Secretary of State for Health v C [2003] EWCA Civ 10

Social worker – abuse – unsuitable to work with children – Protection of Children Act 1999

C was an unqualified social worker who had worked at a local authority community home from 1981. In 1994 one of the former children at the home, S, made a complaint that she had been raped by C on a number of occasions whilst she was in C’s care. Further allegations then emerged concerning alleged physical abuse by C of his step-children. Following a disciplinary hearing, C was summarily dismissed by the local authority. His claim for unfair dismissal was rejected. Following C’s dismissal, the local authority notified the Secretary of State who decided to place C on the Consultancy Service Index. An application by C for judicial review of the listing was dismissed by the Court of Appeal. The Secretary of State then transferred C’s name on to the Index of persons considered unsuitable to work with children, pursuant to powers under s1 Protection of Children Act 1999.

C exercised his right to appeal to the Protection of Children Act Tribunal. Neither party adduced any oral evidence at the appeal hearing. The Secretary of State relied on written statements by S and transcripts of video recorded interviews with C’s step-children. The Secretary of State declined to call S, who was now an adult, to give oral evidence because he was in possession of a psychiatric report which indicated that it would not be in her interests to do so. C declined to give oral evidence, but his reasons for doing so were not specified. The Tribunal allowed C’s appeal on the ground that the Secretary of State had failed to demonstrate on the balance of probabilities that C had sexually abused S and/or that C was guilty of misconduct that harmed children or placed children at risk of harm. The Secretary of State’s appeal to the High Court was dismissed on the basis that the Tribunal’s decision disclosed no error of law.

The case was successfully appealed to the Court of Appeal.  The Court held that while the Secretary of State’s failure to call S was sufficiently explained by the psychiatric report in his possession, the failure of C or his witnesses to attend before the Tribunal, without giving any reason for that non-attendance, was a highly material circumstance. The Tribunal ought to have sought an explanation for C’s failure and, in the absence of any such explanation, ought to have gone on to consider whether and if so what adverse inference was to be drawn from that failure. Accordingly the Tribunal had erred in law. The matter was remitted to be re-heard by a differently constituted tribunal.

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