Lesley Ann Thompson		
									Appellant
V

Secretary of State for Children Schools and Families
          Respondent

[2010] 1723.PT

DECISION

Panel   Tribunal Judge Nancy Hillier
	   Mrs Margaret Diamond (Specialist member)
	   Mr David Braybrook (Specialist member)

Hearing held in Darlington on 10th August 2010. The parties did not attend.

APPEAL

1. This appeal is brought under regulation 12 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (‘the 2003 Regulations’) against a direction made under section 142(4)(b) of the Education Act 2002  (the 2002 Act) on 6th October 2009 on the basis that the Appellant is unsuitable to work with children. 

BACKGROUND

2. The Respondent began investigations into the Appellant’s conduct following reports in the press of criminal proceedings relating to common assault charges made against her involving children in her care over a period of time in 2007.

3. The details of the circumstances of the offences are as follows:

a)	Offence 1 – Smacked several children, aged 15 months to five years old, on their hands, bottoms and legs, causing reddening to the skin;
b)	Offence 2 – Smacked a two year old child on the back of his hands causing reddening to the skin;
c)	Offence 3 – Shouted at and smacked a four year old boy when he accidentally stood on the Appellant’s foot; and 
d)	Offence 4 - Squeezed the cheeks of a ten month old girl forcing her mouth open and then forced food into her mouth.

4. The Appellant operated a nursery with her husband from their family home. Following her guilty pleas in relation to all four offences she was suspended from child minding activities by Ofsted The nursery was closed by the Appellant on 19 January 2008.

5. On 6 October 2009, the Respondent informed the Appellant by letter that a decision had been made to bar her from working with children on the grounds of unsuitability. The letter explains why the direction was made, and on what basis the Respondent came to its decision. The following matters were said to have been taken into account:

•	The representations made on behalf of the Appellant, including her character witnesses;
•	The convictions;
•	The fact that the Appellant had been a childminder of 13 years experience and should have been fully aware of appropriate behaviour with children; and
•	The fact that the Appellant had no previous cautions or convictions and had not been the subject of previous allegations.

6. The Respondent further stated that the decision that the Appellant was unsuitable to work with children was made both on the basis of protection of children and maintenance of public confidence in the education system.  The Appellant appeals against the direction by notice dated 28th January 2010.

THE ISSUES

7. There are three main issues raised by the Appellant. Firstly, that the Respondent refers to “Battery” in the decision making process whereas she pleaded guilty to “Common Assault”. The Appellant therefore asserts that the decision has been made on the basis of an offence for which she was neither tried nor pleaded guilty.

8. Secondly the Appellant alleges that the Respondent gave insufficient weight to the Probation Service Report dated 14th May 2008 and in particular the risk assessment contained therein. . Whilst the Respondent assumes that the comment of “chose to make an example” made by the Appellant in her Appeal is directed at the Respondent, in fact the comment is aimed at the sentencing magistrates. The Appellant was clearly shocked at the imposition of a suspended custodial sentence rather than solely a community based penalty. She therefore felt that the sentence was overly harsh and that this would therefore have affected the Respondents’ decision. The report was referred to in the decision letter of 6 October 2009.

9. Thirdly, the Appellant states that the Respondent has “chosen not to show any leniency based upon (her) previous good character, outstanding practice and witness testimonies”. 

EVIDENCE AND SUBMISSIONS

10. We have carefully considered the relevant admissible written evidence and the written submissions made by both parties during our deliberations.
The Respondent does not accept that the Appellant was convicted of common assault. The evidence in support of the Appellant’s assertion can be found in Also the local safeguarding children board which made the referral on 9.7.08 referred to common assault.  The charge sheet dated 3.4.08 clearly outlines the four charges of common assault contrary to s.39 of the Criminal Justice Act 1988.  Her criminal specialist solicitors, Bakers of Glossop wrote to confirm their attendance at Stockport Magistrates’ Court on 28.4.08 ‘when you pleaded guilty to four offences of common assault’.  Further, press reports on 30.4.08 recorded ‘four counts of common assault’, and the probation pre-sentence report refers to the same offence.  Finally, her friend Mrs Stead records that Mrs Thompson ‘pleaded guilty to common assault not battery as has been suggested’.  The first reference to battery appears in the Police National Computer printout of 29.5.08.  That record provides that the convictions relate to battery contrary to s.39 of the Criminal Justice Act 1988.  When asked to check the court register the Greater Manchester Police confirmed: ‘The charge wording on the court register for all offences reads “On 12.12.07 and between 1.10.07 at Stockport … assaulted male/female children by “beating”.

11. Section.39 simply states ‘Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.’

12. In criminal law therefore the term common assault covers two separate offences, namely ‘assault’ and ‘battery’.  Assault is an act whereby a person either intentionally or recklessly causes another to apprehend immediate unlawful violence (in layman’s terms the threat of violence).  Battery on the other hand is where the person applies unlawful force, again, whether intentionally or recklessly.  Unfortunately criminal practitioners also confuse the situation by referring, as here, to assault by beating.  The aggravating features include use of a weapon, the form of the attack and the vulnerability of the victim.  A very nasty threat accompanied by the waving of a weapon but where there is no direct force may be much more serious than an incident where there is a very minor application of force.  In the event that lawful chastisement of a child arises the crown must prove that the threatened or applied force was not reasonable for the purposes of lawful chastisement.

13. In this case the four counts of common assault included elements of both ‘assault’ e.g. shouting at the four year old prior to smacking him and ‘battery’ e.g. smacking several children which caused reddening and squeezing the cheeks of a ten month old girl to force her mouth open.  We are concerned that the appellant has, quite understandably, because she is not a lawyer, simply not understood that her pleas of guilt to common assault involved both elements and has focussed on the word battery.  This is perhaps unsurprising because the ISA referred to ‘four offences of battery’ on 26.6.08.  Also at paragraph 29 of their response to appeal the point is made again..

14. The Appellant is unrepresented and has not understood the legal terms involved. She has obviously become very anxious about the whole issue which is unfortunate since a simple explanation may have allayed her fears.

15. We have also paid particular attention to the Probation report and to the character references in respect of the Appellant. 

THE LAW

16. On 6 October 2009 the Respondent made a direction under section 142(4)(b) of the Education Act 2002 (EA 2002) on the basis that the Appellant is unsuitable to work with children. Such a direction does not require any finding of misconduct in relation to the Appellant and indeed is designed to be preventative.

17. Where an individual is barred on the grounds of unsuitability, section 35 of the Criminal Justice and Court Services Act 2000 (CJCA 2000) additionally operates to prevent the individual from working with children in a wider context. S.35 provides that it is an offence for a person “disqualified from working with children” to work in a “regulated position”. S 35(4)(b) of the CJCA 2000 defines a “disqualified person” as a person “subject to a direction under section 142 of the EA 2002, given on the grounds that he is unsuitable to work with children”. A “regulated position” is defined in section 36(1)(c) to include “a position whose normal duties include caring for, training, supervising or being in sole charge of children”.

18. The Appellant has appealed against the direction under regulation 12 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (‘the 2003 Regulations’).

19. Significant changes have been made to the relevant legislation. The Safeguarding Vulnerable Groups Act 2006 (‘the 2006 Act’) introduced a completely new regime for the safeguarding of children and vulnerable adults including two new barring ‘lists’: the Children’s Barred List and the Adults’ Barred List. 

20. Sections 142 of the EA 2002 and 35 of the CJCA 2000 were repealed by s. 63(2) and Schedule 10 of the 2006 Act on 12 October 2009. Transitional provisions are provided by the Safeguarding Vulnerable Groups Act 2006 (Commencement No 6, Transitional Provisions and Savings) Order 2009 Articles 5 to 7 of that Order provide for savings in relation to individuals who were still subject to the old barring regimes immediately before 12th October 2009. The decision in this case was made on 6th October 2009.

21. Since the Appellant was included in the List as at that date, and has not been referred to the ISA by SSCSF under the Order the provisions of the EA 2002 continue to have effect for the purposes of this appeal and it is therefore treated as an appeal under the old system. 

TRIBUNAL’S CONCLUSIONS WITH REASONS

22. In determining this appeal regulation 13(1) of the 2003 Regulations applies, therefore the Tribunal may only order the Respondent to vary or revoke the direction if we consider that it is not appropriate.

23. The Tribunal is in effect carrying out a review of the Respondent’s decision. The test to be applied was set out in FH v SSE [2005] 0552.PT [55]:

“Thus the Tribunal is, in this instance, confined to carrying out a review of the decision made by the Secretary of State. The Tribunal is not empowered to re-hear the case or to determine the primary facts. It is required, in effect, to decide whether the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon existed, and further to decide whether the direction was an appropriate or proportionate response in all of the circumstances known to the Secretary of State”.

24. Further guidance is given by Dyson LJ, sitting in the Administrative Court in SSE v JN [2008] EWHC 1199 [23]:

“... The Tribunal must form its own view as to whether or not, on the evidence before it, which is the same evidence as that which was before the Secretary of State, there existed sufficient grounds for the direction to be given under section 142. The Tribunal thereby decides whether the Secretary of State’s decision was reasonable”.

25. We have applied the test and the above approach to the evidence before us. We have ignored evidence which was not before the Respondent in making his decision and any change of circumstances relating to the Appellant since the direction was given. Although the Appellant may believe that this is unfair because she has provided a statement and other information not considered at the time, there is a separate process for dealing with such new evidence or change in circumstances, namely the Respondent’s power under Regulation 9 of the 2003 Regulations to review an individual’s case.. The Appellant would have to make an application for a review in order for it to take place, and the Respondent’s solicitor has provided information to her about the process.

26. In considering whether the decision of the Respondent was appropriate we also note the significant importance attached to the maintenance of public confidence that those who work with children are suitable to do so in addition to the need to protect children.
We have concluded that on October 6th 2008 there were sufficient grounds for the Secretary of state to make the direction under s142 on the basis that the Appellant was unsuitable to work with children and that the decision was a reasonable, appropriate and proportionate response for the following reasons.

27. The nomenclature given to the offences is actually irrelevant, and we do not conclude that the use of the word battery means that the Respondent has placed too much weight on the fact that force was used on each occasion. The real significance lies in the position of trust in which the Appellant had been placed in relation to these children who were all under five years old and the fact that as a course of conduct they were physically abused. The force feeding of a ten month old child is of very significant concern, especially when carried out by a highly experienced childminder. 

28. The Probation report does not in fact conclude that the Appellant was “no” risk to children. She was suspended from childminding at the time of the assessment. The risk assessment of “low” risk of serious harm at page 5 of the Probation report and low – medium risk of reoffending was on the stated basis that “Mrs Thompson is no longer allowed to continue with her childminding business therefore she will no longer be in a position whereby she presents a risk of harm to children”. The report identifies the fact that the children were under five years old and that whilst they suffered only minor injuries “they would have suffered distress”. We have concluded that the report does not support the Appellant’s view that she does not pose a risk to children. In fact it highlights some of the significant concerns about her behaviour and her emotional state and does not assess the potential risk were she to be once again entrusted with the care of children and supports the decision to make a direction.

29. We have carefully considered the supportive references made on behalf of the Appellant and weighed them in the balance. Whilst these supporters may have had every confidence in the Appellant based on her previous good character we do not conclude that they are sufficient to tip the balance against the decision to list. We agree with the Respondent’s submission that “The public rightly expect very high standards of conduct from those who look after young children.  If the Appellant, a child minder of thirteen years experience, having been convicted of four serious offences relating to assault/battery on children as young as 10 months old, was permitted to continue to be able to work with young children the public confidence in the education/child minding system would be fundamentally undermined.” 

30. The Appellant also asserts that placing her on List 99 is of no real benefit as a CRB check would reveal her past offences and she therefore will not be employed in roles where she is responsible for children. If she is not on List 99 an employer can chose to employ her to work with vulnerable young children notwithstanding her prior convictions. If however she is on the list the employer has no choice; he/she is prohibited from employing the Appellant in a post which involves working with children. The Appellant’s inclusion on List 99 therefore does provide additional safeguards to children which we conclude are proportionate even when balanced again the restrictions thereby imposed on her employment options.
31. We therefore conclude that the Secretary of State had sufficient evidence upon which to base a determination that the specified ground relied upon (unsuitable to work with children) existed in the form of the four convictions of common assault of children under five years old in the Appellant’s care. Taking into account the need to protect children and the need to maintain public confidence in the child care/education system the direction was an appropriate and proportionate response. 

DECISION

It is our unanimous decision that the Appeal be dismissed.

Nancy Hillier
Tribunal Judge
12th August 2010.