IN THE FIRST TIER TRIBUNAL
HEALTH, EDUCATION & SOCIAL CARE CHAMBER
CARE STANDARDS TRIBUNAL

LC
-v-
The Secretary of State

[2009]1513.PC
[2009]1514.PVA
Before: Tony Wadling (nominated Tribunal Judge)
Bez Chatfield (Specialist Member)
Chris Wakefield (Specialist Member)

This is an appeal under section 4 of the Children Act 1999 and Section 86 of the Care Standards Act 2000 against the Respondent’s decision of 9 February 2009 to include the Appellant in the list of individuals considered unsuitable to work with both children and vulnerable adults (the “POCA and POVA” lists).  The two appeals were consolidated in accordance with Rule 5(3) (b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 by a direction made on 1 July 2009.    
On 1 July 2009 a Restricted Reporting Order under Rule 14(1)(b) was made 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 child.

Evidence for the Respondent
1.	The Appellant is a foster carer previously approved by Northamptonshire County Council in 2004.  She and her husband adopted KC (dob 28/9/1991) and DC (dob 12/12/1994) who are siblings.  On 15 January 2008 KC made a complaint at school that on the previous day she had been assaulted by the Appellant and on various other occasions.  The complaint was referred to the Police Child Protection Unit.  The Appellant attended at Wellingborough Police Station on 22 January where she was interviewed under caution having been given advice by a solicitor.  She admitted that in a single incident she had struck KC with a wooden spoon about five times; this was a conscious decision but she did not believe it to be illegal.  The reason given for the assault was that KC had been given money for train fares to travel to school in the previous month but had not done so and a fine notice had been received for non payment of tickets.  She was shown a diagram of the injuries inflicted on KC and accepted responsibility for most but not all of them.  Following the interview it was decided by the Duty Sergeant, as the Appellant had made sufficient admissions and that KC did not wish to give evidence against the Appellant that would result in her having a conviction, that a caution was appropriate accordingly caution was given for the offence of causing actual bodily harm on 22 January 2008.

The interview of KC by DC Brickwood

2.	DC Brickwood interviewed KC on 16 January 2008 and she gave an account of what had taken place between her and the Appellant.  KC said that on the previous day she had been given the money to buy a train ticket to get her to school.  When she returned home the Appellant asked KC to show her train ticket (the issue being whether KC had bought a ticket or had spent the money and avoided paying her fare).  KC said that she had lost her ticket and the Appellant attacked her with a wooden spoon hitting her repeatedly and claiming that KC had lied to her.  KC went into another room and was followed by the Appellant continuing to hit her.  KC was asked if this was the first time she had been assaulted and she said that it had happened in the summer and that she had again been hit with a wooden spoon, her head had started bleeding and the Appellant would not let her go to school.

3.	KC also said that if she had forgotten to take her PE kit to school or put the wrong thing in the dishwasher the Appellant would hit her.  When she was in year 4 or 5 at school the Appellant had hit KC with a rod because she had wet herself.  KC told a friend what had happened and she told her mother.  The mother phoned a teacher at KC’s school who then phoned the Appellant.  She said it was not true and the teacher told the class that KC had lied and said something that was not true.  KC said the Appellant hit her and her brother DC but not her daughter J.  On the previous Monday the Appellant hit DC with a spoon four times because she had not washed.  KC recently put a tie in the wash, it was not her tie as she had swapped it with another pupil at school, she told the Appellant what she had done but was accused of stealing the tie, the Appellant smacked her until KC said that she had stolen it. The result was that she had bruises on her bottom and the Appellant saw them.  She also described an incident about three years ago in which she was given a teddy as a birthday present.  When KC showed it to the Appellant she would not accept that it was a present from a friend and she hit KC repeatedly until KC said that she had stolen it and the smacking stopped.  KC was asked about pocket money and she said that it had been stopped because she had not been writing in her notebook what she had been doing with the money.

Dr Alanah Houston (Medical Evidence)

4.	KC was examined by Doctor Alanah Houston on 17 January 2008. She recorded the injuries caused by the Appellant as follows; 
“bruising of the bridge of the nose with overlying abrasion; a 4cm bruise on the left temple with overlying abrasion, top of skull, 1.5 cm abrasion to the top of the skull, back of head various abrasions, right parietal area bruise 1.5cm, right shoulder bruise 3 cm, right upper arm bruise 9 cm x2cm, right forearm bruise 2 cm, right forearm bruise 7cm by 3cm, 4 cm abrasion to back of right hand, 3 cm deep bruise to left upper arm, 4 cm deep bruise to left elbow”.

5.	The opinion of Dr Houston was that the injuries were a few days old and were neither self inflicted nor an accidental pattern but they were consistent with the allegations of repeated blows with a blunt instrument to the face, top and sides to the head, right shoulder, upper arm, right forearm and hand, left upper arm and elbow.  The bruises on the right forearm were typical defence injuries, sustained with the arm raised to ward off further blows.  “They indicate that this very slightly built 16 year old girl has been beaten with an implement, including potentially dangerous blows to the face and side of the head.”
Evidence of Jacqueline Mosedale

6.	Ms Mosedale is the Child Protection Co-ordinator for Northamptonshire.  When a referral is made to Social Services concerning the wellbeing of a child, section 47 of the Children Act 1989 requires the Local Authority to carry out an investigation.  In this case the decision was made to hold a child protection conference on 31 January 2008 to discuss the risks to KC and DC.  A report was produced by Ben Scott, a social worker for the Wellingborough Referral team dated 30 January 2008.  Ms Mosedale was concerned in the way the Appellant portrayed KC as a liar and a thief who went out of her way to cause trouble and to upset the Appellant.  She told the conference that on 14 January the appellant had hit KC with a wooden spoon repeatedly because she had kept money that should have been used to buy a train ticket.  Throughout the various conferences the Appellant was calm and emotionless; her husband was described as a non-participant.  Throughout the Appellant maintained that it was OK to hit her children with a wooden spoon but said that she would no longer do it.  

7.	It became apparent that the respective schools of KC and DC both failed to alert social services of assaults on DC and KC.  KC was moved to another home as were the two babies that the Appellant had fostered and DC remained at home.  The local authority considered this was workable. 
Graham Baker 

8.	Evidence was given by Mr G Baker, the Deputy Head Teacher of Wellingborough School, a school for children aged 11 to 16 with special needs.  DC came to the school when he was seven.  Each student is provided with a home school book for contact with parents to provide information on the student’s behaviour.  If staff members were intending to include negative remarks in his home school book, DC’s reaction would appear to indicate that he was scared of his parents finding out that he had misbehaved.  It was suggested by an Educational Psychologist that DC suffers from ADHD and would benefit from the use of medication but the suggestion was refused by the Appellant and her husband.  They complained that DC was not given enough homework even when it was apparent that he was struggling with the work already provided.

9.	Inquiries were made of DC’s previous school as to whether there had been any child protection issues concerning DC, the file was obtained containing two matters.  A bruise was noticed on DC’s ear on 28 March 2003. When asked about it he said “mum does not want me to say but she did it with the slipper”. He also said that he has a cold bath if he tells lies to his mum.  The matter was referred to Social Services but there was not any record available.  On 10 March 2005 a bruise, roughly the size of an egg was noticed on the back of DC’s head. He said that the Appellant had hit him with a wooden spoon as he had not done his homework.

Jacinta Bates

10.	Evidence was given by Jacinta Bates, she is a teacher at Bishop Stopford School specialising in teaching children with Autistic Spectrum disorders and other special educational needs.  On 15 January 2008 KC was found in a school locker room in a distressed state, she had just arrived at school and was taken to Ms Bates office, she had a number of visible injuries, blood in her hair, the back of her head and face, her left elbow was swollen, there were marks on her wrists and upper arms and nose.  KC said that her mother had done such things before; on another occasion she had hit KC on her head and then kept her away from school pretending KC was ill.  On another occasion two years before KC had gone to the Deputy Head but asked him not to say anything.  A file note confirms that there was bruising on the back of her hand.  The mother of a friend of KC’s had also contacted the school and Social Services expressing concerns about KC.  Mr King asked the PE Staff to be vigilant for evidence of bruising or physical harm.  Another note on KC’s file dated 11 January 2005 records that one of KC’s friends told her mother that KC was being hit at home and had bruised hands.

11.	KC had also shown her friend L the bruising on her knuckles caused by the Appellant hitting her with a wooden spoon when KC had found some Vaseline and taken it home.  The Appellant found it in a bag and smeared it over KC’s face and then hit her on the hands and across her head.  L said she could feel two large lumps.  Ms Bates told KC to phone childline but KC said she was too frightened to do so.  Ms Bates then called Social Services and temporary accommodation was obtained for KC.  KC was concerned that she could sit her GCSEs.  KC left Bishop Stopford after completing her GCSEs and a place was found for her in a sixth form College.

12.	Dianne Camm

13.	Evidence was given by Dianne Camm, Fostering Services Manager of Wellingborough and Northamptonshire; she is responsible for the recruitment, assessment, approval, support, supervision and review of foster carers with whom the Council places foster children.

14.	On 15 January 2008 she was made aware of KC’s injuries and later that day went to the Appellant’s address and told her of KC’s complaint of assault.  The Appellant admitted hitting KC.  In the presence of the Appellant DC also said that he had been hit with a wooden spoon.  The two babies who were fostered with the Appellant were removed from her care.  The subject of KC’s injuries was discussed and the Appellant stated that what she had done was “punishment equal to the crime”.  The impression given was that the Appellant did not consider the incident to be serious.  She appeared to be concerned for DC but not KC.  The impression given to Ms Camm was that the Appellant did not think she had done anything wrong.  Following the Child Protection Conference on 31 January a Family Safety Agreement (FSA) was put in place.  The terms were that the Appellant would stay in the family home but that she was not to be alone with DC and her husband had to supervise DC at all times when the Appellant  was with him.

15.	The Appellant’s approval as a foster carer was terminated when she accepted a caution for committing the offence of assault causing actual bodily harm by hitting KC with a wooden spoon.  The Appellant did not appeal the decision and she was referred to the Secretary of State for placing her on the PoCA and PoVA lists.

Amanda Mutemadango 

16.	Evidence was given by Amanda Mutemadango. She is employed by 
Northamptonshire County Council as the Team Manager for the Placement 
Management Service, and prior to this a Principal Social Worker in the 
Fostering Team.  In 2004 she was assigned to complete the Fostering
Assessment of the C’s and was their principal social worker until September 2007.  During the assessment and supervision period neither KC nor DC said anything that led her to believe that there was inappropriate discipline although KC did say that she had been smacked in the past.  It was made clear to the Appellant that there would not be any smacking and the Appellant assured her that would be the case.  As a result of the events concerning KC and DC the Fostering Service is changing its procedure to now explicitly check with the referral team as part of the fostering assessment and at the annual review when there are birth children in the household.

Ben Scott

17.	Evidence was given by Ben Scott; he is employed as a Referral Team Social Worker for Northamptonshire County Council.  The Referral Team provides services for children and referrals from any agency or person concerning a child’s wellbeing.  He undertook an investigation of a request concerning an allegation of abuse of KC.  On 15 January 2008 a strategy meeting took place and it was decided that he would interview KC with a police officer.  He noted the injuries to KC and she told him that she had been hit by her foster mother; temporary accommodation was found for her. On 18 January he spoke to both KC and DC.  He spoke to DC with his teacher (Lynda Mitchell) in the presence of the Head Teacher and a police officer.  It had been previously recorded that DC had been hit with a stick but no immediate action was taken.  On a date in late 2007 DC was sent to school, a note from the school was sent stating that he was unwell and should have stayed at home. He told the teachers that the Appellant had told him that it was his own fault because he had not taken his vitamins.  The Appellant stated that in the case of both DC and KC they needed strong and consistent discipline, they were both difficult children.  In her view it was acceptable to hit KC and DC with a wooden spoon, referring to the assault she described it as an incident that got out of hand.  At the 31 January 2008 it was decided to put DC on the Child Protection Register but as KC had left the home she was considered not to be at risk.

The Appellant’s case

18.	JD, the Appellant’s daughter gave evidence.  She adopted her statement in which she said that the investigation had not taken into account the person that she has turned out to be and was in her parents care for 18 years.  She performed well at school and would describe herself as a fully functional relatively successful, stable and secure adult.  She is in the second year of a degree course and has been married for three years.  She described DC as a wonderful person who is happy and extremely content with his life, he has a good relationship with his parents.  Her mother’s temperament is calm as is proved by the babies placed in her care who would settle in her presence, there have not been any problems or complaints concerning her ability to look after children.  She recalled being smacked as a child by both parents when she had deliberately done something wrong.  As a teenager she was grounded or pocket money was threatened to be taken away.  Guidance and support was given for education and school work.  KC seemed slower to settle and form good relationships with others, she remained withdrawn and unable to attach herself and did not really accept how the family worked, nor did she particularly wish to be a part of it.  EH also gave evidence; she first met the Appellant and her family when she moved into the same area as the Appellant and her family.  She was welcomed by the Appellant and socialised with her family.  Her son later married the Appellant’s daughter and sometime later the families went on holiday together.  The Appellant often had a baby that she was fostering and she showed affection for babies in her care.  In her experience the Appellant speaks words to encourage and build people up rather than to despair or tear them down.  Five further letters of support were submitted in support of the Appellant’s appeal.

19.	The Appellant’s evidence was that prior to her assuming responsibility for KC and DC they had traumatic and disruptive lives, they suffered in excess of twenty recorded moves within two years which ended when their mother abandoned them, at the time they were five and two years old.  Since then KC has hoped that her “real” mother will come back into her life.  She has not been able to fully accept the Appellant as her mother and appears frustrated that the Appellant does not live up to her fantasy of what a “real” mother would be like in terms of freedoms she would be allowed and material possessions that would be given to her.  The Guardian is recorded as stating that “I am very impressed.”  KC and DC moved in with the Appellant in 2001.  She states that she is an “old fashioned mum” in many ways and holds to old fashioned values.  When she was growing up teachers were allowed to hit pupils with rulers, the cane etc, most parents smacked their children.  She accepts that we live in a different era now but she maintains the belief that it is a parent’s responsibility to discipline their children.  She accepts that “she was seriously remiss” in using a wooden spoon to beat KC which began in 2005 until 2008.  She did not consider it abusive as she had not used it in anger prior to 14 January 2008.  It was not the only means of discipline used and did not use it often; it was always a last resort after warnings.  It was made clear by the Appellant during the fostering assessment that she was not willing to give up her right to smack her own children.  The use of corporal punishment was discussed and Ms Mutemasango had no concerns also when she visited until 2007.

20.	Matters were raised by the Appellant as to the accuracy of evidence submitted by the Respondent none of which directly affects the primary evidence concerning the assault on KC.  It was not disputed that there was no justification for this serious assault on a young and vulnerable person who was in the care of the Appellant.  It was suggested that “KC wanted to be found that day and she made a calculated decision to tell what had happened in the most dramatic way”.  It was also suggested that KC had not had a shower or washed her hair before leaving for school on 15 January so that she could tell what happened at school.  She had a scab both on her head and nose, it was suggested by the Appellant that KC had picked them every day.  The Appellant’s claim was that KC was not traumatised by the assault as she went to school for the rest of the week.  This assertion is not supported by the evidence of Dr Houston.

Burden and Standard of proof

21.	The issue of burden of proof and the standard of proof and the law to be applied has been considered recently by this Tribunal in AJ v Secretary of State[2009] UKFTT277 (HESC) who said in Paragraphs 14-23
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 with vulnerable adults. 
The standard of proof is the civil standard of the balance of probabilities. We apply the standard of proof as set out in the speeches of the House of Lords in Re B (Children) [2008] UKHL. Lord Hoffman said “…There is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.” Baroness Hale, said: “Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are something to be taken into account, where relevant, in deciding where the truth lies.” Although Lord Hoffman and Baroness Hale were considering Care proceedings in Re B (Children), their comments, in our view, are applicable to the issues that we have to decide in PoCA, PoVA and List 99 appeals. 
We accept Mr Coppel’s description of the object of the list in his outline opening skeleton argument that “the list is not punitive. It is not disciplinary. Still less is it intended to shame or stigmatise a person.” The overriding purpose of the list is a safeguarding provision; to lessen the potential risk of harm to children by preventing those who are guilty of misconduct that harmed a child or placed a child at risk of harm and who are in consequence deemed unsuitable to work with children, from being in a position to have extended unsupervised contact with children. Nonetheless, the allegations in this case are serious; and the consequences for the Appellant are also serious.
Baroness Hale said in R (Wright) and others v Secretary of State for Health [2009] UKHL 3 at para 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.”  
Lord Hope, when citing Baroness Hale’s remarks, made much the same observations but in a different context, in R (on the application of L)(FC) v Commissioner of Police of the Metropolis [2009] UKSC 3: “[She] is entitled also to have her good name and reputation protected…As Baroness Hale said…the fact a person has been excluded from employment is likely to get about and, if it does, the stigma will be considerable.”
The list has very serious consequences for an individual whose name is confirmed on the list [and that is why the House of Lords in Wright decided that both article 6 and Article 8 of the EConHR are engaged], and this Tribunal has had sufficient experience, in dealing with these appeals over the last decade, of witnessing the consequences for individuals whose names have been confirmed on the list. 
Our view of the seriousness of the consequences, however, does not affect our approach when applying the standard of proof; namely the civil standard of the balance of probabilities.

The law to be applied
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.             
Section 86)(3) of the Care Standards Act 2000 has similar wording in relation to the vulnerable adults list. 
The law is now well settled. As the Tribunal said in AH v Secretary of State [2009] UKFTT 176: “There are only three matters that the Tribunal must consider... First, we must decide whether or not the Applicant is guilty of misconduct. Secondly, did this misconduct harm or place at risk of harm a child or vulnerable adult? Thirdly, but only if we are satisfied as to the first two conditions, is the Appellant unsuitable to work with children and/or vulnerable adults. The Respondent carries the burden of proof on the balance of probabilities. In Secretary of State v Sini [2009] 1 All ER 1025, Goldring J (as he then was) in approving the approach taken by this Tribunal said that on a true construction of the legislation (in that case s 86(3) Care Standards Act 2000, but the wording is the same as the Protection of Children Act 1999) there was no restriction on the allegations of misconduct which could be considered by the Tribunal. Accordingly, as this Tribunal is not restricted to considering only the details of the alleged misconduct which constituted the basis of the original referral, it necessarily follows that it has no jurisdiction to consider whether the initial referral was or was not within the terms of the Protection of Children Act.” This is the approach that we apply.
 
The impact of a listing in PoCA on PoVA lists has also been considered in AJ v Secretary of State [2009] 1527.PC in Para 119.

In CN v Secretary of State [2005] 398.PC, the Tribunal said: “We do not think that a person who remains on the PoCA list [for the reasons in that case, which involved downloading pornographic material]…should be removed from the PoVA list. Society has a legitimate interest in ensuring that those who are considered unsuitable to work with children are not given positions of trust in relation to vulnerable adults. This is not to say that we consider that a vulnerable adult would be at risk of harm by Mr CN. But the Act does not require such evidence, and it is sufficient to satisfy the test in section 86(3)(b) read with section 92(4) of the Care Standards Act 2000 that he is unsuitable to work with vulnerable adults by virtue of the misconduct which placed a child at risk of harm…We do not wish to say that it will always inevitably follow that an appeal under section 86 will be bound to fail in the event of the appeal under s 4 of the Protection of Children Act being dismissed. Each case will be decided on its own facts, and context will be all important.”

We adopt the paragraphs in that case as representing the law to be applied.

There is no dispute that the Appellant committed a grave act of misconduct by assaulting KC, a vulnerable child in the care of the Appellant.  The evidence does not provide any mitigation other than she admitted the facts of the offence when interviewed by DC Brickwood.  We have taken into account the Appellant’s previous history of child care in which there were no previous complaints but on the evidence before us we consider the risk of future occurrence too great and find that the Appellant is wholly unsuitable to work with children or vulnerable adults.

22.	Appeals Dismissed.

Tony Wadling (nominated Tribunal Judge)
Bez Chatfield (Specialist Member)
Chris Wakefield (Specialist Member)

23 November 2009