IN THE FIRST-TIER TRIBUNAL
HEALTH EDUCATION AND SOCIAL CARE CHAMBER
(Care Standards)
[2011] 1874.PC

Between:
                                                    KAREN CLARKE                                    Applicant

and 

                                              SECRETARY OF STATE                          Respondent

Before:

	Mr A Lindqvist
	Mrs Linda Elliot	
Mr A Wilson

Heard at Birmingham on the 11th and 12th July 2011

The applicant appeared in person.
The respondent was represented by Mr J Auburn, of Counsel (instructed by the Treasury Solicitor)

DECISION

1.  The applicant, Karen Clarke, applies under section 4A of the Protection of Children Act 1999, for an order directing the removal of her name from the list of individuals considered unsuitable to work with children, kept by the respondent under section 1 of the Act.

2.  It would follow from the removal of her name from that list, that it would also be removed from “List 99”, which comprises those individuals who are subject to a direction now under section 142 of the Education Act 2002, but in October 2000 under reg. 9(1)(b) of the Education (Restriction of Employment) Regulations 2000.  

3.  Section 4B(1) of the 1999 Act provides that such an application may be made only with the leave of the Tribunal. Section 4B(4) provides that leave is to be granted (in the applicant’s circumstances) only if her name has been in the list for a continuous period of at least ten years and she has made no other such application in that period. Section 4B(5) provides that leave shall not be granted unless the Tribunal considers that the applicant’s circumstances have changed since her inclusion in the list and that the change is such that leave should be granted.

4.  It appeared to the Tribunal that, although directions had been given and the application had proceeded as though leave had been granted, there had in fact been no grant of leave. The respondent did not object to the grant of leave and the Tribunal, finding that section 4B(4) was satisfied and considering that the applicant’s circumstances had changed and that such change provided the basis for an arguable case and that leave should therefore be granted, accordingly formally granted the applicant leave to make the application.

The law

5.  Mr Auburn informed the Tribunal that this was the first application to come before the Tribunal under section 4A. Accordingly there is no available guidance in previous decisions.  Section 4A is refreshingly simple in its terms –

	“If the Tribunal is satisfied that the individual is no longer unsuitable to work with children it shall direct his removal from the list; otherwise it shall dismiss the application”

Mr Auburn had helpfully prepared a written submission on the burden of proof, suggesting that it rested on the applicant to show that she was no longer unsuitable. The applicant did not suggest otherwise and it seemed to the Tribunal that that followed from the wording of the section.

History of the application

6.  The applicant went to work at Uplands, a residential home near Bromsgrove, for difficult, disturbed and vulnerable children, on the 31st March 1997. Her work there lasted only about five months; she was suspended on the 29th September 1997 while investigation was carried out into incidents in which she was alleged to have been involved. The investigation took longer than expected and there were other delays; a disciplinary hearing eventually took place on the 13th May 1999, but before that, on the 1st March 1999, the applicant had written to end her employment at Uplands, and she did not attend the disciplinary hearing.

7.  The following facts were found at the disciplinary hearing,

	i)  that the applicant assisted a 15-year-old girl (hereinafter referred to as  
“ Child B”) to abscond from Uplands and transported her into Birmingham on the 31st  August 1997,

	ii)  that the applicant's relationship with “Child B”, a young woman in care, was unprofessional and not befitting for a person who is given the responsibility for the care and welfare of vulnerable young people,

	iii)  that the applicant consistently contravened unit policies in favour of young people and disregarded instructions from Senior Managers,

	iv)  that the applicant attempted to promote inappropriate relationships between young women in care and male members of staff, and

	v)  that the applicant visited  “Child B” in her bedroom frequently late at night, without any reason, explanation or knowledge of other staff.

8.  As a result of those findings, the applicant's name was included on the Department of Health’s Consulting Index on the 29th February 2000. Later in that year, the applicant was included on the Protection of Children Act list and, as a consequence, on List 99.

9.  In October 2004 the applicant wrote to the Secretary of State asking that her name be removed from the Criminal Records Bureau list. Her letter seems to have been treated as an appeal, and later as an application for leave to appeal, against the original decision to include her name in the Consultancy Index and later in the Protection of Children Act list. The applicant did not pursue the matter appropriately or expeditiously, and the application for leave or appeal was struck out by the President’s order of the 6th December 2004.

10.  On the 9 February 2011, the applicant exercised her right under section 4A of the Protection of Children Act to apply to have her name removed from the list kept under that Act, and hence from List 99 also.

11.  Tribunal Judge Hillier gave directions on the 11th April 2011 and supplementary directions on the 4th May and the 6th June. The various preparatory steps having been completed, the application was heard at Birmingham on the 11th and 12th July 2011.

Background

12.  The reference in the section 4B(5) to a change in the applicant's circumstances suggests a need to examine the earlier circumstances which constitute the basis of the change.  However, it is clearly not the Tribunal's task to revisit in detail the ground covered by the disciplinary hearing in May 1999.

13.  The applicant was born on the 29th February 1972.  She completed her education in the late 1980s, and in the early 1990s had brushes with the law, which because of their age and cessation in 1993 the Tribunal regarded as insignificant in relation to the matters it had to consider.

14.  After some typical young person's jobs as a cinema usherette and as a barmaid, the applicant became a voluntary youth worker and part-time care assistant.  In 1993, she worked for Mencap, and then as a house tutor at Sense Midlands in a home for the deaf, the blind and those suffering from the developmental effects of rubella.

15.  In March 1997 when she went to Uplands, the applicant was 25 years old with no more than three years experience of work with young persons.  That experience, however, did not extend to work with vulnerable, challenging and difficult teenagers, such as the applicant found at Uplands.  

16.  The applicant told the Tribunal that not only was that particular sort of work new to her, but she said she had received no induction, no ongoing supervision or assessment and little, if any, guidance. The total absence amongst the Tribunal papers of any document indicating that anything of that sort had ever taken place, suggested to the Tribunal that there was substance in the applicant's complaint.

17.  The Tribunal also felt that Uplands at the time, did not enjoy the firmness of control appropriate to its function.  There was evidence of a culture of levity, of chatter about relationships between staff members and of rules repeatedly broken. Although the findings against the applicant included findings of disregarding instructions, memos carrying instructions, minutes of staff meetings and messages in the Communication Book, no such document appeared in the contemporaneous papers before the Tribunal.

18.  With her lack of experience of work such as that of Uplands, the absence of any firm boundaries and little, if any, guidance, it would, no doubt, have been difficult for the applicant to set appropriate boundaries in relation to her own conduct. An example may be afforded by allegations relating to a different child, who, in the applicant's presence and clearly with her connivance, used a staff mobile phone to convey suggestive messages to a male member of staff.

19.  The most serious matter, again involving “Child B”  is that the applicant assisted her to abscond from Uplands on the evening of the 31st August 1997.  In relation to this allegation, the disciplinary hearing, not surprisingly as the applicant did not attend, made findings in accordance with the statements before it, notably that of  “Child B” ' herself.

20.  The circumstances are not wholly clear to the Tribunal, in particular it is not clear that the applicant transported “Child B” into Birmingham.  The applicant told the Tribunal that “Child B” faced some threat, evidently of abuse, from within Uplands, and that is why she helped her to abscond. It seems likely that “Child B” had transport arranged, possibly provided by the applicant, possibly not; at the very least, the applicant turned a blind eye by arrangement with “Child B” while she made her escape. It is reasonably clear that “Child B’s” escape was highly likely to expose her to a very real danger of the sort of abuse that she had suffered in the past.  The applicant did very little about the alleged threat to “Child B”, she said that she did not report it to any superior at Uplands nor to any outside professional agency.  She did, she said, report it to someone outside Uplands, but would not give any further information.

Background – the Tribunal’s findings

21.  The culture of levity and lack of boundaries at Uplands presented the applicant with circumstances which she did not have the experience to deal with.  Little assistance was provided by way of induction, supervision or training, including ' on the job ' training or monitoring; basically, she was ' left to get on with it '. There is no convincing evidence of any warning to the applicant that she was contravening instructions or policies or of any constructive suggestion as to how she might alter her ways.

22.  That, in the Tribunal's view, provides significant (though not total) exculpation in relation to the inappropriate relationships and alleged contravention of unit policies and instructions. It seems to the Tribunal that such behaviour was quite widespread at Uplands and that the applicant has some justification in feeling singled out for such accusations. But that is not the case in relation to the complicity in “Child B’s”  absconding.  Making all possible allowance for the applicant's inexperience and the lax culture of Uplands at the time, it should have been obvious to the applicant that her actions were a) illegal, b) very seriously detrimental to discipline, and c) very likely to put “Child B” in danger of further abuse.

23.  It does not greatly assist the applicant that, fortunately, “Child B” appears to have been recovered without further harm, and it is fair to observe that had “Child B” met with further misfortune, a more detailed enquiry might have focussed recollection of and recording of the circumstances of her absconding. But there was, in the Tribunal's view, no escaping the conclusion that the applicant’s complicity in “Child B’s” absconding was a gross error of judgement, for which the circumstances afford little by way of excuse.

Change of circumstances

24.  When she left Uplands, the applicant had a son, not quite one year old. She re- trained in accountancy and worked for a number of years in roles related to book- keeping.  When her son was about seven years old, the applicant gave birth to a daughter.  Eventually the demands of caring for her children conflicted with the regular hours of book-keeping work, and the applicant returned to caring work, but caring for the elderly, early in 2011.

25.  The applicant's current employer has provided an impressive character reference.  The applicant made a full disclosure of her past, in particular of the events at Uplands and clearly made a good impression at interview. Her new employer felt that the applicant deserved a new start, and in the ensuing months has found that feeling to have been fully justified.  She says that the applicant is respected and liked by both colleagues and residents and her work is of a high quality.

26.  The applicant told the Tribunal that she has no wish to return to work with children, but she is hampered in her role as a parent by her inclusion on the PoCA list and on List 99. Her daughter is a very keen gymnast -- a member of a team which puts on gymnastic displays.  Naturally, parents are involved in the organisation and recently the applicant has been invited to join the organising committee.  It is all, of course, voluntary work, but the applicant is currently unable to make much of a contribution to it.

27.  The applicant's case is that she should now be removed from the lists because, in the 14 years or so which have elapsed since she was at Uplands, she has been bringing up her two children and has gained in maturity and understanding.  She would not repeat the mistakes she made at Uplands.

28.  The Tribunal had to keep in mind the test it had to apply.  It had to be satisfied that the applicant was no longer unsuitable to work with children.  The civil standard of proof applies; the Tribunal must be satisfied on the balance of probability that the applicant is no longer unsuitable to work with children.  That is not the same thing as being satisfied that the applicant was more likely than not to avoid future mistakes of the same kind; a relatively small risk of a very serious mistake might well indicate unsuitability.

29.  The Tribunal declined to be drawn into attempting quantification in percentage terms of probability of future error or, in any terms, of the gravity of possible mistakes. Unfortunately a Tribunal cannot give a qualified answer to the question of unsuitability or impose conditions; it would have had little difficulty in concluding that the applicant clearly ought to be allowed to help to organise her daughter's gymnastic activities, as she wishes to do.  The test to be applied is simply expressed as one of continuing unsuitability on the balance of probability.  To apply it is not so simple a matter.

30.  The Tribunal was assisted by the evidence of Mr John Shields, a Team Leader in the Children's Safeguarding Operations Division at the Department for Education. In his witness statement of the 20th June 2011, Mr Shields considered the findings of the disciplinary hearing and suggested that it was not clear that the applicant would act differently today.  But in his final paragraph, he said that neither he nor the Department had reached a settled view on the application and that it might be possible to do so only after hearing the applicant's evidence.

31.  Without objection on anybody's part, Mr Shields was in the Tribunal room while the applicant gave her evidence.  Having heard it and taken time for reflection, Mr Shields expressed the view that it was a finely balanced decision, but he would be swayed by the applicant's lack of insight and limited empathy to the view that her name should not be removed from the lists.

32.  Mr Shields placed some reliance on the applicant's persistence in promoting inappropriate relationships and contravening policies despite warnings.  The Tribunal was much less confident than Mr Shields that any such warnings were in fact given.

33.  Like Mr Shields, and for much the same reasons, the Tribunal considered this to be a finely balanced case.  Mr Shields’s approach is that of a member of a children's safeguarding team, and, presumably, his prime concern is the safety of children.  That, of course, must be the cornerstone of any decision by the Tribunal. However, the question that the Tribunal has to answer is not framed in that way; it asks whether the Tribunal is satisfied that the applicant is no longer unsuitable to work with children.

34.  The Tribunal was particularly impressed by two answers given by the applicant to the Tribunal at the very end of her submissions.  She was asked how bringing up her 15-year-old son had helped her to appreciate and avoid the type of mistake she had made at Uplands, her son (who provided an impressive character reference for his mother) clearly not having any problems like those of “Child B”.  The applicant's answer was that with regard to her son, she had had to deal with problems such as peer pressure and self image which apply in varying measure to all children and that bringing him up had greatly increased her understanding.  She tended much more to listen to advice and to the views of others before making a decision.

35.  Another question put to her was how the passing of 10 years or so had affected her.  (Mr Auburn had pointed out that age did not necessarily bring maturity). The applicant's answer was that she had continued to develop intellectually and had a much better understanding of how she would be viewed as an adult.  That involved, amongst other things, setting boundaries in friendships and relationships in accordance with her personal values and an understanding of how such things can be misconstrued and so need to be handled with care and consideration.

36.  Having heard those two answers, the Tribunal parted company with Mr Shields.  While appreciating his reservations, the Tribunal was swayed in the other direction -- towards the conclusion that the applicant had developed insight and empathy so that there was much truth in her assertion that she was a different person from the 25-year-old Karen Clarke. The Tribunal had no doubt that the level of insight and understanding the applicant now possesses is a) a far greater than she had at the age of 25, and b) sufficient to enable her not to repeat the mistakes made at that age.

37.  For those reasons, the Tribunal unanimously finds that the applicant is no longer unsuitable to work with children and directs that her name be removed from the list kept by the Secretary of State under section 1 of the Protection of Children Act.  It follows automatically that the applicant's name is also to be removed from List 99.

38.  On the 11th April 2011 Tribunal Judge Hillier ordered that there be a Restricted Reporting Order under rule 14(1)(b) of the Tribunal Procedure (First-Tier Tribunal) Rules 2006 prohibiting 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 referred to in these proceedings. The Tribunal directs that that order shall continue.

Andrew Lindqvist
Linda Elliot
Andrew Wilson

25 July 2011