RD
-v-
Secretary of State
[2009] 1523.PT

-Before-

Mr. Simon Oliver
(Deputy Principal Judge)

DECISION

Heard on 4th August and 10th September 2009 at The Care Standards Tribunal, 18 Pocock Street, London SE1 0BW

Representation

The Appellant represented himself
Mr V Sachdeva of counsel represented the Respondent

Appeal

1.	RD appealed to the Tribunal on 14th May 2009 against the decision of the Secretary of State (on 5th May 2009) to make a direction against him under section 142 (1) of the Education Act 2002.  The case was listed, at RD’s request, for an oral case management hearing on 4th August 2009.  I made a restricted reporting order on that day.

2.	By a letter dated 21st July 2009, the Secretary of State applied to strike out the appeal under Rule 8(4)(1) of the Tribunal’s rules on the grounds that there is no reasonable prospect of the Applicant’s case succeeding.

3.	At the hearing on 4th August 2009 it became clear that RD was, in effect, asking the tribunal to bar the Respondent from defending this appeal.

4.	For reasons that will become clear, I adjourned the hearing on 4th August 2009 until 10th September 2009.

Background
5.	My decision in this case must be seen in the context of the background to this case. The background has been taken from the Court of Appeal decision which is reported at [2008] EWCA Civ 1372; [2009] 1 FLR 881.

6.	On 15th June 2005, a young Indian man called J, then aged 16, arrived in the UK.  He was met at the airport by RD, who then took him to RD’s home.  During that journey a bus driver became suspicious and reported his concerns; as a result the local authority became involved and made enquiries.  On 28th July 2005, the local authority obtained an emergency protection order in respect of J and he was removed from RD’s home to which, in the event, he never returned.   The local authority initiated both care proceedings under Part IV of the Children Act 1989 in respect of J and sought injunctive relief under the inherent jurisdiction of the High Court so as to prevent contact between RD and J, since RD was not in fact a party to the care proceedings.   For his part RD, at an early hearing in the county court, gave oral notice of his intention to seek residence or contact orders in respect of J pursuant to Part II of the Children Act. Apparently no written application for these orders was ever made or required of him.

7.	RD was not a stranger to J, for between January and December 2004 RD had been employed as a teacher at a school in India where J was a student and where J’s father was also employed.   RD had befriended the family who entertained, for their children, educational aspirations beyond their financial means.  RD had offered to have J in this country to further his education and the family had agreed.   Thus it was that J came to this country in June 2005.

8.	The enquiries that were made by the local authority in relation to RD revealed a history that the Court of Appeal said alarmed the local authority. The local authority ascertained that RD had had a number of teaching jobs, some quite short lived.   Some had ended in dismissal, either because RD had lied about his qualifications and/or it had been concluded that his behaviour towards, or conversations with, students was unacceptable.  Whilst there was no specific allegation of sexual abuse, it was the view of the local authority that a pattern of behaviour emerged from the history which could be described as “grooming”.  Thus it was that they had urgent concerns about the safety and welfare of J and took the action they did.

9.	The care case progressed in the county court and, on 16th September 2005, J was given permission to return to India (where he remains).  On that basis, the local authority applied to withdraw the care proceedings.  That application came before H.H. Judge Altman on 20th October, 2005.

10.	On 20th October, His Honour Judge Altman did two things.  First he heard evidence and made and recorded a number of findings of fact before making no order on the local authority’s application for a care order; the injunction proceedings were also discontinued.  Secondly, the Judge made orders authorising disclosure of those findings to named bodies, which broadly coincided with those in respect of whom the 15th September order had been made.  Whilst RD could have been under no illusion but that the care proceedings would be continued in his absence, it appears that he had no knowledge of the disclosure application.  Indeed, it is possible that the application for disclosure was only decided upon on 20th October.  The Court of Appeal decision states that the Judge gave a brief judgment which does not set out the detailed evidence nor does it consider in any depth the legal principles involved in disclosure. I have not seen a copy of that judgment but I have seen a copy of the list of those to whom disclosure was to be made.

11.	On 13th February 2006, RD applied to set aside the order of 20th October 2005. Having refused an application (by RD) to recuse himself, the Judge on 13th July 2006 decided that he had jurisdiction to review his earlier order and decided so to do.  The application to review was unsuccessfully opposed by the local authority.  Over two days in November 2006, His Honour Judge Altman effectively reheard the applications originally determined the previous October.  On this occasion RD, although acting in person, participated fully and gave evidence.  The Judge then reserved his judgment.

12.	Some disclosure had taken place following October 2005, including to the DCSF.  In May 2006, the local authority alerted the recipients of the disclosure to the fact of RD’s application.  According to the Court of Appeal, the matters arising out of that were not properly resolved. It seems, however, that the Court of Appeal decided it should deal with the matter irrespective of the outcome of RD’s appeal before it. This is because amongst the orders made by the judge on 10th January 2007, consequential to his judgment, was one discharging the disclosure orders made in October 2005.  The Court of Appeal concluded that since HHJ Altman had discharged his order of October 2005, there was no real profit to be had by a detailed examination of either the judgment or order then made. 

13.	It is not necessary for the purpose of my decision to go into the details of the judgment of 20th October 2005 and 10th January 2007 other than to note that the order putting into effect the judgment of 10th January 2007 was never finally drawn up and approved by the judge.   A draft was created in February 2008 and an order (of sorts) was made on 18th March 2008.   RD appealed the order/judgment and the matter was heard by the Court of Appeal on 10th December 2008.  It has been necessary in the course of the hearings on 4th August and 10th September 2009 to consider the Court of Appeal decision.

14.	RD’s case in the Court of Appeal was firstly, that the judge should never have proceeded with a finding of fact hearing in October 2005, nor should he have done so in November 2006 when his response to RD’s application should simply have been to discharge the October 2005 order.  What is essentially said is this:  by 16th September 2005 it was known that RD had gone abroad and was not pursuing any of his applications and it was then that J was given permission to return to India; accordingly it is said that there was no further purpose to be served either by the care or injunction proceedings.  Thus there was no live issue before the court and the court should not have proceeded with the matter at all.

15.	The Court of Appeal firmly rejected that proposition, stating in their judgment that parties have no right in family proceedings to discontinue at will and always require the leave of the court to withdraw. The Court relied upon the Family Proceedings Rule 1991 r 4.5(1).   The Court of Appeal went on to say that, accordingly, proceedings remain active until the court determines otherwise and so it is, therefore, open to a court to find facts even where there is no live issue.  Sometimes it is necessary to do just that, said the Court of Appeal, either because a further application may in due course be made in respect of the child or because a party to those proceedings may, in due course, become involved in the life of another child.  That may be a long time later when in practice it may be too late to investigate the original circumstances of, say, alleged injury, abuse or other misconduct.  The requirements of FPR 4.5(1) have a sound basis in practical experience.

16.	RD’s second ground of appeal was that the circuit judge should not have authorised disclosure of the findings to anyone, let alone the twenty organisations listed in his October 2005 order.  The number of organisations to whom disclosure was authorised was varied in the January 2007 judgment to three organisations of which the DCSF was one.  The Court of Appeal was satisfied, not only that the circuit judge was entitled to order disclosure to the Secretary of State, but was right to do so.

17.	The fact that the Court of Appeal confirmed that disclosure should have been made to the Secretary of State is, of course, relevant to this Tribunal. The Secretary of State was one of those to whom disclosure was authorised in HH Judge Altman’s order of 20th October 2005.

18.	The Court of Appeal did not come to the same conclusion with regard to the remaining two organisations.   What is not clear from the judgement, but can be seen in the formal order of the Court of Appeal, is that directions were given to remit the case to His Honour Judge Altman to determine the present form of the Disclosure Schedule and for that finally approved schedule to be sent to the Secretary of State.

Conclusion

19.	Given that background, I now turn to the applications before me. At the hearing on 4th August 2009 I had the Court of Appeal’s judgment and order of 10th December 2008. What I did not have was the final approved Disclosure Schedule from His Honour Judge Altman because, as at 4th August 2009, it had not been finalised.

20.	The letter of 5th May 2009 which informed RD that he had been barred under section 142 Education Act 2002 sets out the information taken into account by the Secretary of State in reaching the decision. In reading the letter it is clear that the information relied upon by the Secretary of State was drawn form the findings made by His Honour Judge Altman on 20th October 2005.

21.	The problem for this tribunal is that those findings were, in effect, quashed by the Court of Appeal insofar as they had not already been set aside by the judgment of HHJ Altman of 10th January 2007. That judgment has not, of course, ever been put into effect by an order of the court. By discharging the Order of 20th October 2005 the Disclosure Schedule attached to it was thereby rescinded and without a sealed order in January 2007 there was nothing in its place. Although the Court of Appeal’s order provided for HHJ Altman to determine the form and content of the Disclosure Schedule, this had not been done by 4th August 2009 and was, therefore, not done by 5th May 2009 when the Secretary of State sent the letter to RD.

22.	On 11th August 2009 His Honour Judge Altman gave a short written judgment in which he determined matters in dispute thereby finalising the Disclosure Schedule and made an order putting it into effect. 

23.	The consequence of this is that it was only from 11th August 2009 that the Secretary of State had a Schedule of matters to consider. Nothing could be relied upon before that date. It may be possible that the 2009 Schedule is similar in many particulars to the 2005 Schedule but that is not the point. I have not cross-referred the two Schedules so I cannot comment. The Secretary of State cannot rely on information dated 20th October 2005 to come to a conclusion to make a Direction under section 142 of the Education Act 2002 given that it was not a document in a final form until 11th August 2009 and there was no order disclosing it to the Secretary of State until that day.

24.	Having come to the conclusion that the Secretary of State could not rely on the information sent in 2005 to make the Direction in May 2009, the question I now have to address is what should be done? Mr Sachdeva on behalf of the Secretary of State urges me to stay the proceedings to enable the Secretary of State to undertake a review pursuant to paragraph 9 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003. 

25.	RD was barred on the grounds of unsuitability. Where a direction is given on grounds of unsuitability, section 35 of the Criminal Justice and Courts Service Act 2000 (“the 2000 Act”) becomes relevant. This section provides that it is an offence for a person “disqualified from working with children” to work in a “regulated position”. Section 35 (4) (b) of the 2000 Act defines a “disqualified person” as a person “subject to a direction under section 142 of the Education Act 2002 (prohibition from teaching etc), given on the grounds that he is unsuitable to work with children”. A regulated position is defined under section 36 of the 2000 Act in terms which include under section 36 (1) (c) “a position whose normal duties include caring for, training, supervising or being in sole charge of children.” 

26.	Regulation 9 provides for a review by the Secretary of State. Regulation 9 (1) states that a direction made under section 142 of the 2002 Act may be revoked or varied by a subsequent direction on the grounds that either the Secretary of State is in possession of information or evidence which he did not have at the time that decision was made or 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. There is, however, a caveat to that. Regulation 9(1)(b) states that there cannot be a revocation or variation of the earlier direction where the first direction was given on the grounds that a person is unsuitable to work with children if the person claims he is no longer unsuitable to work with children. In this case, although RD was the subject of a direction on the grounds that he was unsuitable to work with children, he is not stating in his appeal that he is no longer unsuitable to work with children. It seems to me, therefore, that it is possible that there can be a review under Regulation 9(1)(b).

27.	The difficulty is that in agreeing to a review it presupposes that the Direction was validly made and that RD should be subject to it now. Whilst there can be some merit in certain cases in simply permitting a review, the barring for misconduct carries the very serious consequence I have set out in Paragraph 25 above. 

28.	I have come to the conclusion that if the barring order should not have been made in May 2009 because it was made on the basis of a document that was not supposed to have been disclosed given the course matters took since 20th October 2005, it is not right or lawful for RD to remain on the list whilst the Secretary of State carries out a review. If it was procedurally wrong to place RD on the list in 2009 there can be no lawful basis for him to remain on it now.

29.	I am fully aware that the Secretary of State’s concerns have not been diminished by the 2009 Disclosure Schedule and that some of the findings are extremely serious. That cannot influence my decision. It is for the Secretary of State to review the 2009 Disclosure Schedule and take whatever steps that are deemed to be appropriate in whatever timescale it can be done.

30.	In reaching this decision I have not considered the merits of the case or the details of the Disclosure Schedule. If the Secretary of State, on considering the 2009 Disclosure Schedule comes to the conclusion that RD should be barred he will have another right of appeal to this tribunal at that time. I am aware that RD said at the hearings before me that some of the matters set out in the 2009 Schedule have been considered by the Secretary of State in the past and it had been decided to take no action. I have not considered that argument in reaching my decision. Whether or not the matters RD refers to can or should be relied upon by the Secretary of State in reaching a decision in 2009 is an argument to be determined on another occasion.

31.	In the circumstances, I have come to the conclusion that because of procedural flaws RD should not have been barred on 5th May 2009. Given that RD is currently on a list that he should not be on because of those procedural irregularities, I need to order his removal from the list. In doing so I emphasise that this is a conclusion reached on a procedural basis and not after consideration of any of the merits.

Order

Pursuant to Regulation 13(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, I consider that the Direction is not appropriate and hereby order the Secretary of State to revoke the direction in respect of RD.

Simon Oliver
Deputy Principal Judge, Care Standards
2nd November 2009