Norford v Secretary of State [2009] UKFTT 14 (HESC) (06 February 2009)
 Schedule 4 cases: Protection of Children Act List and Prohibition from teaching and working in schools - Prohibition from teaching or working in schools

JOSEF NORFORD
Appellant

–v-

SECRETARY OF STATE
Respondent

[2007] 960PT

Before

Mr. Stewart Hunter (Nominated Chairman)
Ms. Elenor Fowler
Mr Graham Harper

       Heard on 5th September 2007 and 1st December 2008 at Walsall County Court

                                                        DECISION

Representation

For the Appellant – Mr Paul Rodbourn (National Union of Teachers)
For the Respondent – Miss Kate Olley (Counsel)

Appeal

1.	The Appellant appeals pursuant to Section 144 of the Education Act 2002 and Regulation 12(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 against the direction of the Secretary of State given on the 10th December 2006 under Section 142 of the 2002 Act on the grounds that he is unsuitable to work with children.

Preliminary Issues

2.	On 5th September 2007, the Tribunal made a Restricted Reporting Order under Regulation 18(1) of the Protection of Children and Vulnerable Adults and Care Standards Regulations 2001 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 or young person.  That Order remains in force until further Order.

The evidence

3.	The Appellant obtained a degree from Wolverhampton Polytechnic in 1988 following which he completed his PGCE in secondary education.  After qualifying as a teacher, he then worked at a number of primary schools in the West Midlands area up until July 2003, following which he worked for the National Black Boys Can Association.

4.	On 9 February 1984, the Appellant was convicted of assaulting his then partner for which he was given a conditional discharge for twelve months, and of wounding her eleven year old son for which he was fined £200 and bound over for twelve months.

5.	In 1991 whilst the Appellant was a teacher at YT primary school, an allegation was made against him by “CD”, a ten year old pupil, that he had been sexually assaulted by the Appellant.  The matter was investigated and papers sent to the Crown Prosecution Service.  On 7 January 1992, the CPS wrote to the police having considered the papers and in their letter included the following:-

	“The allegations made by CD are uncorroborated.  The evidence of the school secretary could add colour to the allegations but do not amount in my view to corroboration. ……is concerned by what she senses has been going on, indeed concerned enough to report the matter to the Headmaster but she does not actually see anything untoward occurring.  Without any corroboration either from…………or from other children mentioned by C. I am not satisfied that there is a realistic prospect of conviction.  The evidence of C’s mother is consistent with C with regard to him attending school early for the afternoon session but again this does not corroborate the allegation.”

	No action was taken against the Appellant.

6.	On 25 December 2002, West Midlands Police were informed by a parent of a child “CW” at ST primary school that the Appellant had sexually abused him.   On 6 January 2003, the Appellant was suspended from his post as a teacher at ST.

	The Appellant was charged with three counts of indecent assault on a boy under fourteen.

7.	In a letter dated 2 July 2003, West Midlands Police wrote to the Department for Education and Skills regarding this matter and in their letter stated the circumstances of the allegations against the Appellant to be as follows:-

	“On Christmas Day 2002, Mr Norfold unexpectedly arrived at the home address of the alleged victim during which Mr Norfold hugged the pupil against his wishes.  After Mr Norfold left, the pupil disclosed to his father that Mr Norford had been sexually abusing him. The abuse commenced with Mr Norford hugging and kissing him and escalated to taking the pupil to a store cupboard and touching the pupil’s penis.  The victim also alleged that Mr Norford asked him to have sex for money at Mr Norford’s address and that Mr Norford continually held him back in class after lessons or after school had finished.
	
	“The first charge relates to an alleged incident during a residential trip to Cumbria in October 2002 when the victim alleged that he spent the night alone with Mr Norford in his room. The further two charges relate to incidents at ST School between 1 September 2002 and 21 December 2002.”

8.	As a result of the allegation in 2002, West Midlands Police reconsidered the earlier allegation in relation to CD from 1991 and on the advice of the Crown Prosecution Service also charged the Appellant with that matter as well.  In a letter from West Midlands Police to the Department for Education and Skills dated 28 July 2003, the Police set out the circumstances of the 1991 allegations made by CD as follows:-

	“The alleged victim states that Mr Norford kept him back during breaks and lunchtime on a one to one basis for extra tuition, during which he alleged that he sat on Mr Norford’s lap whilst they looked at books and Mr Norford tickled him under his arms and on his feet.  On one occasion, between 1 September 1991 and 10 November 1991, he attended Mr Norford’s classroom as requested and on his arrival, Mr Norford locked the door and closed the blinds.  The alleged victim then sat on Mr Norford’s lap and they read a book on puberty together.  It is alleged that Mr Norford tickled the boy under his clothing and on his feet, culminating in Mr Norford allegedly placing his hands down the boy’s trousers and onto his penis where he left his hand for some time.”

9.	As part of reconsidering the 1991 allegations, the Police obtained a statement from CD dated 11 July 2003.   In that statement, CD said that he had made an earlier statement in 1991 regarding the matter, which had occurred when he was ten years old and a pupil at YT primary school.  In his July 2003 Statement, CD stated that:-

	“About two months ago, PC Gadd from the Child Protection Unit at Rose Street Police Station came to see me about Mr Norford.  He told me that he was investigating Norford for an allegation of sexual abuse and had found my details from old records relating to the allegation I made in 1991 about Norford.  I informed PC Gadd that I still felt very strongly about what happened to me and I was prepared to finally go to court and say what my teacher had done to me.”

	Later in the same statement, CD stated that:-

	“I am now 22 years old and the abuse happened over ten years ago but I still hate him for what he did.”

	CD went on to explain in his statement that in Year 4 Mr Norford had been his form teacher and they had spent quite a lot of time in the classroom alone. On several occasions Mr Norford had tickled him when they were alone and that matters had escalated when CD was in Year 5 and Mr Norford was no longer his form teacher.  CD then proceeded to set out what he said that Mr Norford had done to him by way of sexual assault.

10.	The Appellant denied all charges and the matter proceeded to trial at the Birmingham Crown Court.  As part of the Appellant’s defence in those proceedings, Statements were taken by those acting for the Appellant from Carol Ann Gibson and Sheila Cardin; unsigned copies of their statements were included within the Tribunal papers.

11.	Ms Gibson stated that she qualified as a teacher in 1998 and had subsequently obtained employment at ST primary school.  Whilst Ms Gibson stated that she had never taught CW personally as his class teacher, she had taught him in a literacy group.  In addition as part of the school’s behaviour strategy, CW had been sent to her on a regular basis for “time out”.  She described CW’s behaviour as “challenging”.  She then went on to state that in September 2002; Mr Norford had arrived to teach at the school.  She had worked in close collaboration with Mr Norford as she was teaching the upper groups for literacy from Years 6 and 5, and Mr Norford was taking the upper group for maths. She stated that Mr Norford was constantly thinking of the children and how to benefit them educationally.  She stated that:-

	“Joseph would not tolerate the children breaking classroom or school rules and there became a gradual change in the behaviour of the class.”

	She considered that Joseph was someone she could learn a lot from and his professionalism had a massive effect on her. She stated:-

	“We had a mutual view about education and I respected the way the Year 6 class turned their behaviour around and started to focus on their education as well as respecting and taking pride in their work.”

	In the penultimate paragraph of her statement, Ms Gibson stated as follows:-

	“The majority of the staff at ST are Christians and our premise is to value each child, to gain their potential and to encourage and praise them as individuals.  Joseph was highly professional, caring and supportive.  He was a diamond and there is no shred of doubt in my mind that he is innocent of the accusations made.  I wanted to talk to him and support him from the moment I heard he was in trouble, but I was told not to and advised against contacting him in any way.”

12.	Ms Cardin in her statement indicated that she was the School Secretary at ST school.  She stated that once Mr Norford had started teaching in the school, he had let the children in his class know what he expected from them regarding behaviour and had it quite clear to them that he was not going to stand them being late.  Ms Cardin included in her statement the following comments:-

	“Lots of parents came to see Joseph – they had to collect the children from outside and if there were problems, they would come in to speak to him – some parents obviously came more often than others.

	Joseph promoted the fact that he wanted to see parents and get them involved in their children’s education which he was passionate about.”

	Ms Cardin commenting on CW stated that:-

	“I have got to know C well and would say that he was the type of child that if something had been going on between him and Mr Norford he would not have been able to keep it to himself, but would have told the other children.  I think he was very sexually aware and say this because of comments he had made.  There was an incident with a girl in the class when C told another child that this particular girl had touched another child’s penis when they were in the infant class.  The girl was upset and told her mother.  The mother came into school and told C off and he was spoken to but denied that he had said it.”

	Ms Cardin stated that the school staff had been told that a member of staff had been arrested for professional misconduct and she had realised that as Mr Norford was not in school, it must be him.  In her statement she said that:-

	“We could not associate professional misconduct with Joseph as we all thought he was very professional, very caring about their children and especially their education.”

13.	On 26 March 2004, the West Midlands Police wrote to the Department for Education and Skills and included the following within their letter:-

	“I can now confirm that Mr Norford appeared at Birmingham Crown Court on 14 October 2003 when he was found not guilty of the charges in respect of my letter of 2 July 2003.  On the same date, the charge in respect of my letter of 28 July 2003 was not proceeded with.”

14.	As part of the investigations carried out by the Respondent, a request was made to the Birmingham Social Services Department for any relevant information about the Appellant.  A report was submitted by Ms Gillian Sebright, Principal Officer Organised and Institutional Abuse at the Child Protection Unit of Birmingham City Council.  In her report, Ms Sebright indicated that Mr Norford had been the subject of a joint police and social services investigation following the disclosure of an indecent assault by CW.  There had been a number of strategy meetings regarding the matter, all of which had been chaired by Ms Sebright, apart from the first.  Ms Sebright had been unable to furnish copies of minutes of those meetings owing to “a major corruption of the Department’s database”. She had however been able to work from her own notes in order to prepare her report.   She indicated that Mr Norford had come to the attention of Social Services and West Midlands Police when CW’s father had contacted the Police, after the Appellant had made a visit to CW’s home on Christmas Day.  As well as alleging abuse at school, CW had also said that he had been abused by the Appellant during a school trip.  Ms Sebright set out the details of the allegations made by CW.  She then stated in her report as follows:-

	“In the strategy meeting, a number of things of significance were discussed. Firstly the Head teacher, Mrs Robinson, was able to confirm that Mr Norford had been at a staff meeting at the beginning of term in September where she had told teachers that all contact with parents should be with the inclusion of either herself or the deputy.  No guidelines existed regarding home visits because it was explicit in the discussions that these would not ever take place.

	“In relation to the home visit made on Christmas Day, Mrs Robinson had established that Mr Norford had also visited other families during the school holiday, not by making enquiries, but by families approaching her and informing her. Whilst Mrs Robinson accepted Mr Norford does not celebrate Christmas, he was on leave and not at work so should not have been engaged in or undertaking any work let alone this unauthorised and unacceptable practice.”

15.	Ms Sebright also included in her report the following:-

	“Of most significant concern was the discovery that Mr Norford had a Schedule 1 (Children and Young Persons Act 1993) conviction from 1985 for Actual Bodily Harm for which he had received a conditional discharge and bind over; and then in 1992 he had been subject of a police investigation into an assault on a child in a school in Small Heath where he had hit the child with a hand and a belt.  The Police file had been processed to a charge but then not followed through.  Little additional evidence was available given the length of time since the incident and retrieval showed parental concern at subjecting their child to the criminal process, which is believed to explain the discontinuance.

	Discussion then looked at the CRB he had completed and it was discovered that there were anomalies on the form, (transposed first name, miss-spelt first name and then an administrative oversight in challenging”) and that Mr Norford had failed to declare a situation as he is required to do under the Rehabilitation of Offenders Act 1974.”

16.	Ms Sebright said that she had become aware that Mr Norford had been charged with offences against CW which had not ended in a conviction and that the LEA were progressing their investigation.  She went on:-

	“In my opinion, Mr Norford’s conduct leaves me to believe that not only has he breached his professional conduct boundaries, but also that he is a risk to young people and I believe young boys in particular.”

	And:-

	“As is often the case, there is no medical evidence and no adult independent witness to the alleged sexual assault, but the accumulation of evidence and the lack of reward to the child for disclosing this information leads me to believe that on the balance of probability, it did occur.”

17.	On 2 February 2006 the Respondent’s wrote to the Lucy Faithful Foundation sending copies of papers relating to Mr Norford and stating that:-

	“I should be grateful therefore if you would arrange to see Mr Norford and prepare a written report and professional opinion on their risk or potential risk, to, and suitability for, working with children in educational and other settings which will assist the Secretary of State in her decision.”

18.	A report was prepared by Dr Judith Earnshaw, Senior Clinical Therapist to the Lucy Faithful Foundation dated 31 March 2006.  Dr Earnshaw also signed a witness statement in these proceedings dated 4 July 2007.  In those documents, Dr Earnshaw set out her background, qualifications and experience.  She then indicated that she had had 2 three hour interviews with Mr Norford as well as documentation which had been sent to her by the Respondent.  In addition, she had a file of documents supplied by Mr Norford which included the statements of Sheila Cardin and Carol Gibson.

19.	Dr Earnshaw stated in her report that in her first interview with Mr Norford, they had discussed the 1984 convictions and the allegations of CD dating from 1991 and those of CW in 2002.  They had talked about Mr Norford’s attitude to these allegations, and about his understanding of why they might have been made.  During the second interview, Mr Norford had given Dr Earnshaw a life history, focussing particularly on his attitudes, relationships and sexual history.

20.	In relation to the 1984 convictions, Mr Norford told Dr Earnshaw that the offence of assault occasioning actual bodily harm had taken place when he was 24 years and in a cohabiting relationship with a young Irish woman with two children.  Mr Norford had recalled that the boy was eleven years at the time of the offences and the girl was older.  Mr Norford had said that on the night before the offence, he had had an argument with his partner and she had hit him. There was another argument the following evening when he claimed that his partner had hit him again and that he had retaliated.

	“I got hold of her and gave her a good kicking – I smacked her, pushed her to the ground and kicked her.  It all came out in Court.”

	Mr Norford acknowledging that this had taken place in front of the children, he denied that he had wounded his partner’s eleven year old son, allegedly by striking him with a belt.  Mr Norford had said that there were bruises on the boy’s face and shoulders as a result of him having recently fallen down stairs and Mr Norford had been unable to convince the Court of his innocence.

In respect of the allegations of CD, Mr Norford had absolutely denied any impropriety with CD.  Dr Earnshaw had asked Mr Norford why he had thought that CD would have made up allegations if they were untrue.  Dr Earnshaw recorded the following in her report:-

“Mr Norford had said that CD was an average pupil, not disturbed nor particularly sexually knowing, they had had a reasonably good relationship.  Mr Norford felt that the relationship had deteriorated when he CD from the football team and the only explanations he could find for the allegation was that this had upset CD.  However, he could not explain why CD should have complained of sexual abuse rather than a physical assault or unfair treatment.”

21.	In respect of the allegations of CW, they were again denied by Mr Norford.  Mr Norford then gave Dr Earnshaw his account of his relationship with CW both at school and during a six day school trip.  At paragraph 43 of her report, Dr Earnshaw stated as follows:-

	“My own view is that there is no solid corroboration of CW’s allegations and there do appear to be a number of indicators (the statements of Sheila Cardin and Carol Ann Duffy; the essay written by CW himself, that they could be untrue.  In addition, according to the statement of Sheila Cardin, CW had a track record for telling lies, as well as for disruptive behaviour.  It is clear that this constellation of doubtful features convinced the Court that Mr Norford was not guilty of sexually abusing CW.  My view would be that the abuse is unproven because of the contra-indicators.  At the same time, however, there is a need for an explanation as to why the child should have alleged abuse in the absence of any reward for doing so.”

22.	Dr Earnshaw thought that it might be significant that the circumstances in which CW made the allegations to his father was immediately after a home visit to the family on Christmas Day by Mr Norford, to apparently discuss CW’s difficult behaviour.  Dr Earnshaw’s view was that the visit may well have been seen as intrusive and unwanted, both by CW and his family especially on Christmas Day.  Mr Norford had said that he had given CW a “sort of hug” and it was Dr Earnshaw’s belief that this behaviour might also have been viewed as intrusive and unwanted and it could have triggered the idea of an allegation of sexual abuse.

23.	In carrying out her risk assessment, Dr Earnshaw mentioned a reference in the report from Gillian Sebright that Mr Norford had been subject to a police investigation in 1992 regarding an allegation that he had struck a child at a school in Small Heath, Birmingham with his hand and with a belt.  Dr Earnshaw said that she had asked Mr Norford about this allegation; he maintained that there had never been such a police allegation, and that he had never worked at a school in Small Heath in the 1990s.  In the circumstances, Dr Earnshaw felt that she could not comment further on this matter.

24.	In looking at the question of risk, Dr Earnshaw stated at paragraph 64 of her report that Mr Norford had provided her with some quite persuasive evidence that the alleged assaults against CW had not taken place.  She went on:-

	“However, he was not able to provide such compelling evidence to refute the allegations of CD, nor to give me a convincing reason why CD should have made – and held to – a false allegation.”

	Dr Earnshaw considered that although unproven, on the balance of probabilities there was some inappropriate behaviour towards CD on the part of Mr Norford.

25.	It was recorded by Dr Earnshaw at paragraph 65 of her report that she felt unable to clear Mr Norford’s name:-
	
	“… because the coincidence of two sets of similar allegations from two 10 year-old male pupils was too strong to discount.”

	She went on to state:-

	“Whilst I would view the fact that both sets of allegations came from 10 year olds as simply reflecting the age group of the children he worked with, it is difficult to see why the allegations should have been so similar, and both from boys.”

	Dr Earnshaw considered it very possible that both CD and CW might have felt singled out by Mr Norford in a way that made them feel uncomfortable and at risk from sexual abuse, even if no sexual abuse took place.

26.	There was also consideration by Dr Earnshaw of Mr Norford’s presentation and history that seemed to be supportive of this theory.

	“He is a single man who has never committed long term to an adult relationship.  He depicts himself as having a low sex drive and is living a fairly asexual life, which may be true. However, I also have the sense of his being very guarded about his sexual life and interests, and I note that many people who have committed sexual offences are in denial, and will seek to present an asexual image.”

	Mr Norford had said that he had gained his greatest emotional satisfaction from feeling he made a difference in a young person’s life.

	Dr Earnshaw considered this and stated at paragraph 67 of her report:-

	“It is fair to say that this might be true of many teachers, but in combination with the other factors, it can be an indicator of emotional identification with children, which is a risk factor for sexual abuse.”

27.	Dr Earnshaw concluded her views by saying at paragraph 68 of her report as follows:-

	“In my view it is possible that Mr Norford has not sexually abused either complainant.  However there must be a reason for their complaints and I tend to think that they felt at risk with him.  This cannot have been helped by Mr Norford’s idiosyncratic teaching style which often eschewed conventional professional boundaries, and may have led children to feel that he was intruding into their lives.  Because of these features, I think there are too many risks present for me to be able to support Mr Norford’s return to the teaching profession.  I therefore believe that his name should be added to List 99.”

28.	On 10 December 2006, a letter was sent to Mr Norford on behalf of the Secretary of State having considered the information in Mr Norford’s case.  The letter indicated that the information had been further examined by Sir Roger Singleton, supported by his panel of experts, who was providing advice to the Secretary of State.  The letter went on:-

	“Taking into account that information, the considerations of those officials and the advice of Sir Roger, the Secretary of State had decided that he should bar you, on the grounds of your unsuitability to work with children, from employment to which section 142 of the Education Act 2002 applies.”

	The letter went on to indicate the matters which had been taken into account, including giving consideration to the report prepared by Ms Sebright.  In relation to this report, the letter of 10 December 2006 stated as follows:-

	“Although the report also contained allegations that you were investigated by the police in 1992 for hitting a pupil with a belt and that there had been anomalies on a Criminal Records Bureau application form that you had completed, these two allegations have not been taken into account for the purposes of this consideration.  However, Ms Sebright’s opinion that you presented a risk to young children and especially young boys has been taken into account.”

29.	The letter also noted that the Secretary of State had taken into account two supportive testimonials from Mr Merchant and Mr Hammond as well as Miss Byfield’s report about Mr Norford’s employment with the National Black Boys Can Association and the fact that there had been no complaints from either adults or children in the four years that Mr Norford had worked for the Association.

30.	On 2 March 2007 Mr Norford appealed to this Tribunal.

31.	The Respondent provided a witness statement from Ms Andrea Kleefstra dated 2 July 2007.  Ms Kleefstra also gave oral evidence to the Tribunal.  She stated that she was the Junior Casework Officer in the Children Safeguarding Operations Unit at the Department for Education and Skills.  The decision to bar the Appellant from carrying out works to which Section 142 of the Education Act 2002 applied had been made by the Secretary of State following Denise Hunter’s (a fellow caseworker) recommendation through the Senior Case Work Manager at the time, Julian Dickinson, and following consideration by the Panel.  As Ms Hunter and Mr Dickinson no longer worked for the Children Safeguarding Operations Unit, Ms Kleefstra was giving evidence.  Ms Kleefstra’s witness statement set out the background to the allegations against the Appellant and the investigation carried out by the Secretary of State, as well as the representations made by the Appellant and testimonials that had been lodged on his behalf.

32.	In giving oral evidence, Ms Kleefstra stated that the Appellant’s conviction in 1984 for assaulting his partner and wounding her eleven year old child was a strong piece of evidence.  It was a violent offence against his partner and it had taken place in the presence of two children.  There had been serious violence against the eleven year old child.  The Secretary of State could not go behind the facts of the conviction and that conviction had not been challenged.

33.	Ms Kleefstra went on to say that the Secretary of State had considered it relevant that CD had made a strong witness statement ten years after the event.  It was a convincing witness statement and the witness had been prepared to attend Court in 2003.  The Secretary of State was satisfied that the evidence of CD was relatively strong.

34.	The allegations by CW had been of a similar nature.  It was accepted by the Secretary of State that the Appellant had been found not guilty of these allegations, but there remained concerns about the Appellant’s behaviour.  There had been allegations of an indecent assault and were concerns about the Appellant having paid CW a visit at home on Christmas Day where there had been physical contact.  The visit had been without the school’s approval.

35.	Ms Sebright’s report, although made on the basis of her notes and recollection, was written by someone working in child protection and Ms Sebright had given a strong opinion that the Appellant presented a risk to children.

36.	The Secretary of State had given significant weight to Dr Earnshaw’s assessment.  She was a senior clinical therapist and a specialist in child sex abuse.  The Secretary of State had commissioned a full assessment.  Dr Earnshaw had concluded that the Appellant presented a risk.  The Appellant had chosen not to follow proper boundaries and procedures.  He had not followed the guidelines of the head teacher at ST.  This brought into question his willingness to adhere to boundaries in the future.

37.	Dr Earnshaw also gave oral evidence. She said that she had taken account of the statement of CD in 1991 and given that considerable weight.  It was an allegation he had made aged ten.  He was not a troublesome or difficult child.  He was also prepared to make a further statement as an adult.  It was the case that boys made less allegations of this type than girls.  As far as CW was concerned, he was another ten year old boy, but that was the age that the Appellant was teaching at the time.  The Appellant had breached good practice by visiting CW on Christmas Day and had touched CW.  There was no sense of boundaries around the visit.  Dr Earnshaw stated that she could not find a satisfactory explanation for CW’s allegations and on the balance of probabilities, considered that the Appellant was a risk to children.  In preparing her report, she had relied upon her notes of her interviews with the Appellant.

	The Appellant’s profile was of someone who might abuse, there was an absence of a long term cohabiting relationship, there was also strong identification with children and the emotional satisfaction that the Appellant derived from this, although Dr Earnshaw accepted that many teachers had this quality.  There was some abusive intent; this increased the risk, coupled with the tendency for the Appellant to breach boundaries.  He had been given boundaries at YT primary school, but had reverted to his previous practice.

38.	On being cross-examined, Dr Earnshaw said that the Lucy Faithful Foundation had a system for pruning files and had pruned her notes from the Appellant’s file. The Birmingham case had not been discussed in as much detail as Dr Earnshaw would have wished.  She would have liked to have seen the Court transcript, but it was expensive and took a long time, but nevertheless she wished she had pursued it.

	Dr Earnshaw was asked about the contents of paragraph 66 of her report in which she had said that in her view there was a motive when children complained of sexual abuse.  She acknowledged that sometimes when a pupil was unhappy with a teacher, they looked at ways at getting back at the teacher, and although that was more common with adolescents, it was not something that Dr Earnshaw discounted.

39.	Dr Earnshaw was also asked questions by the Tribunal Panel. She was asked about the contents of paragraph 16 of her report where she indicated that she had asked the Appellant whether he had suffered any sexual abuse as a child himself, or whether he had been exposed to inappropriate behaviour or materials by an adult, to which she said the Appellant had replied rather sharply that he found the question offensive.  Dr Earnshaw said that she always asked if a person had been abused as a child, although there was no special reason in this case for thinking that this might have been the case.  She considered that what he had said about his own family was positive. Dr Earnshaw acknowledged that a more disturbed background would be more common in abuse cases; people who abused did not always fit that profile.

40.	Dr Earnshaw went on to tell the Panel that there were a range of different risk assessment tools available. She made reference to Dr Thornton’s risk matrix 2000 in which there were static risk factors connected with the age of the individual, previous convictions, male/female, contact/no contact; and then a range of dynamic factors including attitudes and behaviours.  Dr Earnshaw said that she had not applied it in this case but she had a lot of experience of looking at risk indicators.  If it had been used, then she considered that the Appellant would have come out at low risk.  Though when looking at work in children, low risk could still be too much risk.  The Appellant’s case was not clear cut, but there was too much risk.  Dr Earnshaw said that she had not spoken to either CD or CW as she was not carrying out an investigation.  She had had a conversation with her manager regarding the content of her report which would not have been dispatched without it having been seen by her manager.  

41.	The Appellant had provided a witness statement dated 7 July 2007 and also gave oral evidence.  He stated that he regarded Dr Earnshaw’s report as very biased - her findings relying heavily on the report of Ms Sebright.  The report of Ms Sebright had contained misleading evidence. As far as CD was concerned, he was unable to give a precise reason as to why CD had made his original allegation.  The Appellant stating at paragraph 8 of his witness statement as follows:-

	“Maybe it was due to the fact that he was replaced in the school’s football team by a girl or he felt that more time was given to more able children in the class.  I cannot say!”

42.	In his oral evidence, the Appellant stated that he had not been given an opportunity to comment on Ms Sebright’s report and that she was someone he had never met.
	
43.     	The Appellant referred to the visit to CW on Christmas Day said that he had introduced circle time in his class. One of the purposes of circle time was for pupils to be frank and honest and to expect the same from their teachers.  The Appellant said that during a particular circle time he had said he would be visiting pupils on Christmas Day.  He had visited two pupils on Christmas Day, one girl and CW.  The head teacher had been off sick at the time and he had discussed the matter with a teacher colleague and the deputy head as to why he was making visits to certain pupils.  

44.	As far as the 1991 allegation was concerned, he had been suspended for three and half months while an investigation had taken place and been told not to contact staff and pupils.   He had returned to school and remained at that school until the following Easter and had the child concerned working alongside him.  He had been told by the head teacher and chair of governors that he needed to follow guidelines, which were that he should not be with a pupil in a classroom on their own and if he was going out of school to meet parents, he was to inform the deputy head, all of which the Appellant said he had complied with.

45.	When cross-examined, the Appellant said that he considered that Dr Earnshaw’s decision on him was based on biased information with which she had been supplied by the Respondent.  She worked for an organisation that dealt with people who had been abused.

	The Appellant was asked about paragraph 44 of Dr Earnshaw’s report.  He accepted that the visit to CW on Christmas Day had not been sanctioned by the head teacher.  Matters such as visiting parents were in any event dealt with by the deputy head.  The Appellant’s visit had been mentioned, but not specifically sanctioned.  The Appellant said that he had let colleagues know what he was doing.

46.	The Appellant was asked a number of questions by the Tribunal Panel.  In relation to CD, the Appellant stated that CD had been replaced in the school football team by a girl and that had not gone down very well. A certain amount of teasing had gone on.  The Appellant said that he was unable to make a judgement why after twelve years CD would stick to his statement.  He was unable to give a reason why CW made the allegations that he had made.  He accepted that it was very unusual to make a visit on Christmas Day.  He first met CW’s father outside school because the teacher had said that CW’s father had threatened her.  CW’s father was Afro-Caribbean and a large man. The Appellant said that he had a rapport with him because he knew where CW’s parents were coming from.  If CW’s father had thought that the Appellant was abusing his child, then the Appellant thought that he would have killed him.  The allegations from CW had been proven in Court not to be true.

47.	The Appellant accepted that with hindsight, it would have been better to have someone with him when he visited CW and to have informed CW’s parents in advance that he proposed to visit.  In future, he would still attempt to reach out to children, but would do it differently.

The Law

48.	Section 142(1)(a) of the Education Act 2002 provides that the Secretary of State may direct that a person may not carry out work to which Section 142 applies.  Section 142 applies to the provision of education at school and elsewhere.

49.	Section 142(4) of the 2002 Act provides that a direction may be given in respect of a person only on the specified grounds.  These are:-

	(a).	on the grounds that the person is included on the POCA list.
	(b).	on the grounds that the person is unsuitable to work with children.
	(c).	on grounds relating to the person’s misconduct.
	(d).	on grounds relating to the person’s health; or
	(e).	on grounds relating to the person’s professional incompetence.

	In this case, the Respondent relies on Section 142(4)(b) - in other words, that the Appellant is unsuitable to work with children. 
	
50.	Section 144(1)(a) provides that a person in respect of whom a direction has been given under Section 142 may appeal to the Tribunal against the decision to give that direction.

51.	Regulation 12(1) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 also provides that an appeal to the Tribunal may be brought by a person in respect of whom a direction has been given under Section 142 of the Act against such a direction.  By Regulation 12(2), no appeal may be brought on the ground of information or evidence referred to in Regulation 9(2) unless that information or evidence has first been brought to the attention of the Secretary of State under Regulation 9.

52.	Regulation 13(2) provides that the Tribunal shall not, in exercising its powers under Regulation 13, consider any information relevant to the decision to give a direction which the Secretary of State did not have at the time the decision was made, or evidence of a material change of circumstance of the person concerned, occurring since the decision to give a direction was made.

53.	The Respondent has the burden of showing that her decision was appropriate.  The standard of proof to be applied is “the balance of probability” which in essence means that a Tribunal is satisfied that an event occurred if the Tribunal considers that, on the evidence, the occurrence of the event was more likely than not.

54.	The question of whether the decision was appropriate has to be viewed in the context of the purpose of restricting a person’s employment.  In Mason – v- Secretary of State (2001) 0078, it was submitted that the purpose was twofold – first, the protection of children and secondly, the maintenance of public confidence in the education system.  We endorsed this approach.

Conclusions with Reasons

55.	We have only considered the evidence which was before the Secretary of State upon which she formed her view and have gone on to consider whether her direction was appropriate.

56.	We had looked firstly at the Appellant’s conviction in 1984, which was before he had trained as a teacher, of assaulting his partner and wounding her eleven year old son.  The Appellant in his evidence admitted that he had struck his partner, but disputed that he had struck her son with a belt.  The Appellant was convicted and we are not in a position to go behind that conviction.  We do however take into account that this was a one-off event and was in the context of a family relationship.  There is no suggestion that anything similar involving the Appellant has happened before or since the 1984 conviction.  There was also no suggestion in terms of what is known about the allegations that there were any sexually misdemeanours on the Appellant’s part.  In terms of seriousness, we have considered that the Court’s punishment was a conditional discharge of twelve months in respect of the assault charge and a fine of £200, and a bind over for twelve months in respect of the wounding.

57.	The allegation by CD was originally made in 1991.  At that time, the case was considered by the Crown Prosecution Service who formed the view that there was not a realistic prospect of a conviction.  The allegations made by CD being uncorroborated. CD’s original statement was not before the Secretary of State or the Tribunal.  We note that no action was taken by the Appellant’s school or by the local education authority in respect of the Appellant as a result of the allegations made in 1991, nor were there any steps taken to place the Appellant on List 99 at that time.

58.	It is true to say that CD did make a further witness statement on 11 July 2003 regarding matters that he alleged had occurred involving the Appellant in 1991.  We consider it to be relevant, firstly that in making his statement in 2003 CD was trying to recall what had happened more than ten years previously when he was a ten year old; and secondly that he was being asked to make a further statement following approaches from the police in the aftermath of the allegations made by CW.  In his statement dated 11 July 2003, CD stated as follows:-

	“About two months ago PC Gadd from the Child Protection Unit at Rose Row Police Station came to see me about Mr Norford.  He told me that he was investigating Norford for an allegation of sexual abuse and had found my details from old records relating to the allegation I made in 1991 about Norford.”

	It is therefore clear that CD, prior to making his statement of 11 July 2003, had been made aware that the Appellant was being investigated in relation to another sexual matter.  It is possible in our view that this may have influenced the content of CD’s statement.

59.	In relation to CW, we take into account that the allegations made by him were of a similar nature to those made by CD, and involved two boys of similar ages.  We did not hear evidence from CW nor were we shown a copy of any witness statement that he may have made in relation to the prosecution that was brought against the Appellant.  We did however have the benefit of seeing statements from Carol Ann Gibson who was a teacher at ST at the relevant time and Sheila Cardin who was the school secretary at ST.  The statements were not signed, but their authenticity was not challenged and they were part of the evidence that was considered by Dr Earnshaw in preparing her report.  We were impressed with the evidence contained in the witness statements, particularly given both witnesses’ knowledge of both the Appellant, but also CW.  Carol Gibson in her statement provided a lot of information about the Appellant’s approach to teaching and his strict approach to children’s behaviour and the maintenance of the school rules.  Carol Gibson also was able to paint a picture of CW, having taught him at the school.  She described his behaviour as being “challenging” and the problems teachers faced both in relation to CW and in respect of his class generally.

	Ms Cardin in her statement also indicated that she was familiar with CW and his behaviour.  She described vividly the problems that various members of staff had had with him. She referred to CW as being someone “who lied all the time”.

60.	The Appellant was tried at Birmingham Crown Court in relation to the charges that were brought against him, following the allegations made by CW.  The Appellant was acquitted of those charges, the Appellant stated  in these proceedings that the trial Judge had said that he considered that CW had lied.  In those circumstances, we consider it unfortunate that a transcript was not made available to Dr Earnshaw, the Secretary of State, and this Tribunal.  It is possible that it might have assisted in providing some insight into the incidents involving CW.  Indeed, Dr Earnshaw when giving evidence said she would have liked to have seen a transcript, but the cost and length of time it would have taken to obtain, had meant that it was not possible.  

61.	The Appellant was also charged in 2003 in relation to CD’s allegation, but following the Appellant’s acquittal on the “CW charges”, a decision was taken not to proceed with the “CD charge”.

62.	We now turn to the report prepared by Ms Sebright dated 2 July 2005 which was considered both by Dr Earnshaw and the Secretary of State.  There was no witness statement in these proceedings from Ms Sebright and we did not hear oral evidence from her.
         
           We have a number of concerns about Ms Sebright’s report and the reliance that appears to have been placed upon it by the Respondent.  The report was produced two years after Ms Sebright had been involved in chairing strategy meetings, as part of her role as the principal officer in the Child Protection Unit at Birmingham City Council.  In preparing her report, she did not have access to the minutes of the strategy meetings, due to a major corruption of the Department’s database.  She had therefore prepared her report from her own notes which were not produced as part of the evidence in these proceedings.  As well as referring in her report to the allegations made by CW, Ms Sebright also referred to a number of other matters.  Firstly, she stated that “of most significant concern” was the discovery of his conviction in 1985 for actual bodily harm but also:-

	“… in 1992 he had been subject to a police investigation into an assault on a child in a school in Small Heath where he had hit the child with hand and a belt.”

	It now appears to be accepted by the Respondent that there is no evidence to support this assertion by Ms Sebright.  She also suggested that there were anomalies in the CRB form that the Appellant had completed.  Again there appears to be no evidence to support this claim by Ms Sebright.

63.	It is true to say that in the letter written on behalf of the Secretary of State dated 10 December 2006, it is stated that these two allegations were not been taken into account for the purposes of considering whether or not the Appellant should be placed on List 99.  However also contained in the letter was the following:-

	“… Ms Sebright’s opinion that you presented a risk to young children and especially young boys has been taken into account.”

	We take the view that in reaching that conclusion, Ms Sebright must have taken into account all the matters in her report and given that included her view that the Appellant had been accused of hitting a child in 1992 and had incorrectly completed his CRB form, then her conclusions must be considered to be flawed.

64.	Dr Earnshaw after considering the documents presented to her and interviewing the Appellant, came to the conclusion that it was possible that the Appellant had not sexually abused either complainant However Dr Earnshaw considered that there had to be a reason for the complaints, and given that the Appellant’s teaching style which was often said to have “….eschewed conventional professional boundaries”, she felt that this may have led children to feel that he was intruding into their lives, so that overall there were too many risks present for Dr Earnshaw to be able to support the Appellant’s return to the teaching profession.

65.	Dr Earnshaw was asked by the Tribunal Panel about the way in which she had come to her conclusions.  She was asked in particular about risk assessment tools.  She indicated that she was familiar with Dr Thornton’s matrix risk 2000 but it had not been used in this case, although it was possible to pick parts out of it.  If it had been used, Dr Earnshaw stated that the Appellant would have been shown to be at low risk.

66.	Dr Earnshaw’s view that the Appellant is still a risk to children appears to be based on a number of factors, including the fact that the allegations made by CD and CW were similar in nature; they were boys of around the same age; the Appellant was a person who breached boundaries, had a strong identification with children, and there was an absence in his private life of a long term relationship.

67.	As already indicated, we have concerns about the allegations made by CD in that they were not prosecuted in 1991 and were not thought to be of a sufficiently significant nature for the Appellant to be placed on List 99 at that point.  When the Appellant was charged, it was over ten years after the event and was not proceeded with after the Appellant was acquitted of the charges In relation to CW. Although the allegations may have been similar, those made by CD have never been tested in court. In respect of CW, the Appellant was acquitted, albeit on a higher standard of proof. The  written statements of Carol Ann Gibson and Sheila Cardin do in our view cast serious doubts on the truthfulness of the allegations made by CW, although we take into account that they did not give oral evidence before us. However in all the circumstances we consider that little weight should be placed on the fact that the allegations were of a similar nature. The fact that the boys were of about the same age, needs to be seen in the context, as Dr Earnshaw acknowledged, of the age of children who the Appellant was teaching. As far as boundaries were concerned, the visit by the Appellant to the home of CW was undoubtedly inappropriate, but does need to be seen in the context of the evidence of Ms Gibson and Ms Cardin, regarding the Appellant’s involvement with parents. As for having a strong relationship with children that could no doubt be said of many teachers and again the evidence from those with whom he worked suggest that the Appellant was a very committed teacher. Finally we acknowledge that in certain circumstances the absence of a long time relationship might be a relevant factor in considering risk, but it needs to be seen in the context of all the other evidence.  

	68.  Therefore having considered all the evidence that was before the Secretary of State including the Appellant’s denials and explanations and the testimonials which were presented to the Secretary of State, we do not consider that the direction to place the Appellant on List 99 was a proportionate one.  In our view, the Appellant is suitable to work with children and we have therefore decided to allow the Appeal.

Order

Appeal Allowed. We direct the Secretary of State to remove the Appellant’s name from the list maintained under section 142 Education Act 2002. (“List 99”).

Mr Stewart Hunter 
Ms Elenor Fowler
Mr Graham Harper

Dated the  6th day of February 2009