[2010] UKFTT 44 (HESC)

[2009] 1524.PC
[2009] 1525.PVA

JJ 
Appellant

-v-

SECRETARY OF STATE

Respondent

-Before-

Judge John Aitken Deputy President 
Judge Melanie Lewis
Miss Margaret Diamond (Specialist Member)

Introduction

1.	The Appellant, JJ appeals from the decision taken by the Secretary of State on 18 February 2010 to confirm his name on both the PoCA List as unsuitable to work with children and the PoVA as unsuitable to work with vulnerable adults. The referral was made by Social Services who had de-registered the Appellant and his wife as foster parents and were concerned that three sets of allegations had now been made against the Appellant.  

2.	This case arises from allegations made by JJ’s adopted daughter AB and his foster daughter AA. The Appellant was indicted on 5 counts as follows:-

(i)	Indecent assault between 30 May 1996 and 31 May 1997 on AB
(ii)	Indecent assault between 5 June 2002 and 5 June 2003 on AA
(iii)	Indecent assault between 5 June 2002 and 1 May 2003 on AA
(iv)	Sexual assault between 1 May 2004 and 4 June 2004 on AA
(v)	Sexual assault between 5 June 2004 and 5 June 2005 on AA

3.	On 18 July 2007 the jury after retiring for an hour found the Appellant not guilty on all counts.  AA gave evidence but AB did not attend and the trial judge declined to issue a witness summons. The jury also heard evidence from JJ, his wife Mrs. JJ and their son LJ.

4.	We heard the evidence in the case over three days on 18, 19 and 21 January 2010. The Appellant was represented by Miss Smith of Counsel and the Secretary of State was represented by Miss Patry-Hoskins of Counsel. 

Jurisdiction

5.	The representatives agreed that the law to be followed was as set out in the recent case of AJ (2) –v- Secretary of State [2009] 1527 PCA [2009] 1528 PVA.  The Tribunal clarified that the relevant provisions of the Protection of Children Act 1999 have now been repealed as from 12 October 2009 by the Safeguarding Vulnerable Groups Act 2006 S.63 (1) and Schedule 10. However, by virtue of the transitional provisions set out by the Safeguarding Vulnerable Adults Groups Act, the Order states that where a person has not been included in the Children’s Barred List by that date (or a person has been included in that list under the provisions of the Transitional Provisions Order 2008 [SI 2008 No 473] but no final decision has been taken on their inclusion), then the old barring conditions will continue to apply instead of Section 3 of the Safeguarding Vulnerable Groups Act 2006, up until one of the events as set out in Article 5 (5),)  6 (5) or 7 (4) occurs. As none of the events set out in those articles have occurred it was agreed that despite their repeal the provisions of the Act continue to have effect in relation to the Appellant, who immediately before 12 October 2009 was both included in the list and had not been dealt with under the newly-established Children’s Barred List. 

Burden and Standard of Proof

6.	The burden of proof rests with the Respondent to satisfy us that the Appellant was guilty of misconduct which harmed a child or placed a child at risk of harm, and that the Appellant is unsuitable to work with children and vulnerable adults. The standard of proof is the civil standard of the balance of probabilities: Re: B (Children) [2008] UKHL. There is only one civil standard of proof and that is proof that the facts in issue more probably occurred than not. If the Tribunal found that the Appellant was guilty of the misconduct then the burden of proof switches and it is for the Appellant to establish that he is suitable to work with children:  Barbara Chapman Smith –v- Secretary of State for Health [2007] 1174 PVA [2007] 1175 PCA. 

7.	Being on the PoVA and PoCA lists has very serious consequences for an individual whose name is confirmed on the lists. Baroness Hale said in R (Wright) and Others -v- Secretary of State for Health [2009] UKHL 3 at paragraph 36:

‘The scope of the ban is very wide, bearing in mind that the worker is placed on both the PoVA and PoCA lists. The ban is also likely to have an effect in practice going beyond its effect in law. Even though the lists are not made public, the fact is likely to get about and the stigma will be considerable.’

The Law to be applied

8.	Section 4 (3) of the Protection of Children Act 1999 provides:

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 duties) which harmed a child or placed a child at risk of harm; 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) direct his removal, from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.

9.	Section 86 (3) of the Care Standards Act 2006 has similar wording in relation to the Vulnerable Adults List. 

10.	Misconduct is not defined in the 1999 Act nor is the term qualified as ‘serious’ or ‘gross’.

Particulars of the Misconduct

11.	The Secretary of State was not able to obtain any evidence from AB or AA’s mother who had made a complaint about the Appellant appearing in a state of undress. This is not a case involving collaboration of evidence and the Respondent did not rely on the allegations made in 1997 by AB and repeated in a statement to the police in 2006 to support the allegations by AA. The issue was essentially the word of AA against that of the Appellant and other witnesses and whether AB as alleged by the Appellant, had influenced her into making the making false allegations. The Respondent relied on four factual allegations:-

(i)	That a few days after AA’s 12th birthday (so June 2002) the Appellant, during a ‘fun fight’ chased her up the stairs into her bedroom, pushed her onto the bed, put his hand down her trousers and touched her inappropriately on the vagina;

(ii)	That a few weeks thereafter ( so in either June or July 2002) the Appellant, during a ‘fun fight’ chased AA up the stairs to the bathroom and  AA having been unable to secure the lock on the door, put his hand down her trousers and up her top, touching her inappropriately;

(iii)	That some months thereafter so between June 2002 and July 2003) the Appellant came into AA’s bedroom and asked her whether she  had ever been ‘fingered’;

(iv)	That when AA was around 14 years of age (so between June 2004 and December 2004) the Appellant whilst on a family holiday and whilst playing a game of ‘hide and seek’ in the sand hills,  put his hand down AA’s trousers and attempted to touch her inappropriately. This was an allegation that did not form part of the indictment at the Crown Court Trial. 

Preliminary Matters

12.	On 21 October 2009 His Honour Judge David Pearl, Principal Judge, Care Standards made a Restricted Reporting Order under Rule 14 (1) (b) prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any person in the case, such order to continue in force until the conclusion of the hearing and the Tribunal to consider its continuation at the hearing itself. Further, there was an order under Rule 26 (3) that the hearing be held in private.  There was no issue that the Order should continue.  

13.	AA attended the hearing and gave evidence behind a screen. She chose to attend on the second day of the hearing when again it was arranged for her to sit behind a screen. 

The Background

14.	The Appellant is a man of good character. He has been married to his wife for over thirty years and has a steady record of work.  In 1981, believing that they were unable to have children they applied and were approved as foster carers. In 1982, AB then aged 3 and SJ her brother aged 8 months were placed with them.  BB a boy was also fostered by the Appellant and his wife and stayed with them until he was 18.  He and AA were not living in the family at the same time but he is relevant to the history, because the Appellant says that a sexual approach was made to him by a stranger whilst in  sand hills near the family holiday caravan.  After that he placed restrictions on children playing there, which he relies on to explain why the fourth allegation relied on could not have happened. 

15.	The Appellant and his wife were able to have their own children. Their son LJ was born in 1986 and their second son KJ was born in 1990 but AB and SJ remained with them. Shortly after their own second son was born, they were adopted by them. 

16.	AA was placed with the family in 1996 when she was aged six and remained with them until she made the complaint in 2006. Whilst she had contact, initially fortnightly and then monthly with her own mother, there does not appear to have been any question of her ever returning to live with her mother who was a vulnerable person and had her own social worker and carer. The age at which AA joined the family meant that she only overlapped with AB for a few months and SJ for a few years as they both left home aged sixteen or seventeen. 

17.	AB was described as a model child until she was about 16 when her behaviour changed and she became a cause of great concern to her parents.   In 1997 AB made an allegation against the Appellant. She said that he had said “If you weren’t my step-daughter I would shag the arse off you”.  The Appellant’s version of this was that he had been travelling in a car with AB his son LJ and a niece and had shouted at her   “If you weren’t my step-daughter I would fucking kill you for all the trouble you have caused me and your mother”.    He also denied that he had tried to kiss her and put his tongue in her mouth. 

18.	This allegation arose as AB was being supported by a Victim Support counsellor due to a burglary. The referral to Social Services came through them not her.  

19.	A Child Protection investigation was undertaken but no further action was taken. The only follow up was that Mrs. JJ went on a ‘safe care’ course for six weeks. It is the Appellant’s case that he implemented a very strict regime in the household after AB had made these allegations to protect himself. The Appellant was very angry with AB and wanted nothing more to do with her.  

20.	As AA was in foster care, she was subject to six monthly statutory Reviews.    AA never raised any concerns about JJ. From the age of 10 AA attended the Reviews and had the opportunity to give her views on forms that were designed to be child friendly.  The number of Child Line was included on these forms. Neither did JJ nor his wife record any real concerns about AA, even when they became concerned that aged 16 she was falling under the bad influence of AB.  In March 2006 the Appellant had described AA as the “perfect child”. On 24 August 2006, so very shortly before the allegations came out there was discussion about AA returning to live with the family during holiday periods if she joined the forces, and paying them board.  

21.	In 1998, during a Review AA’s mother said she had been told that the Appellant   had come downstairs naked. He said that he had been wearing his swimming trunks ready to take the family on their regular outing to the baths.  This explanation was accepted and no further investigation followed. 

22.	There is an issue as to whether the Appellant was de-registered from the Foster Carers Panel or resigned. He stated that he and his wife understood that they were resigning. Social Services state that he was de-registered because this was the second complaint that had been made.

The Evidence 

23.	The complainant AA gave evidence.

24.	We heard evidence from the Appellant, his wife, his adopted son SJ and two natural children LJ and KJ.  Additionally, we read two character testimonials, both very positive but not central to the allegations. Two other witnesses provided signed statements but did not attend the hearing. We therefore attach very little weight to their evidence as no satisfactory reason was given for their absence and no sick note was produced.   

25.	The Tribunal read two volumes of evidence. Volume One included all of the Appellant’s witness statements, AA’s statutory ‘looked after’ child care reviews and summary and documents relating to the of the police case in 2006. Volume 2 contained AA’s statement, transcripts of the police interviews with AA and the Appellant and a transcript of the trial. We have carefully read all this evidence, which we have taken into consideration even if we have not specifically referred to it, also bearing in mind the need to protect the parties to the proceedings being identified.  

26.	The Appellant and his wife prided themselves on treating all of the children the same. AA agreed that she felt included in the family and in the extended family.   All the witnesses agreed that she was a quiet child, initially preferring to spend periods of time alone in her room who tended to have one friend rather than many friends.  Encouraged by her foster parents she took up a number of extracurricular activities, was making progress at school and had career ambitions. She was closest to KJ as they were of similar ages. 

27.	 AA was not close to AB because she had moved out months after she joined the household aged six.  AA agreed that the way of resolving issues was to have family meetings. A meeting was called in 1997 after AA had made her allegations. She had understood that AB was not to be allowed into the house. She didn’t recall that she had been told the specifics of the allegations made or that they were explained to her in any detail subsequently. 

28.	Thereafter the Appellant implemented a ‘safe care’ regime which included practical measures such as having locks on the bathroom and all family members needing to cover up. He interpreted this as not only would he never enter AA’s room if she was there. If she was alone upstairs and he wanted to use the bathroom, he would call her down. 

29.	 The evidence at the trial had centred on the impossibility of his being alone with AA due to his work hours.   He accepted that until 2004 he worked regular 9-5 hours and thereafter was out of the house more but had some weekends free from work.  This was a small three bedroom house.  Mrs. JJ as the main carer was at home most of the time. The boys slept in one room and AA had her own room.  AA said that the incidents had happened when she was alone with JJ but accepted that Mrs. JJ could have been in the house or garden out of sight.  

30.	It is the Appellant’s case that AA has been put up to the allegations by AB.  His family supported him in that view.   Around the age of fifteen/sixteen AB became a cause of serious concern to her parents. She was coming home drunk, lying to them about where she had been and was seeing a man about ten years older. Matters came to a head when they found out that she had not been going to college as claimed. Eventually they allowed her to leave home aged seventeen and live with the boyfriend. He is the father of the eldest of her four children. The relationship did not last and each child has a different father. The Appellant wanted nothing to do with her after she made her allegations but relented when the first  relationship broke down  and allowed her to come home  for a short time with her child, albeit that he made sure he was never alone with her.  

31.	The Appellant in his written and oral evidence gave us close detail of AB’s bad character, her poor choice of partners, her frequent moves and her poor parenting. Her children were twice put on the Child Protection Register.  AB had to seek the protection of the courts as one partner was violent. Another boyfriend served a period of imprisonment for being in possession of a gun, which lead to her having to go to a safe house and triggered concerns about her children. He was very concerned that she was using drugs and allowing others to do so at her house.  

32.	AA recalled that the first time that JJ touched her was shortly after her 12th birthday. The Appellant chased her up the stairs and into her room. KJ was in another room.  She thought they had been playing hide and seek and that Mrs. JJ was downstairs watching TV. She remained in her bedroom afterwards.

33.	The second time it happened in the bathroom two or three weeks later. She tried to lock the bathroom door but the Appellant got in and put his hands down her trousers and up her top. She cried in the bathroom for about half an hour. When she went down stairs her eyes were red and Mrs. JJ asked her what the matter was. She said “JJ” but was too frightened to say anything else.  

34.	With the third allegation again during a fun fighting session when she had been chased upstairs, the Appellant is alleged to have asked AA if she had been ‘fingered’.   She pushed him off and told him that she didn’t know what he was talking about.  Whilst she knew this was “dirty” ‘she wasn’t quite sure what it was and later asked a friend.  AA described the Appellant as pulling a horrible face when he did these things. 

35.	 Much evidence at the trial l and before us centred on ‘fun fighting’. Even if he had not made this clear in his police interview, the Appellant was adamant that this stopped in 1997, unless AA was visiting her mother when he and the boys might play fight.  AA claims the fun fighting went on until she was sixteen but she tried to avoid it by not joining in or locking herself in the bathroom. The Appellant and his witnesses denied that, although LJ when cross examined agreed that it sometimes went on.  He accepted that sessions after 1997 did sometimes involve AA but he said that his father generally would not chase AA up the stairs. 

36.	Last year AA revisited the area where the family went on a very regular basis to their caravan.   She recalled that during a game of hide and seek the Appellant found her and said “‘I’ve got you” and tried to put his hand down her trousers. She pushed him off, screamed for KJ and then cried.  Mrs. JJ told her that she took fun fighting too seriously. Mrs. JJ agreed with the Appellant and the other family witnesses that this could not have happened as the children were not allowed to play in the sand hills alone and the Appellant did not play hide and seek with them. 

37.	AA said that she had not said anything to Social Workers, medical professionals or a teacher because she didn’t want to lose her family.  She hadn’t got on with her Social Worker particularly and her mother had learning difficulties and they didn’t share things. She said that she had told a friend, but she was one of the two witnesses who did not attend. 

38.	It is the Appellant’s case, supported by his family that AB is a fantasist and by way of example relies upon an incident shortly after she had moved in with the father of her first child when they had been the victims of a burglary. He had overheard her telling people she had been raped by the burglars. He told her it was not true because he had accompanied her to the police station as she was a minor when she had made a statement.  She had not mentioned rape. He had also spoken to the men concerned who said that they had been to the house over a drugs debt. He believed that AB had told AA to make up these allegations as she had to have someone else to say it because her reputation was such that she wouldn’t be believed.  AA denied that and said that she was motivated by a wish to prevent it happening to other children. 

39.	In 2006 AB moved back near her parents, having also lived near them for a period in 2003.  They were concerned about her care of her children.  AB was about twenty-four but allowing young people, between thirteen to sixteen to drink and smoke cannabis in her house.  The Appellant as AA accepts made it plain to AA and KJ that he didn’t want them going there for that reason. 

40.	In 2006 AA started to see more of AB and knew that Mr. and Mrs. JJ did not like this. She felt they were being too harsh on AB.  She wanted to have a sister and to get to know her better. She felt AB empathised with what she was going through and they liked the same sort of music and things. She was a bit confused because although the Appellant and his wife didn’t like AB’s boyfriend they did continue to see her so they could see the children.  AA was allowed to baby sit, which the Appellant allowed   as AB would be out of the house.  

41.	AA accepted that she did sneak out to go to AB’s house without permission.    On the first occasion that the Appellant found her there, he said he wouldn’t tell Mrs. JJ because he knew that she would hit her, but he did and AA was grounded.  

42.	The allegations came to light via a number of routes. On the second occasion he caught her at AB’s house the Appellant said to AA that he would ‘blackmail her’.  He agreed that he had said that but it was a case of not using the right word, due to his dyslexia.  This was interpreted by AA that he might,   after a gap of about 18 months try and touch her again and she didn’t want that to happen. She had already started to think that she should confide in somebody about what she knew was inappropriate touching.  AA told AB that she was scared he would blackmail her.  AB kept asking her what she meant. After about half an hour AA told her that over a period of years, particularly during fun fighting games JJ had tried to touch her. She said AB had tears in her eyes. AA went upstairs and after half an hour came down.  AB said that the Appellant had done the same thing to her, but when she had tried to tell the police but they had done nothing about it.  

43.	AA thought AB might tell Mrs. JJ but a few days later assumed that she had not, as Mrs. JJ asked her if she was going to baby sit for AB.  She then confused her by saying that she would be grounded if she did.   AA did baby sit and at 11pm LJ came to see where she was.   He was nominally in charge as Mr. and Mrs. JJ had gone away for the night.  He insisted she come home.  AB who had by then returned home rather drunk, said to him that he didn’t know what she and AA had been through.  LJ asked her what she meant but she gave no details. A friend of AB who was present said something had happened with JJ.  LJ agreed that AA had run off. He thought that he might have chased after her and said that she had better be telling the truth, but had not questioned her as he did not want to hear what she had to say.  AB returned home the next morning and AA was grounded by Mrs. JJ. There was no discussion about what LJ had been told.  

44.	The next day, August Bank Holiday 2006, the Appellant learned of AA’s allegations through his brother-in-law at a social event.  He was told AA had tried to cut her wrists but this was not true.   AA had made a statement to the police in 2006 and confirmed AA’s account of how she had come to tell her.  AA had asked if she could tell some of her, AA’s friends.  The police case summary records how this information went through a number of people to the Appellant’s brother- in- law.  The Appellant immediately denied any wrong doing and said that AB was again spreading rumours about him. This had caused him problems in the past. He had been involved in two fights and had a brick was put through his window.   He told his wife who said they would sort it out when they got home. That night the Appellant went to bed and his wife went to retrieve AA from AB’s house where she had been babysitting.

45.	Mrs. JJ found AA at AB’s house.   AA recalls that she was very angry. Mrs. JJ felt she was not confrontational but agreed that she had said that if AA did not come home she would be bound to call the Social Services Emergency Duty team.  AA agreed to go home. 
 
46.	The following morning the Appellant left with KJ and told LJ to go out.  Mrs. JJ accepted that AA had not wanted to talk to her. She coaxed AA out of her room and told her if she didn’t tell her what was troubling her she would have to call Social Services.  After about an hour and a half, AA made one allegation to her that the Appellant had chased her up the stairs and tried to put his hand up her top and down her front.   AA had her back to her but from her reflection in the window, seemed to be laughing. AA denied that but accepted she may have misinterpreted a nervous reaction. She felt Mrs. J was angry with her so only told her about one allegation.

47.	That day AA went for a pre-planned holiday with her mother. Mrs. JJ informed Social Services that an allegation had been made.  The Appellant was not interviewed immediately. The Appellant was not seen by the police for three weeks, when he voluntarily went to the police station and gave an interview without a solicitor being present, as he felt he had nothing to hide. 

48.	AA never returned to live in the household.  On her return she was moved to a new foster placement in a different area. She agreed that she had asked AB if she could live with her, but that was because she missed her friends.   She told her foster mother that she and AB had a huge row and AB ‘kicked hell out of her’. On 24 March 2007, the foster mother informed Social Services that   AA now had a court date in July and asked her what would happen in court if someone was lying.  AA said that she was not lying but AB had said that she was. Earlier records refer to her wish to see the Appellant, whom she liked and did not want to go to prison and that she would like to live with again. She had said that she did not want to go to court and seemed very anxious. 
  
49.	SJ who visited AB most regularly met AA there and heard her talk about returning to the family. AA said that she knew that was not possible but she missed them.  AA was not surprised when AB did not attend the criminal trial. 

50.	The Appellant emphasised his concerns that AB used drugs and allowed others to smoke cannabis at her house.  AA accepted that on one occasion she had been drunk whilst at AB’s and tried cannabis.   She accepted that she had been persuaded by her friend when she was about fifteen or sixteen to try alcohol. She had told her new foster mother after she left the house that she had been smoking cannabis.  She no longer drinks and doesn’t particularly like drink or what it does to people.

51.	AA stated that she now hates AB. She has seen her occasionally but only to see the children.  She was close to her at the age of fifteen or sixteen, for a year or so and looked up to her but she didn’t want to be like her.  Mrs. JJ confirmed that AA had said to her about then that she did not want to be like AB and would only have children once she was married.  AA said that whilst she wanted a sister, she quickly realised that much of what Mr. and Mrs. JJ said about AB was true.  AB was aware that she was to attend the hearing and had sent her texts,   not to offer her support but to find out if AA was saying that she had given her drugs. 

52.	AA agreed that during the criminal proceedings she hadn’t mentioned that Mrs. JJ had hit her, but she didn’t see that as a central part of her allegations. She described this as pushing her up against a wall and slapping her for things like not folding her clothes and disturbing the Appellant.  AA accepted that at times she was out of order and learnt from being disciplined. None of the witnesses accepted that AA had been hit by Mrs. JJ.  Mrs. JJ and LJ agreed that she did sometimes give him a cuff, because he was the child who gave her a lot of cheek. 

Our Findings:

53.	This case turns on credibility. We reach our conclusions in the light of the evidence overall, but exclude from our consideration allegations made by AB.  We are satisfied that AA fully understood the implications of making allegations against the Appellant. She explained in evidence that she realised that to make such allegations would inevitably lead to the loss of her family and that she was very, very reluctant to do that, and realised this at the time of the events in question. In the event, disclosing these matters had that inevitable consequence the only real family life she had experienced since the age of 6 was lost to her. The Appellant suggests no other reason for AA making the allegations and none are apparent to us. We have also considered and rejected for the same reasons, that AA may have simply been seeking attention.  We find that she disclosed these matters because they were true, not because she was influenced by AB or for any other reason.  

54.	Overall we found AA’s evidence measured and balanced, with no hint of embellishment or element of revenge.  In contrast the Appellant tended to take extreme positions to deny the possibility that the alleged events could have happened. 

55.	The Appellant points to additions and inconsistencies to the evidence the   AA gave in 2006.  Overall we find that they are capable of explanation and do not cause us to doubt her credibility.   She did not suggest that Mrs. JJ was unduly harsh to her.  That she hit her on occasions, was not central to her allegations or the reason why she did not disclose them earlier.  The allegations were of inappropriate touching, that required AA and JJ to be alone in a room but not in the house. We accept that AA never meant to suggest that they were alone in the house. 

56.	The Appellant did not say that fun fighting stopped in 1997, when he was interviewed by the police in 2006 but did say that at the criminal trial. This was so central to the allegations, that we would have expected him to make that very clear at the first opportunity. When interviewed the Appellant was asked a number of questions about this, which makes his explanation of being confused due to his dyslexia unlikely.  

57.	 Further, we find it improbable that AA in making allegations in 2006 would be able to remember the detail of a game that she only played on two occasions ten years before. There would be no reason to stop fun fighting as part of a ‘safe care’  measures following the 1997 allegations, particularly as AB had left the home and AA had never made any allegations.  We find it far more likely that this family game did continue and that the Appellant supported by his family is now trying to distance himself from the allegations by saying it stopped.  We find that it is far more likely that, as stated by LJ when he was pressed on this point, that it did not stop completely but generally  the Appellant did not chase AA up the stairs and that sometimes, but not always he would ask  them to stop if fun fighting got too aggressive. 

58.	Social Services took no further action after the 1997 allegations.  Mrs. JJ attended a ‘safe care’ course but no other requirements or restrictions were placed on the family.  The strict regime described by the Appellant whereby he would never be alone with AA, even if only on the upstairs floor whilst he went to the bathroom appears extreme, unnecessary and unworkable. Whilst the Appellant had reason to be cautious of AB, who was no longer living in the house he had no reason to fear AA who would then only have been seven years of age. 

59.	AA gave clear evidence about the three incidents of inappropriate touching that occurred in the house. This was opportunistic touching during a game. 

60.	The fourth allegation relating to a game in the sand hills is a recent allegation. AA recalled this when she revisited the area last year. It has caused us to consider the accuracy of her memory.  However, the allegation is very similar to the other three and we accept that it happened.  On this occasion the Appellant tried to touch AA but stopped when she screamed.     

61.	Save for these allegations AA has no real complaint about her foster carers, with whom she lived for ten years. They were her family.  Given how much AA had to lose by making these allegations we do not accept that she made them up.  

62.	We do not find it inherently plausible that AB influenced and continues to influence AA to make these allegations. AA has no history of lying or challenging behaviour.  Very shortly before the allegations came out the Appellant described her as the “perfect child. The evidence shows a teenager who was asserting her independence by seeing AB when she had been told not to and not always joining in with family meals in the way she had before.  AA agreed that things slipped at school but only that, for the first time a letter a letter was sent home.  Mrs. JJ did not remember this, which we find significant.   AB was allowing young people to come into her house and smoke cannabis but AA says she only did this once or twice.  The evidence does not support that AA’s behaviour “changed dramatically” when she became friendlier with AB.

63.	 Overall we accept AA’s account that in 2006 she did want to know AB better, as she wanted to have a sister.  Initially she was prepared to give AB the benefit of the doubt, but soon realised that the concerns that the Appellant and his wife had raised were justified, particularly around AB’s care of her children. We accept that she wanted to know AB but not be like her. 

64.	We have very carefully examined how these allegations came to light and find that the history shows that AA was reluctant to make her allegations. AA did not make a complaint against the Appellant.  She only told AB, after she pressed her to say what was wrong, after the Appellant found her at AB’s house and said that he would ‘blackmail’ her. The Appellant was initially approached because AB had talked to friends.  AA did not willingly speak to Mrs. JJ, who was bound to call Social Services as an allegation had been made.  .  AA has been consistent in her account.   

65.	The Appellant and his family have raised detailed criticisms of AB, her character and lifestyle. Yet AB still has support from them, even if only through her children, three of whom they see on a very regular basis.  In stark contrast AA, in 2006 lost all contact and support from the family.  AB has not been willing to be tested on her own allegations, which could if found to be true have been collaborative evidence.   Far from supporting AB when she had to leave the house in 2006, there is a recorded incident of her being aggressive to AA. The evidence does not support that AA’s behaviour “changed dramatically” when she became friendlier with AB.  The Appellant has not actively challenged AA’s assertion that she now only sees AA very rarely and they are no longer close. 

 Did the misconduct harm or place at risk of harm a child or vulnerable adult?

68.	 It is common ground that if we found the allegations of sexual touching proved, it would necessarily follow that the misconduct would harm or place at risk of harm a child.

Is the Appellant unsuitable to work with children?

 69.	Other than referring to the age of the allegations, Ms. Smith made no detailed submissions on suitability. The Appellant does not accept he has done anything wrong so it cannot be said that he has changed.   In relation to the sexual misconduct, this inevitably makes the Appellant unsuitable to work with children.

Is the Appellant unsuitable to work with vulnerable adults?

70.	It was not accepted on behalf of the Appellant that a positive finding would make him unsuitable to work with vulnerable adults but again this point was not pursued with any force. That is not to say that we consider that a vulnerable adult would be at risk of harm, but Section 86(3) Care Standards Act    2000 does not require such evidence.  The Appellant was in a position of authority and trust. Each case must be examined on its own facts but the Appellant accepts no wrong doing, so change is not possible. It inevitably follows in our view that the appeal in relation to PoVA should fail.

 ACCORDINGLY, BOTH APPEALS ARE DISMISSED. 

Judge John Aitken
Judge Melanie Lewis
Ms. Margaret Diamond

Date:   3 February 2010.