NJ v HCPC [2012] UKFTT 596 (HESC)

FTT-HESC
NJ v HCPC
[2012] UKFTT 596 (HESC) · 2012-10-03
[1]Only two members were present on the Panel. The Senior Presidents Direction on composition specifies three. The Parties were made aware of this and of the power within paragraph 15(6) of schedule 4 of the Tribunals Courts and Enforcement Act 2007 which reads “(6) Where under sub-paragraphs (1) to (4) a matter is to be decided by two or more members of a tribunal, the matter may, if the parties to the case agree, be decided in the absence of one or more (but not all) of the members chosen to decide the matter.”[2]Both Parties were given time to consider the matter and both agreed that the case should proceed.[3]We were invited to continue the prohibition on publication of material likely to identify person involved in the case to the case other than by initials and accordingly we order as follows: There shall be a Restricted Reporting Order under Rule 14(1)(b) prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the Appellant or any child named as part of these proceedings. This order is to last indefinitely.[4]On 4 th November 2010 the General Social Care Council found that the Appellant had committed misconduct and removed her name from the social care register. This appeal is against those decisions, by virtue of Section 68 of the Care Standards Act 2000 the Tribunal may confirm the decision or direct that it shall not have effect.[5]The respondents sought to uphold a number of allegations of misconduct, and the burden of proving those allegations lies upon them, the original numbering is used with reference to these allegations as it was throughout the hearing:
“2. That in 1998: (a) You were aware that an allegation was made that Adult C had behaved in a sexually inappropriate way with regards to his daughter or daughters, (b) You failed to report the allegation to the relevant authorities, (c) As a consequence of your failure to act at 2(b) above you put the children of Adult C and other children with whom adult C may come into contact at risk of harm. 3. In or around May 2006: (a) Child A disclosed to you that Adult C had sexually assaulted her: (i) Earlier that day; and (ii) On an unspecified date around Christmas 2005 during a trip to the cinema (b) You were aware of previous allegations of sexual assault made against Adult C by (ii) Adult C’s daughter or daughters in 1998 (c) You failed to report the sexual assaults at 3(a) (i) and (ii) above to the relevant authorities. 4. On or around 11 October 2007: (a) Child A disclosed to you that Adult C had sexually assaulted her (b) You did not report the sexual assault at 4(a) above to the relevant authorities for 6 days. 5. As a consequence of your failures to act at 3(c) and 4(b) above you put child A and other children with whom adult C may come into contact at risk of harm.”
[6]The Appellant had been close to Adult C’s family, in particular Adult C’s parents, but it appears that all members of the family including Adult C who was around the Appellant’s age were counted as her friends. All of the allegations stem from the interaction that the Appellant had with Adult C. Allegation 2, the 1998 allegations arise from a conversation that the Appellant had with adult C when he reported to her that he was to be divorced from this wife Adult H, and that in the course of seeking a divorce Adult H had made false allegations about him including that he was watching the children in the bath. The Appellant contends that these were not allegations, they were put to her by a manipulative person as lies that had been told, and that in any event they were said to be within court documents and had there been anything in the allegations the relevant court authorities were well able to take action.[7]Allegation 3 is that the Appellant’s daughter in May 2006 told her in detail about indecent assaults committed upon her by Adult C, and that the Appellant despite knowing of these assaults did not report his conduct, and also became aware of assaults upon Adult C’s daughters but failed to report them. The Appellant denies that she was told anything other than her daughter felt uncomfortable with Adult C, and specifically that she was told of nothing, which could be construed as an assault. She knew nothing about Adult C’s daughters.[8]Allegation 4 is that the Appellant was told of indecent assaults committed by adult C on her child in October 2007, but failed to report them for 6 days. The Appellant accepts the facts of this allegation, but contends that as a mother she was entitled to take sufficient time to consider the interests of her child and discuss the appropriate action with her and merely did so.[9]Allegation 5 crystallises the harm alleged in failing to report Adult C’s actions in May 2006 and for 6 days in October 2007.[10]Whilst we heard from a number of witnesses very little is in dispute. Adult C is serving a sentence of Imprisonment for Public Protection following a guilty plea to assaults on the Appellant’s daughter in 2006 and 2007, and upon his own children when he was living with them until 1998.[11]As regards the 1998 allegation we have only the Appellant’s evidence of what was said, there were only the two of them in a car when she was taking Adult C to a Solicitor to deal with his divorce proceedings. She made what we consider the valid point in that when she was making Police statements her attitude to Adult C had changed, he was by then known to her to be an abuser. In 1998 he was as far as she was concerned a well respected family man, a friend and was simply confiding in her lies that another had told about him. We note that in her Police statement of November 2007 she did not raise this as a significant admission by Adult C. Although she was cross examined expertly by Ms Hearnden as to a social workers responsibility, we consider that in 1998 when Adult C, who Adult H and indeed everyone in the case describes as highly manipulative, revealed someone was telling lies about him, we accept that the Appellant even as a Social Worker was entitled in these circumstances to consider that it was not a report of abuse.[12]Adult H when she gave evidence outlined the situation including what happened to her children and spoke of the Appellant’s knowledge in this way:
“ I was under the impression that she was aware of what was going on. I did not confront her [ the Appellant ] with what had happened to my daughter, she [ H’s daughter ] did not want anyone outside of her and grandparents to know, we thought it was a one off and she did not want people to blame her so we didn’t tell anyone.”
[13]We are confident that Adult H was being manipulated to an extent by Adult C in that he was deliberately giving his Solicitors false information as to how supportive the Appellant was to his Case and ruthlessly exploiting his known friendship with her to advantage in his divorce. The state of the Appellant’s knowledge filtered as it was through the Adult C, does not indicate to us that allegation 2 is made out.[14]Allegation 3 is by far the most serious allegation. Ms Hearnden points to notes made by the Appellant which are reproduced within the bundle at page 202 and 203; they appear to be a contemporaneous note of a conversation between the Appellant and her daughter in May 2006. They make explicit reference to sexual abuse and describe in detail a sexual assault upon the Appellant’s daughter. The Appellant is adamant that she did not make those notes in 2006, that her daughter told her only that she was uncomfortable with adult C. In evidence she ascribed their origin to 2007 when the Police were called and described the notes as her attempts to deal with what she had been told in 2007 about the events in 2006, and that her state of mind was such that she was reliving what happened in 2006 to see if she should have realised what happened and whether she could have protected her daughter more. In that way, the words written became a mixed account of reliving 2006 with knowledge gained in 2007. We note however, that there is a separate set of notes in the Appellant’s handwriting from 2007 relating to those matters, suggestive at least that the two disclosures were made at entirely different times.[15]We have a statement from the Appellant’s daughter; she was not called to give evidence as it was accepted by all Parties that she should not have to relive abuse from a number of years ago; she is a highly intelligent girl with 12 A* results at GCSE. We have also seen a transcript of relevant parts of a video recorded interview conducted in 2007. In that interview, she explains that she told her mother about 2006 but it is plainly ambiguous and does not establish that she told her in any detail what happened, which is the crux of the allegation. In her recent statement she is plainly supportive of her mother’s position at paragraph 9:
“So far as I recall I had only told my mother that Adult C had picked me up, sat me on his knee and that I had felt uncomfortable about that and I did not like Adult C. I did not make my mother aware at that time of Adult C’s inappropriate touching of me. At the time of the incident I was only 10 years old.”
[16]She also indicates that her mother often made notes and would read them back to check if they were correct, but has no memory of that from 2006.[17]The Appellant is a person who has spent many years working in responsible positions with children, and is plainly held in very high regard, we have seen a number of testimonials to this effect, and heard from a Solicitor with whom she used to work of her meticulous nature and her scrupulous honesty, we bear those matters very much in mind.[18]We conclude that the Appellant was told by her daughter of the sexual assault in 2006 on the day that it happened. We make that finding because of the very strong evidence that this was the position. In addition to the existence of the notes which have that outward appearance, we note in addition that the Appellant endorsed the original with following around the time she made a statement to the Police:
“Account written by [the Appellant] on either the 7.5.06, 14.5.06 or 21.5.06 after speaking to daughter [child A] at [Redacted] this is then signed by her.”
[19]This is now directly denied by her, and in evidence she explained that she was confused and wanted to ensure that Adult C was convicted. She expressly denied that she had deliberately manufactured a contemporaneous account to support her daughter’s allegation, and of course such an attempt to pervert the course of justice is likely on its own to lead to removal from the register. We have also considered the evidence of the statement that the Appellant made to the Police on 2 nd November 2007, within that very long and detailed statement which is corrected in a number of places indicating that it had been read and understood, she explains in detail that she was told of the 2006 assaults by upon her daughter at the time. In evidence the Appellant explained that the statement took over 3 hours to make, she was tired confused and the officer was putting the words in rather than her. In part we accept what the Appellant had to say about this, she would be tired, it was a lengthy and detailed statement, the officer may well have paraphrased matters to make sure they made sense in writing, but overall the Appellant is well used to court procedures as a Guardian ad Litem which was her role for a number of years, the warning upon the statement that a person who states anything wilfully false may be prosecuted, and the seriousness of the situation overall, in that she making a statement about a man who was a family friend and was likely to go to prison as a result, indicates that the Appellant would be careful to record and sign matters only if they were accurate.[20]The statement itself was made on 2 nd November 2006 around three weeks after the assault in 2007 was reported to the Appellant, and after the family had taken a weeks’ holiday. It is highly detailed and contains a convincing account of events in 2006, that the Appellant now retracts. Overall it is simply not possible to accept that Appellant’s present account is credible as to what happened in 2006, the documentation both official and that directly created by her provide evidence which is simply too strong even given her account, her good character and that of her daughter.[21]We conclude that allegation 3(a) (i) is made out, however the evidence is less strong on the visit to the cinema in 2005, in particular there is no reference to that in the notes from 2006 and we accept that it is possible that whilst the Appellant mentioned in her Police statement that she was told about that in 2006 that she may have been confused about that one point and was not told until 2007, therefore 3(a)(ii) is not made out. Adult H’s evidence which we have referred to above indicates that 3(b)(ii) is not made out, and 3 (c) is made out only to the extent of not informing the authorities of 3(a) (i). Nonetheless this is by far the most serious allegation, including as it does the certain knowledge that the Appellant had, that Adult C abused a child but she took no proper steps to ensure that children were protected from this happening again.[22]Allegation 4 relates to a delay of 6 days between being told of the 2007 matter and telling the Police. There is no dispute about the facts; that is what happened, the Appellant relies upon the need to think matters through, and indeed talk them through with her daughter. We accept this was reasonable in the circumstances, we do not suggest that this is always the case for a 6 day period, but the Appellant was in a very traumatic position, and to a limited extent she needed to ensure that she talked matters through with her daughter. We accept her account that she did not think to notify the authorities and explain that her child was not presently available for interview. We have also taken note of the type of abuser Adult C was; that is one who tended to befriend and inveigle himself into a household to assault children. Indeed, the Police were confident enough that he did not represent an immediate danger that they did not arrest him for around 3 weeks after the report to them. We therefore find that whilst allegation 4 is factually correct it does not amount to misconduct.[23]With regard to allegation 5, we find that the only risk to which children were exposed was by not reporting allegation 3(c), which in turn is limited to 3(a)(i), the 2006 report.[24]We heard submissions by the Parties on what the penalty should be in the event of a finding adverse to them, in particular Ms Readermacher invited us to consider the Appellant’s character and the grave effect removal would have, the Appellant herself told us of how the allegation had removed her livelihood; this was the job she had trained for and spent years doing. She described herself as destitute. We treat none of those matters lightly. Arguably the allegations of misconduct reheard by us now amount to one gross error, that of receiving a report of abuse upon her daughter in 2006 and failing to report the Appellant’s conduct, not necessarily to the Police for prosecution, but to the social services or the Police to ensure other children were safeguarded. The Appellant was well aware of her responsibilities in this regard, indeed she is adamant that she would never have taken it upon herself not to report such a thing. Whilst we bear in mind it is one incident, it is of such gravity that we consider that removal from the register is the inevitable penalty for such a gross error. The confidence of the public in the profession would be greatly affected if a person remained on the register in such circumstances, and the consequences of such behaviour are plainly very serious indeed. We have born in mind that the Appellant is distraught that her daughter has been assaulted, and genuinely regrets that this has happened, but we also note that she is not in a position to accept the responsibility for her actions in this matter. Looking at all of the mitigating and aggravating features we regard removal as the appropriate sanction.[25]Our conclusion then is that whilst we have found differently on some largely peripheral matters the central allegation has been made out, the penalty is appropriate and we therefore confirm the decision of the General Social Care Council to remove the Appellant from the register of Social Workers. Decision Appeal Dismissed decision of GSCC confirmed. Judge John Aitken Deputy Chamber President Health Education and Social Care Chamber 3 rd October 2012