellant’s daughter, ultimately leading to adoption orders being made.

9. By letter dated 6/07/06 a direction was made under s.142 Education Act 2002 barring the Appellant from work to which that section applies on the grounds that the Appellant is unsuitable to work with children and young people. That letter states that the Secretary of State considered:
(a) the Appellant’s convictions for child cruelty and neglect
(b) the severity of the injuries sustained by the twins
© the findings of Mrs. Justice Black in the care proceedings
(d)that  the Appellant did not accept help and advice offered when he was observed playing inappropriately rough games with the twins
(e)the opinions of Dr. Alwin, Dr. Nathan and Dr. Waddy
(f) the Appellant’s argument that the school environment is different to the domestic setting and that he does not believe himself to be a risk to pupils
(g) the numerous testimonials provided by the Appellant.

10. On 5/10/06 the Appellant appealed his inclusion on the list under S142 to this Tribunal.

The Law

11. Appeal against the decision of the Secretary of State lies under s. 144 of the 2002 Act. If, on appeal, the Tribunal considers that the direction is not appropriate, it may order the Respondent to revoke or vary the direction.

Evidence for the Respondent

12. Evidence was heard from Ged Callaghan. He is the Secretariat Manager in the Children’s Safeguarding Operations Unit at the Department for Children, Schools and Families, Darlington. His statement is at document 326 of the bundle. In that statement he set out the background to the case and the reasons for the barring direction. He states that, following representations made by the Appellant to the Secretary of State, he agreed to examination by a medical practitioner appointed by the Secretary of State. That examination was undertaken by Dr. Nathan. His report is at document 74 of the papers. That report was taken into account by Dr. Waddy, the Department’s senior medical advisor. Following this, the Appellant was interviewed by Dr. Waddy and Julian Dickinson who had been the caseworker in this case but who has subsequently moved post. Dr. Waddy then filed a second report indicating that the Appellant should be barred from working with children. All this was considered when making the decision to bar the Appellant, including the judgment of Mrs. Justice Black in the care proceedings. Reference was also made to the Appellant’s conviction for possessing controlled drugs with intent to supply in 1985.

13. His oral evidence took the Tribunal through the facts of the case once more. He told the Tribunal that the Secretary of State has no investigative role and, therefore, the Respondent is reliant on information provided to it. The judgment of Mrs. Justice Black was significant in that it provided the Respondent with great assistance. The High Court Judge rejected the Appellant’s claim that the games he had played had been benign and that he did not know or was not reckless as to the harm they might cause. She had found him to be neither frank nor genuine in his evidence. Mr. Callaghan pointed out that the opinion of Dr. Waddy had changed from the Appellant being considered “a low risk” to “should be barred” following an interview with him. He referred to the record of a telephone conversation with Janie Berry of Blackburn Borough Council which appears at document 96 of the bundle. The comments of Ms. Berry are extremely forthright and it is clear from the papers in the bundle that the Appellant is concerned as to the influence Ms. Berry may have had on any decision made by the Respondent. Mr. Callaghan made it clear that her comments had had no bearing on the decision. He accepted that her comments resulted from the adversarial proceedings in which the Appellant had been involved and that her comments revealed her own prejudices. No weight had been given to her comments.

14. He stated that the decision to bar the Appellant was appropriate in all the circumstances in order to protect children and to ensure the maintenance of public confidence. However, those points are not evenly balanced. In this case the overriding concern was the protection of children. The totality of the evidence proves to the Respondent that there is a risk element as a result of the Appellant’s conduct. Whilst public confidence is an important factor, the decision had been made on the basis of the Appellant’s serious convictions and the fact that the public would not expect such a person to teach children.

Evidence for the Appellant

15. Mr. Francis McInerney gave evidence for the Appellant. He is a friend of the Appellant whom he has known for 10 years. He agreed that he was aware of the various court proceedings in which the Appellant had been involved and that he had pleaded guilty to the offences which are the subject of record. He told the Tribunal that he had no concerns about the Appellant’s ability as a father and that the Appellant had been overjoyed at the birth of twin sons. He had visited the Appellant during the first few weeks of the twins’ lives and had witnessed the Appellant playing with them inappropriately. He observed the Appellant holding one of the babies by his legs and swinging him between his own legs, saying “Shall I show you a trick?” and had been shocked by it. The Appellant had acted in this way quite openly and Mr. McInerney had concluded that the Appellant was not aware that what he was doing was dangerous. He did not, however, make any comment to the Appellant. He thought he was showing off. As to the Appellant’s character he told the Tribunal that he trusted him and that no one within the local community had expressed any concern to him about the Appellant since the court proceedings. Mr. McInerney is the father of 9 children and has no fear the Appellant would ever harm them. He would be happy for the Appellant to teach his children. He pointed out that the Appellant has been devastated by the consequences of his actions and is not in his right mind because of what has happened.

16. The Appellant then gave his evidence to the Tribunal and carefully took the panel members through what had happened. Firstly, he referred to his drug conviction from 1986. He embraced Islam over 11 years ago. He is a devout Muslim and, in accordance with the teachings of his faith, he has not touched any illicit substance since then. As to the incidents with his twin sons, the Appellant’s evidence was much as set out in his various responses in the bundle. When his sons were born, not long after the attacks on the Twin Towers in New York in September 2001, he was anxious as to the kind of world they would have to face, particularly as “white Muslims”. He took the view that they would need to be tough and, therefore, set about a series of games which, he hoped, would have the desired effect; games which he had not played with his daughter because she was a girl. Medical evidence has shown that the damage to the twin’s brain was caused by the game of dropping from 2 feet above the bed onto the pillows. He had been unaware that the brain is loose inside the skull and the damage was the result of the baby’s head impacting on a pillow and bouncing up again and, on one occasion, hitting his head on the headboard of the bed. When the twin began to show symptoms, he did not connect that with the games he had been playing. The symptoms had been minimal and he had not realized that they were evidence of fits. He had been told that his games were inappropriate by a number of people, including his wife, his parents and friends. They told him not to do it but did not explain why.

17. He told the Tribunal that he was extremely ignorant of babies; his only experience being with his daughter. He had never played these games with her because she was a girl. He had had plenty of contact with older children without there being any problem whatsoever. In all his years as a teacher there had never been a single instance of a problem with a student.

18. The Appellant explained to the Tribunal his reasons for not seeking medical help at an earlier stage. Firstly, as stated above, he had had no idea that what he was witnessing was evidence of a fit. Secondly, he had been given incorrect advice by a health visitor on a previous occasion and, therefore, his confidence in them was affected. Also there were times when Riyadh showed no symptoms at all and the Appellant thought that the problem had resolved itself. He had not appreciated the seriousness of the situation. The Health visitor had not explained the gravity of the situation to him. Had she done so, he would have taken the baby to the doctor’s immediately.

19. He was at pains to point out that he has always had a profound love and respect for children and he treasures time spent with them. He simply did not appreciate the difference between playing with an older child and a baby. He referred to the many testimonials in the bundle which support him.

20. The Appellant said that counselling with Ms. Jolley, whose notes are at documents 68 - 71 of the papers had made him realise that, subliminally, he had been affected by his own relationship with his father, who had displayed an overwhelming fear of any son of his being homosexual and had showed the Appellant no affection. He had not fully realised this at the care proceedings in the High Court and had not been able to articulate it. He had found the atmosphere in court very hostile and he had been depressed. In contrast to his own father, he had wanted to bond with his sons and, when playing the games described with them, he had believed they were enjoying them. He pointed out that he had only pleaded guilty to the offences of which he stands convicted because it had been part of a plea bargain. In return for guilty pleas, charges against the Appellant’s wife had been dropped.

21. Finally, the Appellant has been offered employment as a teacher. He would like to return to teaching and would accept that some sort of supervision would be required. He believes this is unnecessary because he presents no risk but accepts that he has something to prove. He asked the Tribunal, therefore, to vary the terms of the direction.

Tribunal’s decision

22. Regulation 12 (3) Education(Prohibition from Teaching or Working with Children) Regulations 2003 states ”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.” Quite simply, this means that the Tribunal cannot go behind a conviction. In this case, the Appellant pleaded guilty to two offences of child cruelty and one of neglect. Why he did that is not something the Tribunal is allowed by law to consider. The fact is that he has been convicted of those offences and the facts must be taken as reported.

23. Regulation 13(2) states, inter alia, “The Tribunal shall not, in exercising its powers under this regulation, consider
(a) any information relevant to the decision to give a direction…..which the Secretary of State did not have at the time the direction was made; or
(b) any evidence of a material change of circumstances of the person concerned occurring since the decision to give a direction”
Effectively, therefore, the Tribunal is confined to conducting a review of the decision made by the Secretary of State. In other words it is required to decide whether the Secretary of State had sufficient evidence upon which to decide that a specified ground existed and whether or not it is an appropriate or proportionate response.

24. The Tribunal carefully considered all the evidence in the bundle and the oral evidence given at the hearing. The Appellant impressed as an intelligent, educated and articulate man who presented his case with sincerity and passion. Despite representing himself, his submission to the Tribunal was extremely well structured and clear. The Tribunal would wish to commend him for that. He acknowledged what he did and described the games he played with his newborn babies in detail, accepting all along that he should not have behaved in the way that he did but saying that he did so in ignorance of the possible consequences. His evidence, at times, was tearful and it was clear to the Tribunal that the Appellant was a man whose life has been devastated by his actions and who is full of sorrow and regret. However, it is the fact that the Appellant is evidently intelligent and articulate that makes it difficult for the Tribunal to understand why he behaved in the way that he did. He told the Tribunal that he had been unaware that the brain is loose inside the skull and that, if he had known this, he would not have played in such an inappropriate way. However, even if the physiology of the brain were different and it was not loose, playing with babies who are only a few weeks old in the way described by the Appellant would still be wholly inappropriate and unacceptable. The Tribunal does not believe, on balance, that the Appellant deliberately set out to hurt the babies but his actions displayed an inability to assess risk which is of considerable concern. Not only did the Appellant fail to assess the possible impact of what he did on his newborn sons, he also ignored advice when it was given to him by his wife, parents and friends. The Tribunal considered that this demonstrated a total lack of insight into his behaviour at that time. The Appellant should have known that he should not handle babies in the way that he did, either instinctively or through the fact that he was told not to do it. It is these facts that caused the Tribunal the most concern, not the fact that the Appellant had a previous conviction for drug offences. Insofar as that matter is concerned the Tribunal considered that it was over 20 years old and the Appellant had subsequently become a devout Muslim and adheres to the teachings of Islam.

25. The Tribunal accepted that the Appellant is an excellent teacher, held in high regard by pupils and colleagues, past and present. The many references in the bundle are testament to that. However, the evidence before the Secretary of State when the decision was made, inevitably, will have led to the decision to bar. It has less to do with dealing with babies and more to do with judgement, responsibility and insight.  On the evidence available to the Secretary of State when the direction was made, a conclusion that the Appellant had behaved recklessly was justified. The Appellant demonstrated a lack of judgement and recklessness in the face of advice to the contrary and, on balance, the Tribunal is satisfied that an absolute bar is proportionate. This is not in the way of a punishment for what the Appellant did. He has already paid a very high price for that. However the Tribunal has a duty to ensure that children are properly protected and to maintain public confidence. The Tribunal is mindful of the comments in CN v. Secretary of State [2004] 398.PC, [2004] 399.PVA -”When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context.”

26. Accordingly, the appeal is dismissed.

27. This is a unanimous decision.

Mrs Carolyn Singleton
Ms. Caroline Joffe
Mr. Ron Radley