Angella Mairs

-v-

The Secretary of State for Education and Skills

Application No.  [2004] 269.PC

Before:
Mr John Reddish (Chairman)
Ms Margaret Diamond
Mr John Williams

Hearing dates:  25th, 26th, 27th, 28th and 29th October and 1st November 2004.

Application
On 5th February 2004 the applicant appealed under section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Education and Skills to include her in the list kept under section 1 of that Act.

Representation
At the hearing Mr Philip Coppel of Counsel represented the Secretary of State and Ms Barbara Connelly of Counsel represented the applicant.

The evidence
The Tribunal heard oral evidence on behalf of the Secretary of State from Mr Bernard Monaghan, a Senior Manager with the Family Welfare Association who acts as a consultant to the social services departments of local authorities and to voluntary organisations.  He conducted an investigation into the professional conduct of the officers of the London Borough of Haringey Housing and Social Services Department involved in the case of Victoria Climbié and prepared a report of that investigation dated 15th May 2001.

The Tribunal heard oral evidence on behalf of the applicant from:
the applicant herself; and
Mr David Duncan, who now works as a self-employed children’s guardian but who, at the relevant time, was employed by the London Borough of Haringey as a Team Manager and later as the Commissioning Manager in the Borough’s Tottenham office; and
Mr Philip Peatfield, who is a self-employed consultant working in a variety of roles including that of children’s guardian and independent chairman of case conferences and who, at the relevant time, worked regularly as the independent chairman of case conferences and review meetings convened by the London Borough of Haringey, often in the Tottenham office.

The Tribunal also received written evidence on behalf of the applicant from:
Ms Penny Rutter, a Team Manager in the Housing Department of the London Borough of Haringey;
Dr Aggrey Burke, a Senior Medical Lecturer in Mental Health Sciences at St George’s Hospital and a Consultant Psychiatrist with the South West London and St George’s Mental NHS Trust; and
Ms Sonia Davy, a Reviewing Officer in the Leaving Care Team at the London Borough of Haringey.
This evidence was not challenged on behalf of the Secretary of State.

The Tribunal also read the documents submitted by the parties and comprised in 4 bundles, sub-divided into 9 sections.

On the second day of the hearing the Chairman, on the joint application of the parties, issued a summons under Regulation 16 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 directed to the Director of Social Services of the London Borough of Haringey requiring him to produce the original file (including all papers and documents contained in it) of the Duty and Investigation Team of Haringey Social Services Department relating to Victoria Climbié, being the file that was closed on 25th February 2000 by the applicant.  The Director immediately delivered that file to the Tribunal.  The Tribunal perused the original and read the copies that were made for its use.

The attention of the Tribunal was also drawn to several parts of the Report of the Victoria Climbié Inquiry by Lord Laming dated January 2003.  Copies of substantial extracts from that Report were made available to and were read by the Tribunal.  The Tribunal had access to the full Report both in printed form and on the Inquiry’s web site at www.victoria-climbie-inquiry.org.uk.

Preliminary matters
On 13th May 2004 the applicant, through her solicitors, invited the Tribunal to consider making a restricted reporting order and an order directing that members of the press and public be excluded from the hearing.  However, at a directions hearing on 21st May 2004 these invitations were not pursued and Ms Connelly informed the Tribunal at the hearing that the applicant was content that her case should be heard in public and reported without restriction.  Accordingly, the Tribunal made no orders under Regulations 18 and 19.

Facts
The material facts found by the Tribunal were as follows:

1.	The applicant was born in Montego Bay, Jamaica on 23rd April 1958.  She came to England in 1971 and was educated at a school and two Colleges of Further Education in London.

2.	In 1978 the applicant obtained a NCHEE Diploma in Childcare Practices and thereafter worked as a residential social worker for 5 years, first in a rehabilitation unit in the City of Westminster and then in a reception centre for children in the London Borough of Barnet.

3.	In July 1985 the applicant was awarded a Certificate of Qualification in Social Work and obtained employment as a field social worker with the London Borough of Lambeth.  Her allocated caseload was “mainly child care” but she also took a keen interest in clients suffering from psychiatric disorders.  In November 1988 the applicant’s then line manager commended her for “professional skill of a high order” and said that she had “coped admirably with the stress of inner city work, bringing to it a deep sense of commitment and appropriately focussed enthusiasm and energy”.

4.	In March 1989 the applicant was appointed as a Team Manager in the London Borough of Haringey.  Between 1989 and 1997 she worked in the mid-Tottenham Children and Family Generic Social Work Team, the Advice and Assessment Team and the Child Protection Investigation and Assessment Team.  From June 1997 until July 2000 she was a Team Manager in the Duty Investigation and Assessment Team (hereinafter referred to as the “DIAT”) at the North Tottenham District Office (hereinafter referred to as the “NTDO”).

5.	On 1st July 1998 Haringey Council Housing and Social Services Department issued a document entitled “Case Recording Policy”.  Under the heading “Role of managers” the following provisions were set out:
”Managers are expected to read files and develop good case recording skills in their staff.
Managers should check during supervision that case files are up to date and recorded in accordance with these practice guidelines and the Department’s case recording policy.
Managers must sign and print their names and give their job title in the file to show they endorse decisions taken.”

6.	Victoria Climbié was born near Abidjan in the Ivory Coast on 2nd November 1991. Her date of birth has also been recorded as 24th December 1991.

7.	In October 1998 Marie-Therese Kouao, who was Victoria’s great aunt, went to Abidjan and offered to take Victoria to live with her in France.  She promised to care for Victoria and to provide her with an education. Victoria's parents, Francis and Berthe Climbié, accepted her offer.

8.	Thereafter, Ms Kouao embarked upon a course of deception of the public authorities in two countries and behaved towards Victoria with almost unparalleled depravity.  On 12th January 2001 she was convicted of murdering Victoria and sentenced to life imprisonment.

9.	Victoria lived with Ms Kouao in France until 24th April 1999. She then travelled with her great aunt to England. Victoria travelled on Ms Kouao's French passport, named as her daughter, Anna.  It is not completely clear why Ms Kouao decided to leave France. For a substantial period before leaving she had been claiming benefits to which she was not entitled. The French benefits agency was trying to recover money from her.  

10.	On 26th April 1999 Ms Kouao and Victoria visited the Homeless Persons’ Unit in the London Borough of Ealing.  In the following months, Victoria became known to the Social Services Departments of the London Boroughs of Ealing, Brent, Haringey and Enfield and to two specialist child protection teams of the Metropolitan Police.  She was also admitted to two different hospitals (the Central Middlesex and the North Middlesex) for treatment for injuries which raised concerns that she was being deliberately harmed.  As the result of what Lord Laming later described as “a catalogue of administrative, managerial and professional failure by the services charged with her safety” Victoria remained unprotected and suffered terrible harm, inflicted on her by Ms Kouao and her partner, Carl Manning. The extent of the failure to protect Victoria was, said Lord Laming, “lamentable”.

11.	In April 1999 the Ealing Homeless Persons’ Unit agreed to provide Ms Kouao and Victoria with accommodation in a hostel in Harlesden and they moved in on 1st May 1999.

12.	A number of Ealing staff who saw Ms Kouao and Victoria together during May 1999 noticed that Ms Kouao was always elegantly dressed but that Victoria was very poorly turned out.

13.	In June 1999 Ms Kouao met Carl Manning. He was driving a bus boarded by her and they fell into conversation. According to Mr Manning, he gave Ms Kouao his telephone number and she called him a few days later, inviting him to visit her in Harlesden. This was the start of their relationship. It lasted until their arrest just over 8 months later.

14.	In 1999 Haringey began a “restructuring” of its children and families’ services to increase efficiency and to save money. The process of restructuring and the delays in its implementation had an adverse effect on staff morale and also upon the ability of staff to undertake their responsibilities. Team Managers (including the applicant) and Senior Practitioners were distressed, concerned and aggrieved.

15.	Before the restructuring took effect, the applicant was supervising 9 social workers in her team and 2 social workers who were responsible for unaccompanied minors, in addition to her responsibilities in respect of the Duty Team and supervision of other administrative staff in the DIAT.  This involved supervision, at any one time, of between 108 and 144 cases, possibly more.  In the early part of 1999, when Ms Carol Baptiste (the applicant’s fellow Team Manager at the NTDO) was only working part-time, the applicant and Mr Duncan had to take responsibility for the supervision of the other team when Ms Baptiste was not in the office.  This placed considerable strain on both the applicant and Mr Duncan.

16.	On 8th June 1999 Ms Kouao got a job at Northwick Park Hospital.  She asked Mrs Priscilla Cameron, an experienced childminder, to look after Victoria.  By the middle of June 1999, Victoria was spending the majority of her days with Mrs Cameron.

17.	Mrs Cameron was troubled by the way that Victoria was treated by Ms Kouao. She noticed that Ms Kouao would often speak very harshly to Victoria. Both Mrs Cameron and her son saw that Victoria would become very quiet and reserved when Ms Kouao arrived at their house to take her home.

18.	Ms Kouao's relationship with Mr Manning developed quickly.  On 6th July 1999, Victoria and Ms Kouao moved from the hostel into his studio flat in Somerset Gardens, Tottenham.  The flat was no more than a small bed-sitting room.  There was a separate bathroom and kitchen area.

19.	 On 13th July 1999 Ms Kouao went to Mrs Cameron’s house in an agitated state. She asked Mrs Cameron to take Victoria "for good" because Mr Manning was not prepared to tolerate Victoria living with him.  Mrs Cameron refused but agreed to take Victoria in for one night because "the poor child was looking so ill".

20.	Mrs Cameron and her son saw that Victoria had been injured.  She had “a burn the size of a 50 pence piece” on her face, three circular marks on her lower right jaw which looked "like injuries that had been healing for a little while", her eyes were bloodshot, her face was swollen, her fingers were oozing pus and a loose piece of skin was hanging from her right eyelid.  Mrs Cameron asked Ms Kouao who had burned and beaten Victoria.  Ms Kouao replied that all the injuries were self-inflicted.  Mrs Cameron and her daughter Avril agreed that Victoria would have to be taken to hospital.  

21.	On the following morning Ms Avril Cameron took Victoria to the Accident and Emergency Department of the Central Middlesex Hospital.  Victoria was seen and examined by Dr Beynon.  He referred the matter to Dr Ekundayo Ajayi-Obe, a paediatric registrar. In Dr Beynon’s view there was a "strong possibility" that this was a case of non-accidental injury.

22.	Dr Ajayi-Obe performed a more extensive physical examination of Victoria and discovered a large number of injuries to her body.  She formed the view that at least some of Victoria's injuries might be non-accidental; arranged for Victoria to be admitted overnight and called Brent Social Services.  The police were also informed and Victoria was placed under police protection at 5.20 p.m. on 14th July 1999. 

23.	Dr Ruby Schwartz saw Victoria as part of her evening ward round on 14th July 1999. As a result of her examination, Dr Schwartz concluded that Victoria was suffering from scabies. The next morning, after the police had withdrawn their protection, Ms Kouao removed Victoria from the hospital and Dr Schwartz wrote to Haringey Social Services saying that there was no evidence of non-accidental injury.  She expressed the view that the scars and marks on Victoria’s body were consistent with scabies infection and that there were no child protection issues.

24.	On 24th July 1999, Victoria was admitted to the North Middlesex Hospital.  Ms Kouao took her there. Her most urgent injury was a serious scald to the face, which Ms Kouao said was caused by Victoria pouring hot water over her head to try and relieve the itching caused by scabies. Victoria's burns were so serious that she was admitted to the paediatric ward where she stayed for the next 13 nights.

25.	On 24th July 1999, Dr Simone Forlee, the senior house officer who first examined Victoria, explained the position to Haringey Social Services and referred the case to the Police Child Protection Team.

26.	On 26th July 1999 Ms Kouao made an application to the London Borough of Haringey for housing.

27.	On 27th July 1999 Ms Karen Johns, an Enfield social worker based at the North Middlesex Hospital, made more detailed referral of Victoria’s case to Ms Caroline Rodgers, the Haringey Duty Officer at the time.  Ms Shanti Jacob (a Senior Practitioner and the Duty Manager) ordered a strategy meeting.

28.	The strategy meeting was held at Haringey's offices on 28th July 1999.  The meeting was chaired by Ms Rose Kozinos (an Acting Senior Practitioner) and attended by Ms Rodgers, PC Karen Jones (from the Haringey Police Child Protection Team) and Ms Johns.  Ms Kozinos was “very worried” by the case.  Eighteen recommendations were made, including that a full joint investigation be set up.  Ms Kozinos referred the case to Ms Baptiste.   Ms Baptiste later allocated the case to Ms Lisa Arthurworrey, a social worker in her team.  Ms Arthurworrey had qualified as a social worker in July 1997; had previously worked for the London Borough of Hammersmith and Fulham and had joined the London Borough of Haringey in November 1998.

29.	A number of medical staff who cared for Victoria during her stay in the North Middlesex Hospital noticed marks on her body which they considered were signs of serious, deliberate, physical harm.  They saw what appeared to be a belt buckle mark on Victoria's shoulder and marks which led them to suspect that Victoria had been deliberately burned and bitten. A full skeletal survey was undertaken and photographs were taken of Victoria, though these were never placed on her social work file.

30.	Ms Kouao and Mr Manning visited Victoria in hospital.  When Ms Kouao came into the ward, Victoria changed from being lively and vivacious to being withdrawn and timid.  The relationship between Ms Kouao and Victoria was recorded in the ward's incident log as being like that of "master and servant".  On one occasion Victoria was seen to wet herself while standing to attention in front of Ms Kouao, who was apparently telling her off. Victoria’s reaction to Mr Manning when he came to visit was similar. She was "wary of his presence" and was anxious to keep her distance from him.

31.	On 29th July 1999 the Central Middlesex Hospital faxed 20 pages of documents to Ms Rodgers giving details of Victoria’s admission on 14th July 1999 but this was not received by Ms Arthurworrey until 12th August 1999.

32.	On 2nd August 1999	Ms Arthurworrey received the file from Ms Baptiste and made notes of the work to be done.

33.	On 3rd August 1999 Ms Johns informed Ms Arthurworrey that Victoria was ready for discharge from hospital.  On the same day, Dr Mary Rossiter, a Consultant Paediatrician and Ms Isabel Quinn, a Senior Staff Nurse at the North Middlesex Hospital, informed Ms Arthurworrey of their concerns.

34.	On 4th August 1999 PC Karen Jones telephoned Ms Arthurworrey and said that she had been advised not to enter the family home because of the possibility that she might catch scabies.  Ms Arthurworrey telephoned Ms Kouao to ask her to come to her office on 5th August 1999.

35.	On 5th August 1999 Ms Arthurworrey and PC Jones interviewed Ms Kouao at the offices of Haringey Social Services and considered the statements from Victoria’s doctors.  They concluded that Ms Kouao was “smart in appearance, proud and a woman who articulated very well”.  They accepted her explanations but were uneasy about the fact that her apparently good grasp of English appeared to fail whenever she was asked specific child protection questions.

36.	Ms Arthurworrey and PC Jones visited Victoria in hospital on 6th August 1999.  After speaking briefly to her they decided it would be appropriate for her to be discharged back into Ms Kouao's care.  They could find “no evidence of crime” and “no grounds for seeking an emergency protection order”.  They agreed that any remaining social issues were a matter for the Social Services alone.

37.	Ms Kouao removed Victoria from the hospital on 6th August 1999 and took her back to Mr Manning’s flat.  

38.	On 13th August 1999 Dr Rossiter prepared a discharge summary and wrote to Ms Petra Kitchman (a Haringey Child Protection Adviser) expressing grave concerns for Victoria’s welfare.  Her fax (including the discharge summary) was received by Ms Arthurworrey but she did not read it all.  She had already concluded that the injuries to Victoria were accidental.

39.	On 16th August 1999 Ms Arthurworrey, with a French interpreter, visited Victoria in Mr Manning’s flat and found her to be smartly dressed and well cared for.  Victoria spent most of the visit playing with a doll - one of a number of toys seen.  Although Ms Arthurworrey did not talk to Victoria during the course of this visit or discuss with Ms Kouao the alleged “master servant relationship”, she formed the impression that Victoria was happy.  She noted on the file that she had observed Victoria “as being an obedient child who listened and respected her mother”.  As far as Ms Arthurworrey was concerned, the priority was to move Ms Kouao and Victoria to alternative accommodation because their current living arrangements were unsatisfactory.

40.	On 29th August 1999 Ms Kouao took Victoria to the Mission Ensemble pour Christ, a church in a hall close to Borough High Street. Victoria was dressed in clothing that covered all of her body apart from her head and hands. The Pastor noticed wounds on both.  Ms Kouao told him about Victoria's incontinence. He formed the view that Victoria was possessed by an evil spirit.

41.	On 2nd September 1999 Dr Rossiter sent a further letter to Haringey Social Services enclosing an additional copy of the discharge summary and expressing anxiety that Victoria had not been seen by the Child Protection Adviser.  Ms Kitchman contacted Ms Arthurworrey, who allayed her concerns.

42.	By September 1999 the NTDO was in disarray.  Because of the uncertainty and unhappiness engendered by the restructuring, the unremitting pressures of the work and the widespread perception that the staff would be expected to do even more work but would receive no more pay or recognition, several experienced social workers left and many of those who remained became disaffected.  Temporary workers, recruited through agencies, were widely used. Members of Ms Baptiste’s team were openly critical of her, alleging that she was incompetent and misguided.  While some members of the applicant’s team were complimentary and appreciative of the support she gave to them, others complained that she was “a bully” and that she behaved like a “headmistress”, probably because she was often critical of those whose performance she perceived to be less than satisfactory.  Mr Duncan, who was acting as Commissioning Manager, was frequently away from the NTDO, undertaking the duties of a Manager in the Hornsey Office.

43.	During this time the Senior Practitioners and Team Managers at the NTDO were apprehensive and defensive because, under the restructuring arrangements, they were being required to apply for the posts they already held.  On 16th September 1999 the applicant and the other Team Managers were informed by the Haringey Personnel Officer that they would be required to attend for “Occupational Tests” and a “financial exercise”. On 23rd September 1999 the Team Managers sent a memorandum to the Assistant Director, Ms Wilson expressing their concern at the short notice given to them and the lack of time allowed for preparation for their interviews and presentations.

44.	On 20th September 1999 Ms Baptiste held a supervision meeting with Ms Arthurworrey.  They identified Victoria’s case as one of “family support” because the child protection issues had been investigated and had been shown to require no further action. It was agreed that Ms Arthurworrey would “chase up” a response from the Housing Department and continue to offer family support until the end of October 1999.

45.	On 22nd September 1999 the applicant was interviewed for the post of Team Manager in the restructured DIAT at the NTDO.  Her interview was successful and she was subsequently offered the post of Team Manager at the NTDO.

46.	On 30th September 1999 Ms Kouao’s housing application was refused by the Haringey Housing Department on the ground that she had made herself intentionally homeless by leaving her accommodation in France.

47.	On 28th October 1999 Ms Arthurworrey visited Mr Manning’s flat again.  Ms Kouao made the flat especially clean and tidy in preparation for the visit and Victoria was told how to behave in front of Ms Arthurworrey. The purpose of the visit was to explain to Ms Kouao that her application for housing had been turned down and to discuss the remaining options, one of which was returning to France, with financial assistance from the Social Services Department.  Ms Arthurworrey told Ms Kouao that the council only accommodated children who were "at risk of serious harm" and that, in the Council's view, Victoria was not at such risk.  Victoria sat on the floor playing with a doll and was largely ignored. The fact that she was still not attending school was raised during the conversation but Ms Arthurworrey did not ask questions about how Victoria was spending her time.  Towards the end of the visit, Victoria suddenly jumped up and shouted at Ms Arthurworrey. She said words to the effect that she did not respect her or her mother and that they should be given a new home. This behaviour surprised Ms Arthurworrey.

48.	On 1st November 1999, Ms Kouao telephoned Ms Arthurworrey and told her that Mr Manning had been sexually harming Victoria.  Ms Arthurworrey told Ms Kouao to come to her office.  Later that morning Ms Kouao arrived with Victoria and Mr Manning.  Ms Arthurworrey thought it would be better if Mr Manning left and he was sent away.  Ms Kouao then cited three separate instances of sexual abuse.  Victoria was then spoken to alone and repeated what Ms Kouao had said, almost word for word.  She appeared to be very anxious to be believed.  Ms Arthurworrey and the other social worker present, Ms Valerie Robertson, thought that Victoria had been coached.  Ms Arthurworrey told Ms Kouao that she would have to move out of Mr Manning’s flat and she arranged for a taxi to take her to the home of her friends, Mr and Mrs Kimbidima.  Ms Arthurworrey also arranged a strategy meeting for 5th November 1999.

49.	On 2nd November 1999 Victoria and Ms Kouao returned to the NTDO to withdraw the allegations of sexual harm.  Ms Arthurworrey was not present because she was on a training course elsewhere.  Ms Kouao spoke to Ms Kozinos.  Ms Kozinos told her that, despite the retraction, she and Victoria would have to live elsewhere while the matter was investigated.  Ms Kouao told Ms Kozinos that she and Victoria could continue to stay with Mr and Mrs Kimbidima.  In fact, they returned to Mr Manning’s flat in Somerset Gardens.

50.	On 3rd November 1999 Ms Baptiste (who was still a Team Manager) asked Ms Kozinos to chair the strategy meeting on 5th November.  She did so.  The meeting was attended by Ms Arthurworrey, PC Jones and PC Pauline Ricketts (a second Police Child Protection Officer).  Ms Kozinos realised that this was the same case as the one in respect of which she had chaired a strategy meeting on 28th July 1999.  She was assured that all earlier concerns had been fully investigated.  The meeting lasted for about 45 minutes.  Fifteen recommendations were made and noted by Ms Kozinos, including obtaining “some proof” that Victoria was Ms Kouao’s child, completing a medical check on Victoria, obtaining legal advice, talking to Victoria on her own and arranging a Child Protection Conference.

51.	On 8th November 1999 the applicant took up her new post as the sole Team Manager at the NTDO.  Ms Baptiste (who had been interviewed and found to be unappointable) was supposed to be available to assist the applicant and to “hand over” cases to her but she was rarely in the office.  The role of the Senior Practitioners who were to be appointed as Practice Managers under the applicant remained “in dispute” and no one was appointed as a Practice Manager until December 1999.

52.	Before November 1999 the applicant had found that, because of the pressure of other work, she was unable to follow the policy of reading and/or checking files.  That position did not change.  The applicant was convinced that the established policies were unworkable and she felt unable to read or check files unless there was some particular problem either with the case or with the allocated social worker.

53.	The applicant’s appointment as sole Team Manager in the restructured DIAT should have meant that she would be responsible for immediate supervision of 3 Practice Managers who would, in turn, supervise 5 Social Workers each but, because of the gap at Practice Manager level, the applicant agreed to do the best she could during the interregnum.  Accordingly, her supervisory responsibilities were, temporarily, increased very considerably.

54.	During November and December 1999, the applicant assumed responsibility for the supervision of all of the social workers at the NTDO, including Ms Arthurworrey.  This probably involved supervising the conduct of between 192 and 256 cases.

55.	On 9th November 1999 Mr Duncan sent a memorandum to all Senior Practitioners and Practice Managers in which he acknowledged that they were experiencing “a difficult time” and thanked them for bringing their unhappiness to his attention.

56.	Soon after her appointment the applicant decided to have a meeting with Ms Arthurworrey as part of a plan to ensure that “everyone in Carol’s team” was reviewed and that “some support took place”.

57.	On 15th November 1999 the applicant held a supervision session with Ms Arthurworrey.  The session lasted between 1 and 2 hours.  The applicant discussed with Ms Arthurworrey when she should take the “time off in lieu” that she had accumulated and when she should take her annual leave.  They agreed that Ms Kozinos would become Ms Arthurworrey’s supervisor after her anticipated appointment as a Practice Manager.  The applicant and Ms Arthurworrey then turned their attention to Ms Arthurworrey’s cases.  The applicant did not read Victoria’s file.  There is a fundamental dispute as to what was said about Victoria’s case.

58.	The applicant says that Ms Arthurworrey did not tell her about the 5th November strategy meeting; that the only strategy meeting Ms Arthurworrey mentioned was that of 28th July 1999; that Ms Arthurworrey told her that there were no child protection concerns and that Ms Arthurworrey did not tell her about the allegations of sexual abuse of Victoria by Mr Manning.  In her statement to Mr Monaghan and elsewhere, Ms Arthurworrey maintained that she “fully updated” the applicant and explained about the initial strategy meeting in July 1999, the concerns, how the referral came in and how the case progressed all the way up to the strategy meeting on 5th November 1999.  The applicant maintains that Ms Arthurworrey simply did not tell her about the events of 1st, 2nd and 5th November 1999 and that, if she had done so, she would have issued completely different instructions to her.

59.	The applicant made notes during the discussion of Victoria’s case with Ms Arthurworrey as follows:
“1 child protection investigation took place. No further concerns
2 refer to EWO – school
3 permission to interview child on her own
4 discuss bed wetting with G.P.
5 refer to Family Centre bereavement counselling
6 closing summary
7 complete care plan
8 complete decision of strategy meeting
9 work to be completed by 17-12-99”
The discussion about Victoria’s case took about 5 minutes.

60.	On 19th November 1999 Ms Arthurworrey wrote to Ms Kouao to offer her an appointment in the office on 1st December.  She assumed that Ms Kouao was still staying with Mr and Mrs Kimbidima but she sent the letter to Mr Manning’s flat.  Unbeknown to her, this was the “right” address.

61.	Ms Kouao was forcing Victoria to sleep in the bath in Mr Manning’s flat. From November 1999 onwards, Victoria was tied up inside a black plastic sack in an effort to stop her from soiling the bath. Victoria spent extended periods lying in her own urine and faeces. In January 2000 Ms Kouao abandoned this policy because she was worried that the condition of Victoria's skin might cause social workers to ask "undue questions".

62.	On 30th November 1999 the applicant had a supervision session with Ms Kozinos during which it was agreed that Ms Kozinos would supervise Ms Arthurworrey.  There was no discussion about Victoria’s case.  The dispute about the role of Practice Managers was discussed.

63.	On 1st December 1999 Ms Arthurworrey called Ms Kouao on her mobile telephone.  She received no reply and left a message.

64.	On 13th (or 15th) December 1999 Ms Arthurworrey telephoned Mr Manning.  There was no response.  On the same date, Ms Arthurworrey telephoned Mr and Mrs Kimbidima and discovered that Ms Kouao had returned to live with Mr Manning.  She did not ask, nor was she told, when this had happened.

65.	Ms Kozinos was supposed to have a supervision session with Ms Arthurworrey on 14th December 1999 but this was cancelled because Ms Arthurworrey, Ms Kozinos, the applicant and others were all out on strike.

66.	Ms Kozinos was interviewed for the post of Practice Manager on 20th December 1999 and she was appointed on 24th December 1999.

67.	On 23rd December 1999 Ms Kozinos had a supervision session with Ms Arthurworrey.  Ms Kozinos noted that the family had “left the area” but suggested a further “spot check” before completion of “the appropriate paper work” for closure of the file.  Ms Kozinos was under the impression, given to her by Ms Arthurworrey, that the applicant had already made the decision to close the case.

68.	On 6th January 2000 Ms Arthurworrey carried out a “spot check” of Mr Manning’s flat but found no one at home. Ms Arthurworrey telephoned Ms Kouao and Mr Manning but received no answer.  She concluded that the family had returned to France.

69.	In January 2000 Victoria began to spend more and more of her time in the bathroom at Mr Manning’s flat. Not only did she continue to sleep in the bath but she also began to spend some of her days in it as well.  Ms Kouao and Mr Manning began to serve Victoria her meals in the bath. They placed the food on a piece of plastic and placed it in the bath next to her. They would generally give her whatever they had cooked for themselves but by the time it reached her it was usually cold.  Victoria was forced to eat by pushing her face towards the food because her hands were kept bound with masking tape.

70.	Victoria was also regularly beaten by both Ms Kouao and Mr Manning. Ms Kouao struck Victoria on a daily basis with a variety of weapons including a shoe, a hammer, a coat hanger and a wooden cooking spoon.   Mr Manning kicked Victoria and sometimes whipped her with a bicycle chain.

71.	On 18th February 2000 Ms Arthurworrey wrote to Ms Kouao at Mr Manning’s address.  She said that she was closing the file because Ms Kouao had failed to maintain contact with her office.  She then completed a closure summary form and gave the file to Ms Kozinos.

72.	By 19th February 2000, Victoria was very ill.  Ms Kouao took her to the Universal Church of the Kingdom of God in Seven Sisters Road. They were seen coming up the stairs. They were shouting at each other and Victoria seemed to be having difficulty walking. At the end of the service, the Pastor spoke to Ms Kouao about the difficulties she said she was having with Victoria, particularly her incontinence.  He expressed the view that Victoria's problems were due to her possession by an evil spirit.

73.	 On 24th February 2000 Ms Kouao took Victoria back to the Church and asked for help.  Having seen Victoria, the Pastor advised them to go to the hospital and a mini-cab was called.   The driver took them straight to the nearby Tottenham Ambulance Station.  Victoria was then taken by ambulance to the North Middlesex Hospital and admitted to the casualty unit.

74.	On 24th February 2000, Victoria was desperately ill.  She was bruised, deformed and malnourished.  Her temperature was so low it could not be recorded on the hospital's standard thermometer.  Dr Lesley Alsford, the Consultant responsible for Victoria's care when she was admitted to the North Middlesex Hospital, told the Laming Inquiry that she “had never seen a case like it before”. It was “the worst case of child abuse and neglect” that she had ever seen.

75.	Victoria died on Friday 25th February 2000, aged 8.

76.	Earlier on 25th February 2000 the applicant had signed off the children and families’ assessment action record, marking it for no further action.  In her interview with Mr Monaghan and in her written evidence to the Laming Inquiry, the applicant said that she had not closed the case but in her oral evidence to the Laming Inquiry she admitted that she had.

77.	On 28th February 2000 the applicant, by this time fully aware that Victoria had died and that her office had had responsibility for her case, photocopied the file before it was removed from the NTDO for safe-keeping and consideration elsewhere.  Ms Arthurworrey has alleged, in various statements, that, during this process, the applicant removed several documents from the file.  The applicant has denied (and continues to deny) that she did so.  Lord Laming (at paragraph 6.549 of his Report) said that he was “forced to the conclusion that Ms Mairs was responsible for the removal of the closing summary and last contact sheet from Victoria's case file” and noted that “this finding must inevitably cast some doubt on her evidence to the Inquiry on other matters that relate directly to Haringey's handling of Victoria's case and the events leading up to her death”.  However, at the beginning of the hearing, Counsel for the Secretary of State said that, because this alleged misconduct could not have caused harm or potential harm to Victoria, it would be unnecessary for the Tribunal to attempt to determine this issue given that the evidence was conflicting, unsatisfactory and inconclusive.  Accordingly, the Tribunal noted the written evidence relating to the matter but heard nothing further about it and made no findings.

78.	In July 2000 the applicant ceased as Team Manager for the DIAT at the NTDO and was seconded to the Children & Families DIAT at the Hornsey District Office.

79.	On 25th October 2000 the Haringey Area Child Protection Committee issued the “Report of the Review Panel set up under Part 8 of ‘Working Together to Safeguard Children’ following the death of Anna Kouao”.  The Panel noted that Ms Arthurworrey “maintained that she had discussed the case with the team manager” but found that, on 15th November 1999, the “new team manager” (the applicant) was “not told of [the] recent strategy meeting regarding the allegations of sexual abuse and [was] told that there were no concerns”.  The applicant was, the Panel found, “unaware of the allegations until after Anna’s death”.  The Panel expressed the view that Ms Arthurworrey must have withheld “vital information” from the applicant because it was “extremely unlikely that a social work manager would recommend case closure during a Section 47 investigation”. They recommended, amongst many other things, that “every single case allocated to a social worker should be reviewed by the Team Manager at three monthly intervals” and said that “[t]his must involve reading the files”.

80.	On 31st October 2000 Ms Arthurworrey was suspended from duty.

81.	On 20th March 2001 the applicant was suspended from duty pending a disciplinary hearing.

82.	On 20th April 2001 the Secretary of State appointed Lord Laming to conduct three statutory inquiries, which collectively were known as “The Victoria Climbié Inquiry”.

83.	On 15th May 2001 Mr Monaghan produced his report into the conduct of the professional officers in Haringey Housing and Social Services. He concluded, amongst other things, that, as at 15th November 1999, when the applicant had her supervision meeting with Ms Arthurworrey in which Victoria’s case was dealt with, the applicant did not know or had not fully comprehended the serious issues that were outstanding on the case.  Mr Monaghan also found that the applicant (a) did not look at the file and did not examine either of the strategy meeting minutes; (b) this was the first supervision with a social worker with an unfamiliar allocated case load and (c) the applicant had a duty to examine the minutes to ascertain for herself what was outstanding.  Mr Monaghan asked rhetorically: how was the applicant able to assure herself that the outstanding work to be completed was not critical and crucial without examining the file?  He concluded that the applicant had failed to give proper attention and care to the matters raised with her about this case and that she did not enquire sufficiently or apply rigour to the views expressed by Ms Arthurworrey.  Accordingly, he found (a) that the applicant failed to meet the standard required (contained in the Job Description of the Team Manager) i.e. to ensure that DOH guidance and local guidance on child protection was followed to a high standard and (b) that she failed to read the case file as required by the Recording Policy.

84.	On 27th June 2001 the applicant was required to attend a disciplinary hearing fixed for 23rd July 2001.  She was informed that the allegations that she had (a) removed documents from the case file; (b) made false and misleading statements to the Part 8 Enquiry; (c) failed to exercise her duties as a Team Manager and (d) failed to read the case file as required by the Recording Policy would be considered at that hearing.

85.	On 11th July 2001 the applicant made her written statement to the Laming Inquiry.

86.	In July 2001 the applicant applied to the High Court for judicial review of Haringey’s decision to hold a disciplinary hearing.  Her application was successful to the extent that Haringey was required to postpone the hearing until after she had given evidence to Part 1 of the Laming Inquiry.

87.	In the course of their oral evidence to the Laming Inquiry Mr Duncan, Mr Almeida, Ms Kozinos, Ms Robertson, Mr Peatfield and Ms Baptiste all praised the applicant and spoke of her ability as a manager.

88.	On 7th December 2001 the applicant gave oral evidence to the Laming Inquiry.  At the beginning of that evidence she asked to be allowed to correct her written statement in two respects.  First, she added to her assertion that “there was no system for reading files” the words “in practice”.  Secondly, she added, by way of correction to her observations about the requirements imposed upon managers: “while there is a written policy that we should read files, in practice resources did not permit us to do this and this was common knowledge”.  The applicant agreed with Leading Counsel to the Inquiry that she had been aware of the written policy at all relevant times.

89.	In the course of her lengthy questioning by Leading Counsel to the Inquiry the applicant agreed that, by April 2000, the NTDO was in “a sorry state” but said that she and the other managers had not had the resources “to turn the situation around”.  The applicant, when being asked about her specific involvement in Victoria’s case, agreed that, if she had “so much as flicked through the file”, she would have seen that there had been a strategy meeting 10 days earlier.  That “single instance”, the applicant agreed, demonstrated how essential it was for a manager conducting a supervision to at least “flick through” the file.

90.	In answer to questions from Lord Laming the applicant agreed that, since she had had no “handover” from Ms Baptiste, it was even more important for her to find out for herself about the cases allocated to social workers in her team and that she should have read Victoria’s file but that she did not.  The applicant also agreed with Lord Laming that, if she had looked at the file, she would have seen that there was a recommendation that a case conference should be held and she would have insisted upon such a conference being held with the probable result that Victoria would not have been left in the care of Ms Kouao and Mr Manning.

91.	On 14th August 2002 the applicant was informed that her disciplinary hearing would take place on 19th September 2002.

92.	On 12th September 2002 the applicant wrote a letter to the Haringey Director of Social Services giving notice of her resignation.  The applicant alleged that she had been unfairly treated and discriminated against on racial and other grounds and said that she had no confidence that she would receive a fair hearing.

93.	On 19th September 2002 Mr Tony Creissen, the Director of Adult Services in Haringey, held a disciplinary hearing.  The applicant did not attend and she was not represented. Having read the documents placed before him and having heard oral evidence from Mr Monaghan, Mrs Dawn Green and Ms Valerie Robertson, Mr Creissen found that the applicant had removed documents from the file; that she had failed properly to exercise her duties as a Team Manager and that she had failed to read the file.  He also found that each of these actions or failures amounted to gross misconduct.  Accordingly, Mr Creissen confirmed the decision to dismiss the applicant with immediate effect.

94.	On 23rd September 2002 Haringey Social Services advised the Secretary of State of the applicant’s dismissal and the reasons for it.

95.	On 27th September 2002 the applicant’s name was provisionally placed on the list established by section 1 of the Protection of Children Act 1999.

96.	In January 2003 Lord Laming, having found it “hard to accept the accuracy of Ms Mairs' statements in this matter”, concluded (at paragraph 6.466 of his Report) that “it was clearly Ms Mairs' job, as supervisor, to know about the key milestones in the case”. He noted that “a number of her supervision decisions mirror almost exactly the recommendations of the second strategy meeting and the concerns they seek to address were not an issue for social services back in July”.  Lord Laming was “therefore forced to the conclusion that Ms Mairs' supervision decisions could not have referred to the July strategy meeting, and that the reason she took no issue with Ms Arthurworrey about the delay in completing the necessary tasks was because the strategy meeting they were discussing was the November strategy meeting”.  It followed “that the unrealistic deadline that she set demonstrated her failure to fully grasp the seriousness of the matters before her, and the opportunity to get a management grip on the case through supervision was lost yet again”.

97.	On 6th November 2003 the Secretary of State confirmed the provisional listing of the applicant’s name.

98.	At the hearing, Mr Duncan told the Tribunal that he wanted the Team Managers at the NTDO to pre-read files before supervision sessions with social workers but recognised that, even doing their best, they could not do so.  He said that November 1999 was “a very exceptional time” because of the restructuring, the unhappiness in the office, the repeated absences of Ms Baptiste and the threat of strike action.  He concluded that the applicant was “making do in a period of transition” and that, if she had not “stepped in”, the situation would have been “very problematic” because there would have been no supervision of social workers at all.  Mr Duncan also said that, having worked with the applicant from 1992, he had never been given any cause for concern that she might be unsuitable to work with children and he described the applicant as “hard working, committed and loyal” and as someone who would “go the extra mile”.

99.	At the hearing Mr Peatfield said that, in November 1999, the pressures on staff at the NTDO were acute.  He was impressed by the applicant’s experience and expertise.  He found her to be thoughtful and cautious but able to challenge and question.  He felt able to count upon her judgment and was satisfied that she had the ability properly to assess risks and to reach sound conclusions in connection with the protection of children.  He found her to be a tough and demanding manager who tried to get the best from her staff.  The applicant was, he said, “not inflexible” and she did not have fixed views.

100.	Mr Peatfield agreed that a careful team manager would look at files but suggested that it was important to have regard to the context in which he or she was working when judging whether he or she was careless.  He was concerned that, whenever a department was being “swamped”, many staff of quality would leave and those who were “left standing” would bear the brunt of the criticism if a disaster happened.  He felt that the applicant would need time to recover and rebuild her confidence and skills because she had been “put through the wringer” but he was sure that she could learn from her mistakes and could make a valuable contribution to social work in the future.  Mr Peatfield was satisfied that the applicant had never acted in a manner that would place children at risk and that she should not be regarded as unsuitable to work with children merely because she had failed to achieve something that was unachievable.

101.	The applicant told the Tribunal that she accepted that it was good practice to read files but said that, in reality, this could not be done.  She had agreed to take on the supervision of Ms Arthurworrey in November 1999 because she was committed to the future success of the NTDO and therefore had no choice but to try to offer “some support” to social workers who were adversely affected by the prevailing uncertainty.  The session with Ms Arthurworrey on 15th November 1999 was not, she said, a “formal supervision” with a supervision contract but merely a supportive meeting pending the appointment of the Practice Managers, one of whom would take on the formal supervision in due course.  At the time there did not appear to be anything extraordinary about Victoria’s case and she relied upon the verbal report given to her by Ms Arthurworrey and did not look at the file either before or during the supervision session.  She had done her best but she recognised now that mistakes were made under the intolerable pressure.  With the benefit of hindsight she wished that she had acted differently and she was overwhelmed by what had happened.  Her career and her health had been ruined.  She had taken anti-depressant medication for a long time but had stopped doing so because she felt that she was becoming over-reliant upon it.  She was having counselling but could not stop thinking about the terrible suffering and death of Victoria and frequently cried uncontrollably.

102.	When giving evidence to the Tribunal the applicant also recognised that her notes of the supervision session were inadequate and said that, if she had been told about the second strategy meeting (which she maintained she was not) she would have been much more worried; would have made more extensive enquiries and would have taken immediate steps to convene a case conference.  She accepted that she could have glanced at the notes on the file during the supervision but said that she was given no reason to do so.  She was not prepared to take responsibility for something of which she had no knowledge but she did take her share of the responsibility for the failure of her office to prevent the death of Victoria.

103.	The applicant endeavoured to explain exactly why she had made the notes that she did on 15th November 1999 and suggested that Ms Arthurworrey was convinced that this was a “family support” case and was “caught up” in that,  For that reason, she did not give a full and proper account of the case to her supervisor

104.	The applicant told the Tribunal that if she were ever given the opportunity to work as a team manager again she would read every file and would keep very detailed notes.  She was, she said, a tough manager but she was not a bully.  She had always, during 19 years of unblemished service, given the highest priority to the protection of children and she would do so again if permitted.

The law 

105.	The Tribunal received detailed submissions from both Ms Connelly and Mr Coppel as to the law that should be applied.  Having considered those submissions and the authorities relied upon, the Tribunal reached the following conclusions.

106.	Under section 4(3) of the 1999 Act, if the Tribunal is not satisfied that the individual applicant (a) was guilty of misconduct (whether or not in the course of his or her duties) which harmed a child or placed a child at risk of harm and (b) is unsuitable to work with children, it must allow the appeal.  If the Tribunal is so satisfied it must dismiss the appeal.

107.	Burden of proof
Section 4 of the 1999 Act places the burden of proof on the Secretary of State.

108.	Standard of proof
The standard of proof required, in order to be satisfied as to the matters set out in section 4(3) of the 1999 Act, is that described in the decisions of the House of Lords in Re H and others (minors) (sexual abuse: standard of proof) [1996] AC 563; [1996] 1 All ER 1 [1996] 1 FLR 80 and Secretary of State v. Rehman [2002] 1 All ER 141. In the former case, Lord Nicholls of Birkenhead said:
“[T]he standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability….
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability….
Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.”

In the latter case Lord Hoffman said:
“It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that he was an Alsatian.  On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has…behaved in some…reprehensible manner.  But the question is always whether the tribunal thinks it more probable than not”.

109.	Misconduct
The Tribunal is not confined to consideration of misconduct by commission.  An individual applicant can be guilty of misconduct by omission.

Misconduct is not defined in the 1999 Act nor is the term qualified by any adjective such as “serious” or “gross”.

In the Practical Guide to the 1999 Act, issued by the Department of Health, it is noted that, during the passage of the Act through Parliament, Members were anxious to ensure that incompetence (whether or not attributable to inadequate training and/or supervision) and “youthful indiscretion” would not result in automatic referral to the Secretary of State.  It is further suggested in the Guide that, in the circumstances of the 1999 Act, misconduct could range from serious sexual abuse through to physical abuse (including inappropriate physical restraint) and/or poor child care practices in contravention of organisational codes of conduct.

There is no authority, emanating from the Tribunal or elsewhere, as to what could constitute “misconduct” within the meaning of the 1999 Act.  However, the term has been considered in analogous situations.  Paragraph 25(d) of the Pharmaceutical Society (Statutory Committee) Order 1978 refers to “professional misconduct” as the basis for the exercise of a power to reprimand a registered pharmacist and section 25(1) of the Dentists Act 1957 refers to “serious professional misconduct” as the basis for erasing the name of a dentist from the Dentists Register.  Each of these provisions has been the subject of judicial interpretation.

In principle, a single act of negligence could constitute misconduct (per Webster J in R v. Pharmaceutical Society of Great Britain ex p. Sokoh (1986) “The Times” 4th December) but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling.

In the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standards of conduct expected from members of that profession (Doughty v. General Dental Council [1987] 3 All E.R. 843).

It is not helpful to attempt to further refine “misconduct” by reference to any adjective having moral overtones.  The word “misconduct” does not necessarily connote moral censure.  An individual can be “guilty of misconduct” without being, for example, dishonest or disgraceful.

An individual is not guilty of misconduct if he or she was unable to avoid the improper act or omission complained of or was in a position where it was impossible to avoid breaching the relevant code of conduct.  If the requirement to act properly or in accordance with a code was merely rendered more difficult by the acts or omissions of others or by the prevailing circumstances, there can still be a finding of misconduct.  Mitigation of an offence is always possible and, where the circumstances are such that the individual guilty of misconduct was overworked, short of time and/or unsupported it may be possible to excuse his or her misconduct.  However, misconduct is only extinguished when the extenuating circumstances rendered proper performance of a duty impossible as opposed to more difficult.  

Inclusion on the list kept under section 1 of the 1999 Act is not intended to stigmatise, discipline or punish. The concern of the listing regime is to contain the risk of harm to children.  The regime identifies an unacceptable risk of harm by reference to some past misconduct plus a present unsuitability to work with children.  It is neither necessary nor appropriate to limit the scope of the regime by adopting a restricted definition of “misconduct”.  The misconduct triggers consideration of the second criterion for inclusion – unsuitability to work with children.  Not all of those found guilty of misconduct will be held to be unsuitable to work with children.  A finding of misconduct of a less serious nature will not generally lead to a finding of unsuitability without more.   Conversely, an individual guilty of relatively trivial misconduct could be shown to be wholly unsuitable to work with children.

In deciding whether an individual is unsuitable the Secretary of State or, on an appeal, the Tribunal, must undertake an assessment of risk.  The “opening of the flood-gates” argument advanced by Ms Connelly (i.e. if the meaning of “misconduct” is extended to include all acts of negligence or errors of judgment, given the pressures on all social services departments, few social workers will escape inclusion) is met not by reference to the meaning of “misconduct” but by reference to the concept of unsuitability.

However, for the purposes of the 1999 Act, there must be a direct causal connection between the misconduct admitted or proved and harm or potential harm to a child.

In most cases the harm will have been directly inflicted, or the potential for harm will have been directly created, by the individual charged with the misconduct.  However, this is not always so.  An individual who had traded in child pornography in Germany was obviously guilty of misconduct.  That misconduct did not directly affect any individual child but it did indirectly place unspecified and/or unidentified children at risk of harm (see Miles v. Secretary of State for Health (2001) No. 0042).  Further, the Tribunal has held that a man who posed as a qualified social worker when he had no relevant qualifications was guilty of misconduct which placed a child at risk of harm because, although he had never actually harmed a child, he placed any child with whom he had dealings at risk of harm because he might well have made a wrong decision himself or might have induced a court to make a wrong decision by giving greater weight to his opinion than it deserved, acting on the understanding that he was a qualified professional (see Davis v. Secretary of State for Health (2002) 13.PC).

Thus there can be several links in the chain of causation between the misconduct and the harm or potential harm to a child but all of them must be intact before there can be a finding that an individual was “guilty of misconduct (whether or not in the course of his or her duties) which harmed a child or placed a child at risk of harm”.

Ms Connelly submitted that there is no authority for the proposition that an individual should be included on the list because his or her error of judgment resulted in a lost opportunity to prevent harm to a child.  Mr Coppel responded that, in deciding whether misconduct by omission has harmed a child or placed a child at risk of harm, consideration must be given to the responsibilities assumed by the person listed and whether, if those responsibilities had been properly discharged, there is a real and substantive likelihood that the harm that was occasioned to the child would have been prevented or materially lessened.  The Tribunal accepted that formulation.  

110.	The weight to be attached to the findings of a Public Inquiry
It would be wrong of the Tribunal to enter into any analysis of the procedures adopted by any Inquiry defined by section 2B of the 1999 Act. That is not its function. Its function is limited to that prescribed by section 4(3) of the 1999 Act.

Section 4(4) of the 1999 Act provides that “where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination under this section”.  Parliament did not extend section 4(4) so as to include findings made by Tribunals of Inquiry.  Accordingly, the Tribunal is not bound by any specific findings made by a Public Inquiry.

The Secretary of State is entitled to rely upon the findings of a Public Inquiry and is not required to adduce oral evidence from the same witnesses who gave evidence to that Inquiry in order to discharge the burden that lies upon him.  Principles of natural justice and the right to a fair hearing enshrined in Article 6 of the European Convention do not require the Tribunal to determine every factual dispute afresh.  The Tribunal is not prevented from giving weight to the evidence of witnesses simply because they did not give oral evidence.  The Tribunal can receive hearsay evidence.  The weight to be attached to such evidence is often diminished by the fact that the witness is not seen by the Tribunal and is not subjected to cross-examination during its proceedings.  However, this may not be so when the witness, though neither seen nor heard by the Tribunal, was seen and heard by a major Public Inquiry and was found by that Inquiry to be accurate in his or her recollection.

The Tribunal must give very substantial weight to findings of a Public Inquiry.  However, it is incumbent on the Tribunal to look closely at the evidence that was before the Inquiry (as available in the transcripts and the Report) and to compare it with what is made available to the Tribunal at the hearing.  Evidence that was not before the Inquiry but is placed before the Tribunal must be analysed by the Tribunal in the same manner as it would analyse any evidence.

If the evidence before the Tribunal is the same evidence that was before the Inquiry then any attempt to persuade the Tribunal to give greater weight to that evidence than the Inquiry did, or to ignore that evidence, would be tantamount to asking the Tribunal to act as a Court of Appeal. This, the Tribunal will not do.

All of these principles were established and followed in Barnes v. Secretary of State for Health (2002) No.0070; Glover v. Secretary of State for Health (2002) No.0077 and Cunningham v. Secretary of State for Health (2002) 2.PC - cases that related to the Tribunal of Inquiry into the abuse of children in the former County Council areas of Gwynedd and Clwyd (“The Waterhouse Inquiry”).  They apply also to findings of the Laming Inquiry.

111.	Unsuitability to work with children
Unsuitability must be judged by the Tribunal at the date of the hearing.  The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances.  The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm.  The Tribunal may have regard to:
(a)	the number of the incidents constituting the misconduct established for the purposes of section 4(3)(a) of the Act;
(b)	the gravity of that misconduct;
(c)	the time that has elapsed since that misconduct;
(d)	the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child;
(e)	the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and
(f)	extenuating circumstances surrounding the misconduct.
This should not be regarded as an exclusive list.  The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.

112.	Proportionality
In Cunningham v. Secretary of State for Health (2002) 2.PC the Tribunal said that “one aspect of suitability is an assessment of risk, and that this inevitably involves issues of balance and of proportionality”.
In ARR v. Secretary of State for Education and Skills [2004] 0271.PC the Tribunal held that the provisions of the Act are themselves a proportional response to the obvious need to protect the interests of children.
In so far as these statements of principle are different, the Tribunal accepted the latter.  The Tribunal must respect Parliament’s choice of mandatory language in section 4(3) of the 1999 Act.  It must not substitute its own policy views for the clearly articulated view of Parliament.  The statute itself does the balancing and ensures proportionality.  There is no support in authority for the proposition that the Tribunal must imply an extra, proportionality, limb to the statutory test.

Issues

113.	 It was argued by Mr Coppel on behalf of the Secretary of State that:

(a)	the Tribunal should accept the finding of the Laming Inquiry that the applicant failed fully to grasp the seriousness of the matters before her and lost the opportunity “to get a management grip on the case” through supervision and it should determine whether paragraphs (a) and (b) of section 4(3) are satisfied on that basis;

(b)	on the basis that Ms Arthurworrey, at her supervision session with the applicant on 15th November 1999, did mention the 5th November 1999 strategy meeting and/or the making and retraction of the sexual abuse allegations on 1st and 2nd November 1999, the failure of the applicant (i) to identify properly the decisions of the strategy meeting of 5th November 1999 that remained outstanding; (ii) to identify those matters which required immediate attention in order to avoid risk of further harm to Victoria; (iii) to ensure that all of the tasks identified at the strategy meeting on 5th November 1999 had been promptly undertaken and completed; (iv) to ensure that contact was made, or that all reasonable steps were taken to make contact, with Victoria; and (v) to read, or even to look at the file, so as to find the notes of the strategy meeting of 5th November 1999, represented a very serious failure on her part;

(c)	it was clear from the evidence before the Tribunal that, if the applicant had so much as opened the file, one of the first sections in the clearly divided file to which she would have turned would have been that containing the strategy meeting report; that section only had the reports of the two strategy meetings; the upper-most of these was the report of the 5th November 1999 meeting and a mere scan of that document would have quickly revealed that there were serious allegations of sexual abuse and that this was a child protection matter of the highest priority;

(d)	the applicant’s own evidence was that if she had (i) identified the decisions of the strategy meeting of 5th November 1999 that remained outstanding; (ii) identified those matters which required immediate attention in order to avoid risk of further harm to Victoria; or (iii) read, or even looked at, the file so as to find the notes of the strategy meeting of 5th November 1999, she would have immediately instigated processes that would have ensured the safety of Victoria;

(e)	on any reasonable view, each of these failures was an omission that either harmed Victoria Climbié or placed her at risk of harm and paragraph (a) of section 4(3) is therefore clearly satisfied on the balance of probabilities;

(f)	on the alternative basis that Ms Arthurworrey, at her supervision session with the applicant on 15th November 1999, did not mention either the 5th November 1999 strategy meeting and/or the making and retraction of the sexual abuse allegations on 1st and 2nd November 1999, the failure of the applicant (i) to read, or even to look at, the file so as to find the notes of the strategy meeting of 5th November 1999 and (ii) to identify properly the decisions of the 28th July 1999 strategy meeting that remained outstanding, represented a very serious failure on the part of the applicant because, as the Laming Inquiry found, “an experienced manager such as Ms Mairs ought to have registered and recorded her concerns that almost five months had elapsed [since the first strategy meeting] and the outstanding work was not now going to be completed before mid December” and because, as the Laming Inquiry further found, “if the decision to speak to Victoria on her own, as Ms Mairs asserted, related to the July referral then it would have meant that a vital element of a child protection inquiry had yet to happen, nearly five months after the initial referral. This was clearly a grave and unacceptable lapse in professional practice”;

(g)	had the applicant (i) identified the decisions of the strategy meeting of 28th July 1999 that remained outstanding or (ii) identified those matters which required immediate attention in order to avoid risk of further harm to Victoria, she would have promptly ensured their completion so that, on any reasonable view, each failure was an omission that either harmed Victoria Climbié or placed her at risk of harm and paragraph (a) of section 4(3) is therefore still, on this alternative basis, clearly satisfied on the balance of probabilities;

(h)	where there has been an incident of misconduct that harms a child or places a child at risk of harm, whether the person responsible for the misconduct is presently unsuitable to work with children will principally depend upon (i) the number of the incidents constituting the misconduct established for the purposes of s. 4(3)(a); (ii) the gravity of that misconduct; (iii) the time that has elapsed since that misconduct; (iv) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential of harming a child; (v) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; (vi) extenuating circumstances surrounding the misconduct; and
(vii) other misconduct by the appellant (i.e. other than that established for the purposes of section 4(3)(a), including harm to other adults), applying the matters numbered (i) to (vi) above in relation to each such misconduct;

(i)	of particular significance in this case are the matters numbered (ii), (iv), (v) and (vi) above;

(j)	as to (ii), the gravity of the misconduct cannot be overstated because the supervision regime exists to prevent the very thing that occurred:  it is an integral part of a Team Manager’s duties and it is one of a Team Manager’s paramount obligations;

(k)	as to (iv), the applicant continues to downplay the significance of her culpability and, in the face of Lord Laming’s report, she maintains that she was not told about the 5th November strategy review and the allegations of sexual abuse and she continues to contend that it was impossible to “read through” files in advance, ignoring the distinction between that and the perfectly possible “flicking through” or “looking at” a file;

(l)	as to (v), the applicant has not squared how she would, if permitted, juggle the “work pressures” that she continues to maintain made doing the job impossible and which will almost certainly confront her in any inner city social services department, with doing the job better than she did whilst with the London Borough of Haringey;

(m)	 as to (vi), work pressure has continued to be the applicant’s explanation for the shortfall in her performance and, while the pressure of work is not disputed by the Secretary of State and while that work pressure may have made it impossible for a Team Manager to “read the file” (i.e. page-by-page) in advance of a supervision session, work pressure does not excuse failure to look at the file so as to find the strategy meeting notes, nor failure to ascertain, from the social worker being supervised, what remained outstanding;

(n)	the continued stance of the applicant that she was not told of the matters that Lord Laming (and Mr Monaghan) found she was told goes to whether she is a person that can have the requisite trust and confidence to be permitted to work with children;

(o)	 in these circumstances, paragraph (b) of section 4(3) is clearly satisfied on the balance of probabilities;

(p)	while it is correct that, on the alternative premise, the current unsuitability of the applicant is not so stark as on the first premise, the gravity of the misconduct remains very significant because the supervision regime exists to prevent the very thing that occurred; the failure to check completion of the 28th July strategy meeting requirements was culpable on any reasonable view and the applicant continues to downplay the significance of her failure; and

(q)	even on this lesser basis, paragraph (b) of section 4(3) is satisfied on the balance of probabilities.

114.	 It was argued by Ms Connelly on behalf of the applicant that:

(a)	the applicant does not say that, in relation to the conduct of Victoria’s case by Haringey Social Services, her involvement should not be criticised nor does she deny that she must shoulder some responsibility, collectively with others, for failing Victoria;

(b)	the issue is “misconduct” not negligence or incompetence and the Tribunal is not making an assessment of the applicant’s performance as a social worker;

(c)	to be included in the list has serious consequences;

(d)	there was no direct causal link between any misconduct on the part of the applicant and harm or potential harm to Victoria because there were others who subsequently missed the opportunity to try and prevent harm to Victoria, e.g. Ms Arthurworrey, who did not undertake those matters identified by the applicant in the 15th November supervision and Ms Kozinos, who supervised Ms Arthurworrey on 23rd December 1999 and who had chaired both strategy meetings;

(e)	where the actions of an employer provide working conditions that are so woefully inadequate in terms of resources and/or staffing as to place an employee in a situation whereby she is unable properly and effectively to undertake her duties and responsibilities, it cannot be right that the employee’s failure to do so thereby makes her guilty of misconduct:;

(f)	Lord Laming said, at paragraph 6.2 of his Report:
“As with the other agencies involved in Victoria’s care, it is not enough to consider the omissions and failings of individual practitioners in Haringey without considering the context to which they were working at the time. It is also necessary to understand the extent to which the organisation in which they served, and the working practices of the organisations, can, and must, shoulder the blame for serious lapses in individual professional practice. The evidence on this in Haringey is, in my judgment, overwhelming”;

(g)	 Lord Laming did not determine or investigate issues of misconduct since the task of his Inquiry was to examine what went wrong and to “make recommendations as to how such an event may, as far as possible, be avoided in he future”;

(h)	the conduct relied upon by the Secretary of State is concerned principally with the applicant’s supervision of Ms Arthurworrey on 15th November 1999;

(i)	in considering the actions of the applicant it is impossible to ignore the reality of her working environment at that time and what was expected of her. It is not a case of avoiding or shifting the blame.  The applicant’s workload was considerable even before the restructuring and the resources were already inadequate, as senior managers were fully aware;

(j)	what followed after 8th November 1999 was a task so impossible that when Mr Duncan was asked in cross-examination to imagine he was a Team Manager in the applicant’s position and to consider what actions he might have taken in the circumstances, he could not begin to contemplate this as he could not imagine trying to work in such a situation and under the pressures that the applicant faced;

(k)	the maximum sensible caseload for individual social workers in the NTDO was considered to be between 10 and 12 (of which up to half might be child protection) but, in reality, those maximums were regularly, if not permanently, exceeded;

(l)	even before the restructuring, the applicant supervised 9 social workers in her team, and 2 social workers who were responsible for unaccompanied minors, in addition to her other responsibilities and this involved between 108 and 144 cases, possibly more;

(m)	during November and December 1999, the applicant took responsibility for the supervision of additional social workers (involving supervising between 192 and 256 cases) and this was a task that would have been impossible for one person to do properly;

(n)	senior managers could and should have known about the serious deficiencies in Haringey’s children’s services in early 1999, not least because of the detailed criticisms of various aspects of children’s services in the Joint Review Report of 1999 and the identification of potential “burn out” in Tottenham DIAT in particular;

(o)	Haringey children’s services were already poorly resourced and under-funded and the aim of the 1999 restructuring was to save money;

(p)	the process of that restructuring and the delays in implementation had an enormous impact not only on morale but also the ability of staff to undertake their responsibilities;

(q)	the applicant’s appointment as sole Team Manager of the DIAT under the restructuring should have meant that she would be responsible for immediate supervision of 3 Practice Managers who would, in turn, supervise 5 Social Workers each but, in reality, her “supervisory” responsibilities massively increased so that any prospect of her being able to read the case files at all, let alone prior to supervision, was wholly unrealistic;

(r)	in these circumstances, terms such as “challenging” and “difficult”, frequently encountered in describing the role of front-line social work teams, become euphemisms for “nigh on impossible”;

(s)	Mr Monaghan accepted that managers have to place trust in the social workers in their team with regard to the information they are given about a case but suggested that, because this was Ms Arthurworrey’s first supervision with the applicant, she could not do so and therefore should have read or looked at the files, if not before, then during the supervision.  This ignored the reality.  If before November 1999 managers did not have sufficient time or resources to read the files, there was no way the applicant was going to find the additional time in November 1999, given her additional responsibilities.  Ms Arthurworrey had a reputation as a competent and experienced social worker and the applicant had some experience of her on Duty and elsewhere, so that she was not an entirely unknown quantity. In the circumstances, it was not unreasonable, in a “one off supervision” (which this was, there being no place for the applicant to be supervising Ms Arthurworrey in the restructured service), that the applicant should place some trust in Ms Arthurworrey’s reputation and therefore place reliance upon the information she was given about each of the 16 cases under discussion during the supervision;

(t)	it is acknowledged that, in ideal circumstances, a supervisor should read files before or during supervision and that this was not done in this case (or in others) but, given the number of files and the applicant’s responsibilities in November 1999, that was unrealistic, if not impossible;

(u)	Haringey’s case recording policy guidelines at the time provided that managers were “expected to read files” but there was no stipulation as to when files should be read or that this should be done before or during supervision;

(v)	in the prevailing circumstances, staff were forced to adopt alternative procedures (i.e. reading or selecting those files where there were identified problems, either with an individual case or social worker) not through choice but of necessity;

(w)	it is accepted by the applicant that she did not routinely read case files and that the policy required files to be read but the task was such that she was unable to accomplish it because of the demands of the workload rather than any deliberate dereliction of duty on her part;

(x)	it is accepted that the applicant did not “flick through” or look at files in supervision but to do this in every case, while desirable, was impossible. To have done this in every case would have needed additional time which was not available;

(y)	it is acknowledged by the applicant that it would not have taken long to look at the file but caution should be exercised, given the comments as to the disorder of the file and the fact that there were 16 files;

(z)	the applicant disputes (and has always disputed) being told of the 5th November strategy meeting or the allegations of sexual abuse and the conclusion of the Part 8 Inquiry on this point differs from that of Mr Monaghan and Lord Laming;

(aa)	in the present case there has been more than one “Inquiry” and the Tribunal should consider the findings of each of them (i.e. the Part 8 and the Laming Inquiries) in the light of the evidence before it. This is particularly so where the “findings” on the crucial issue of whether or not the applicant was told of the 5th November strategy meeting by Ms Arthurworrey are diametrically opposed.  It cannot be right that the conclusions of one Inquiry should automatically carry more weight than the other;

(bb)	the opinion of Mr Monaghan is that and no more: it is not evidence of fact because his terms of reference were narrow and confined to consideration of possible breaches of the disciplinary code with a view to disciplinary action;

(cc)	the evidence before Lord Laming on this point (i.e. what the applicant was told by Ms Arthurworrey) was, in effect, the same as that before the Part 8 Inquiry.  Mr Monaghan and Lord Laming clearly approached the issue on the basis that either Ms Arthurworrey or the applicant was telling the truth but there are other possibilities that include shades of grey;

(dd)	although the Tribunal may give substantial weight to the finding of Lord Laming that “the strategy meeting they were discussing was the November strategy meeting”, it is not bound by that finding. The Tribunal must reach its own decisions and in doing so it must look closely at the evidence available to Lord Laming, the Part 8 Inquiry and at the hearing;

(ee)	the approach adopted by Mr Monaghan and by Lord Laming to reconcile the differences between Ms Arthurworrey and the applicant relies upon comparison of the November strategy meeting decisions and those of the supervision.  At face value this might be attractive but it was a simplistic approach and the analysis is flawed, ignoring important omissions and features which do not fit within the comparison and placing too great an emphasis on what are perceived to be closely mirrored recommendations of the strategy meeting of 5th November and the supervision of 15th November;

(ff)	it is highly unlikely that the applicant, given her extensive experience and expertise, having been told about the allegations of sexual abuse, would have simply ignored the issue.  On the other hand, there is overwhelming evidence that Ms Arthurworrey failed to grasp the significance of child protection issues e.g. her conclusion on 6th August 1999 (following the “interview” of Victoria in hospital) that the scalding was probably accidental, given the unsatisfactory circumstances surrounding that interview;

(gg)	the Secretary of State having failed to prove that the applicant was told either of the 5th November strategy meeting or the allegations of sexual abuse, the applicant cannot be guilty of misconduct for failing to identify decisions of a strategy meeting of which she was not aware;

(hh)	the applicant did, in any event, direct work to be done by Ms Arthurworrey which was valid and appropriate;

(ii)	even if guilty of misconduct, the applicant is not unsuitable to work with children;

(jj)	unsuitability is not made out in the written evidence of Mr Monaghan, who did not consider the applicant’s suitability to work with children in any capacity;

(kk)	specific criticisms of the applicant’s conduct in relation to Victoria’s case by Mr Monaghan and Lord Laming relate entirely to performance standards as a social work manager;

(ll)	the Secretary of State’s case against the applicant appears to be that (i) she does not accept responsibility for mistakes made surrounding her supervision of Ms Arthurworrey and therefore she will make the same mistakes again and so must be unsuitable to work with children; and (ii) Lord Laming found that Ms Arthurworrey told the applicant about the 5th November strategy meeting and, since the applicant denies this, she is dishonest and therefore unsuitable to work with children;

(mm)	the applicant will clearly not make the same mistakes again and she is not dishonest;

(nn)	regard should be had to the evidence of Mr Duncan, Mr Peatfield and the applicant herself and to the written statements of Dr Burke and others as to her history in social work.  Each of these witnesses testifies to the applicant’s commitment, dedication, judgment and competence in the difficult, highly stressed atmosphere of social work and child protection in particular. They testify as to her ability to recognise risk and deal with child protection issues and provide support and guidance to social work colleagues;

(oo)	reliance is placed upon the applicant’s failure to acknowledge her shortcomings and her making of excuses as rendering her unsuitable for working in child care but she has always acknowledged that the system was inadequate and she was trying to do the best in the circumstances;

(pp)	it does not follow that issues of competence or suitability to work as a social worker necessarily impact upon an individual’s suitability to work with children in general; and

(qq)	even if the misconduct is proved, the Secretary of State failed to prove that the applicant is an unsuitable person to work with children.

Conclusions and reasons

Having carefully considered all of the evidence given and the arguments presented at the hearing and the witness statements and other papers submitted in advance, the Tribunal came to the following conclusions:

115.	The Secretary of State alleges that the applicant was guilty of misconduct by failing “to get a management grip on the case” through supervision.

116.	The misconduct is alleged to have occurred at 3 different but related times.  First, in the period before the supervision session on 15th November 1999, the applicant allegedly failed to read the case file of Victoria Climbié, in circumstances where (a) it should have been apparent to a person in the position of the applicant that only by reading a case file could a proper supervision session be carried out; and (b) it should have been apparent to a person in the position of the applicant that there was a real and continuing risk of harm to Victoria Climbié.  This was the alleged “pre-session misconduct”.

117.	Secondly, the applicant, in her capacity as the Team Manager at Haringey Social Services with immediate responsibility for supervising Ms Arthurworrey, at the supervision session with Ms Arthurworrey held on 15th November 1999 allegedly (a) failed to identify properly the decisions of the strategy meeting of 28th July 1999 that remained outstanding, in particular the decision to interview Victoria on her own; (b) failed to identify properly the decisions of the strategy meeting of 5th November 1999 that remained outstanding; and (c) failed to identify those matters which required immediate attention in order to avoid risk of further harm to Victoria in circumstances in which it should have been apparent to a person in the position of the applicant that Victoria was at real risk of serious harm. This was the alleged ”session misconduct”.

118.	Thirdly, the applicant, having been told by Ms Arthurworrey in November 1999 of allegations made in early November 1999 that Victoria Climbié had been sexual abused and the case file revealing that there was a real risk of serious harm to Victoria, allegedly failed to supervise Ms Arthurworrey properly (a) by ensuring that all of the tasks identified at the strategy meeting on 5th November 1999 had (i) been promptly undertaken and (ii) been completed; and (b) by ensuring that she had made contact with, or taken all reasonable steps to make contact with, Victoria Climbié.  This was the alleged “follow-through misconduct”.

119.	The Tribunal was not satisfied that the applicant was guilty of the alleged  “pre-session misconduct”.

120.	The applicant had no responsibility for the supervision of Victoria’s case until 8th November 1999.  Before that date she had not been involved in the matter and had been fully engaged in dealing with other matters, many of which were probably equally complex and difficult.  On 8th November 1999 the situation in the NTDO was chaotic.  Ms Baptiste was often absent.  She did not make herself available to hand over cases for which she had had responsibility to the applicant. Those who were eligible to apply for the new Practice Manager posts had not been interviewed and there was a continuing dispute about the duties that those appointed would be expected to undertake.  There was such discontent that, within a few weeks, the trade union would deem it necessary to take “industrial action”. It appeared to the applicant that, if she did not do something, the senior practitioner (Mr Almeida) and the 6 social workers from Ms Baptiste’s team would be without any supervision.  Whatever her motivation, the applicant took on an impossible task.

121.	The applicant arranged meetings with some, if not all, of the social workers.  It is not clear whether the session with Ms Arthurworrey was the first of such meetings but, in any event, the applicant would have had no opportunity, in the 5 working days between 8th November and 15th November 1999 (both dates being Mondays) to pre-read all of the case files.  At best, she would have restricted her reading to the files kept by those social workers whose competence she had reason to doubt. 

122.	In fact, the applicant did not read any of the files.  She placed trust in those who had compiled the files to draw to her attention any relevant matter.  With the very considerable benefit of retrospection, it is now apparent that, in the case of Ms Arthurworrey, this was most unwise.  However, at the time, the applicant had reason to believe that Ms Arthurworrey was enthusiastic and reasonably competent.  The applicant did know that, in the preceding months, there had been concerns about the performance of Ms Baptiste but that knowledge would not necessarily have prompted her to conclude that Ms Arthurworrey and others had probably fundamentally misunderstood the cases in which they were involved.  Mr Duncan had acknowledged in writing that the applicant and others were experiencing “a difficult time” and had invited the applicant to do the best she could.  Thus, he impliedly, if not expressly, authorised the applicant to proceed with supervision sessions the preparation for which would be less than optimal.

123.	In all these circumstances, it was not unreasonable of the applicant to summon Ms Arthurworrey to a meeting without pre-reading the files in respect of the 16 “live” cases on which she was working.  Indeed, it would have been impossible for the applicant to have done anything more than that.  She should have instructed Ms Arthurworrey to bring those files with her to the meeting.  Whether she did so or not, it appears that Ms Arthurworrey did have the files to hand during the meeting.

124.	The Tribunal found it impossible to determine exactly what happened during that part of the supervision session devoted to consideration of Victoria’s case.  There is no reliable evidence, other than the notes made by the applicant, of what transpired.  Neither Ms Arthurworrey nor the applicant had occasion to consider or set out their respective recollections until more than 3 months after the event.  It appears that, in the intervening period, Ms Arthurworrey may have been asked by Ms Kozinos to relay to her what the applicant had said but it also appears that, in so far as she gave any account of the 15th November meeting to Ms Kozinos, she did so in only the most general terms.  When Ms Arthurworrey and the applicant were prompted to recall what had transpired they were inevitably driven to undertake reconstructions that were self-justifying.  The Tribunal concluded that neither Ms Arthurworrey nor the applicant had any precise recollection of what they said or heard during the supervision session.  When giving evidence to the Part 8 Inquiry, to Mr Monaghan and to the Laming Inquiry they probably related matters which they had convinced themselves must have happened, motivated by an entirely understandable desire to limit their own culpability in the face of the distressing consequences of their apparent omissions.

125.	The notes of the meeting made by the applicant give rise to more questions than they provide answers.  The notes were given extensive and exhaustive consideration by the Part 8 Inquiry Panel, by Mr Monaghan and by Lord Laming and his Inquiry team.  The Tribunal shared Lord Laming’s difficulty in accepting the applicant’s assertion that nothing was said to her about the events of 1st, 2nd and 5th November 1999 but were equally troubled by the proposition that, if Ms Arthurworrey had “fully up-dated” the applicant as she contended, the applicant would have directed the actions recorded in her notes.  The Tribunal accepted that there is very considerable force in the applicant’s contention that it is inconceivable that she would have directed Ms Arthurworrey to proceed to close the file if she had been told that there had, only 10 days before, been a strategy meeting at which it had been decided that a Child Protection Conference should be convened and that such a Conference had not taken place.

126.	Not having seen or heard from Ms Arthurworrey, the Tribunal was reluctant to make any findings about her evidence and did not do so.  However, the Tribunal was unable to share or adopt the view that she had no reason to withhold information about the recent strategy meeting from the applicant.  It is apparent that, in the 7 working days from 5th November to 15th November (inclusive of those dates), Ms Arthurworrey completed only one of the several tasks set for her by the strategy meeting.  She did “complete a check with France” but she did not embark upon the “full assessment on [the] child” in connection with “neglect issues” or “talk to the child on her own with mother’s permission” or arrange to do so.  She apparently did nothing to institute the required “complete check re medical” nor did she arrange the required “joint home visit” with the Police Child Protection Team.  Most significantly, she did not “book” the Child Protection Conference.  This was an action which, if she had been following normal practice, she would have taken immediately after the decision to convene such a Conference.  In these circumstances it is possible that Ms Arthurworrey chose not to give a full account, fearing that the applicant might be harshly critical of her inaction and hoping that she would be able to “catch up” later and so avoid censure.

127.	The notes made by the applicant indicate that Ms Arthurworrey opened the discussion of Victoria’s case by saying that there had been a child protection investigation and that there had been some concerns but that these had been dismissed.  This was true as far as it went and so need not have given rise to any suspicion of inaccuracy.  The fact that Victoria was not attending school was probably mentioned next, provoking the applicant to suggest an appropriate reference to the Education Welfare Service.  The Tribunal was unable to reach any conclusion as to why the applicant next wrote “permission to interview child on her own” but did observe that, in other supervision notes made in respect of other cases at that time, the applicant frequently issued this instruction, almost in a formulaic manner.  The notes: “discuss bed wetting with G.P.” and “refer to Family Centre bereavement counselling” were presumably made when Ms Arthurworrey mentioned that Victoria was suffering from or had suffered from enuresis and that her father had recently died.  Thus far there would have been little arising from Ms Arthurworrey’s verbal report to alert the applicant to the possibility that the case was worthy of closer attention.

128.	However, the Tribunal was perplexed by the fact that the applicant made a note referring to a “closing summary” before further notes referring to the completion of the care plan and the completion of the “decision (sic) of the strategy meeting” and the final note that the work was to be “completed by 17-12-99”.  The Tribunal also noted that, in her written evidence, the applicant chose to rearrange the order of her notes and to place the “closing summary” note in the penultimate position rather than in the earlier position in which it actually appears in the original document.

129.	The notes indicate that Ms Arthurworrey probably only mentioned the fact that there had been a strategy meeting or meetings after the applicant had formed the view that this was a case where a “closing summary” might soon be appropriate.  The Tribunal was unable to make any finding as to whether the reference to ”the strategy meeting” was a reference to the 28th July meeting or to the 5th November meeting or to both.  However, at that point, the applicant could easily have looked at the file (which Ms Arthurworrey either had open in front of her or nearby) and, if she had done so, she would have discovered, within seconds, that the case was not, as she had previously surmised, almost ready for closure but was one where there was evidence of serious emotional abuse, if not sexual and physical abuse, of a 7-year old child by a woman whose status as her mother was regarded as doubtful and a man who was unrelated to her and resentful of her presence in his home and that all of this had yet to be investigated properly or at all.

130.	The Tribunal was thus driven to the conclusion that the applicant fell below the standard of conduct expected of her as a Team Manager on 15th November 1999.  On her own admission she did not look at the file and she did not sign and print her name in the file to show that she endorsed the decisions taken, as required by the Borough’s published “Case Recording Policy”.  Further, she did not press Ms Arthurworrey for further information about the case when she was given cause to believe (on either of the versions of the events) that there was still work to be done.  The document that the applicant did sign was inadequate and was presumably only inserted in the file later by Ms Arthurworrey.  The applicant missed an opportunity to (in Lord Laming’s words) “get a management grip on the case through supervision” and simply pressed on to consideration of the next case presented to her.  This had appalling consequences.  Although the horrific developments were not foreseeable at the time, if the applicant had looked at the file and had pressed Ms Arthurworrey to give further and better particulars of the evidence obtained and the actions planned but not implemented, she would have seen that, if no steps were taken to protect Victoria, she would be likely to suffer further, significant harm of some kind.

131.	Accordingly, the Tribunal was satisfied that the applicant was guilty of the alleged “session misconduct”.

132.	The Tribunal was satisfied that the applicant’s misconduct placed a child (Victoria) at risk of harm in the sense that, by failing to take proper action, she caused or permitted the child to remain in harm’s way.  The Tribunal rejected Ms Connelly’s submission that there was a break in the chain of causation because others subsequently missed further opportunities to prevent harm to Victoria.  When considering the causal link between the omission and the potential harm the Tribunal had to consider what would have happened if the applicant had not been guilty of misconduct, not what did happen when she was guilty of misconduct.  If the applicant had conducted a proper supervision there would certainly have been a Child Protection Conference.  Such a conference would have been chaired by an experienced, independent practitioner (probably Mr Peatfield) and the medical evidence would have been re-visited.  A recommendation for emergency protection and care proceedings would have followed and Victoria would have been quickly removed from Mr Manning’s flat and it would have been discovered, belatedly, that Ms Kouao was not only a devious and desperate woman but was also not the mother of the child for whom she was purporting to care.

133.	However, the Tribunal was far from finding that the applicant was the only person responsible for the failure to prevent harm to Victoria.  The Tribunal was only concerned with the applicant’s case and therefore focussed attention on her alleged failings.  However, the applicant had only a very limited role and the failures of very many others also led to the lamentable failure to prevent Victoria’s death.

134.	While satisfied that the Secretary of State discharged the burden of proving that the applicant was guilty of the alleged “session misconduct”, the Tribunal was not satisfied that the applicant was guilty of the alleged  “follow through” misconduct.  Having conducted the “one off” supervision of Ms Arthurworrey, the applicant properly and expeditiously arranged for Ms Kozinos to take on her further supervision, in accordance with the plan for the restructured NTDO.  It was then Ms Kozinos’ task to ensure, so far as possible, that Ms Arthurworrey was properly carrying out her prescribed tasks.  It was not suggested on behalf of the Secretary of State that the applicant was guilty of further misconduct that harmed a child or placed a child at risk of harm by failing properly to supervise Ms Kozinos.  In any event, it was apparent that, when she handed responsibility for the case over to Ms Kozinos, the applicant had (whether she fully understood it or not) a sound basis for suggesting that such a delegation was appropriate since Ms Kozinos had chaired the earlier strategy meeting; had had direct experience of the case (in that she had received Ms Kouao when she attended the office to retract her allegations against Mr Manning on 2nd November 1999) and had chaired the strategy meeting on 5th November 1999.

135.	The Tribunal was not invited to, and did not, investigate or consider what passed between Ms Kozinos and Ms Arthurworrey during December 1999 and thereafter.  Further, it was not suggested that any alleged misconduct by the applicant in February 2000 (in closing the file without reading it or in removing documents from the file in an attempt to deflect criticism from herself and others) was misconduct that harmed a child or placed a child at risk of harm for the sound reason that, by 25th February 2000, Victoria was terminally ill and already in the care of the staff of the North Middlesex Hospital.  In those instances, the necessary causal link between the misconduct and the harm to a child would have been impossible to establish.

136.	Further, the Tribunal was not satisfied that the applicant is unsuitable to work with children.

137.	The Tribunal accepted the proposition put forward by Mr Coppel that it should, in this case, consider carefully (i) the gravity of the misconduct proved; (ii) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential of harming a child; (iii) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct and (iv) the extenuating circumstances surrounding the misconduct.

138.	The Tribunal concluded that the “session misconduct” of which the applicant was guilty was not grave.  She undertook the task of supervising Ms Arthurworrey in very difficult circumstances.  If she had chosen to resist Mr Duncan’s suggestion that she should try to give some support to the social workers previously left largely unsupported by Ms Baptiste, she would have been able to defend her position.  The disarray or chaos into which the NTDO had descended in November 1999 was not of her making and she could readily have been forgiven for suggesting that her responsibilities for the acting senior practitioner (Ms Kozinos) and the 8 social workers in her team as previously constituted were more than sufficient to keep her fully occupied.  The failure of senior managers to recruit the Practice Managers who were to be important links in the chain of command created a wholly unsatisfactory situation.  The applicant should not have undertaken a perfunctory supervision of Ms Arthurworrey but it was hardly surprising that she did so.

139.	Supervision is, as Mr Coppel submitted, an integral part of a Team Manager’s duties and it is one of a Team Manager’s paramount obligations but this particular supervision session was, with the benefit of hindsight, doomed to failure because of circumstances outside the applicant’s control.  She had insufficient time to prepare, no briefing from her predecessor and no proper co-operation from the supervisee.  She failed to overcome these difficulties by strict adherence to the professional code which was binding upon her but she can properly point to very considerable mitigating circumstances.

140.	The Tribunal rejected the suggestion that the applicant has continued to downplay the significance of her culpability.  As Ms Connelly submitted, the applicant does not say that her involvement should not be criticised nor does she deny that she must shoulder some responsibility, collectively with others, for failing Victoria.  On the contrary it appears that the applicant has probably been prepared, at least privately, to take more of the blame for what happened than she deserves.  

141.	 The applicant has maintained that she was not told about the 5th November strategy meeting and the allegations of sexual abuse but the Tribunal was unable place any weight upon this in relation to the issue of her suitability to work with children because it was not persuaded that she was in fact given a full account of that meeting and the matters that provoked it.  In any event, the applicant’s inability to accept that she would have been so remiss as to recommend the preparation of a closing summary if she had been fully informed in the manner alleged by Ms Arthurworrey should be regarded as an understandable, human reaction to the magnitude of the implications of the opposite hypothesis.

142.	The Tribunal was not persuaded that the applicant is dishonest in the sense that she makes assertions that she knows to be false.  At worst, she may be guilty of a failure to recognise an awful reality and a failure to accept that she cannot remember precisely what she did on 15th November 1999 or why she did it.  The applicant has, or perceives that she has, been subjected to unmerciful public condemnation.  Her defensive reactions and posture should, in those circumstances, be met with understanding and sympathy.  They do not show that the applicant is unsuitable to work with children.

143.	The applicant has continued to contend that it was impossible to “read through” files in advance.  The Tribunal accepted that contention as sound.  The applicant has not ignored the distinction between that and the perfectly possible “flicking through” or “looking at” a file.  On the contrary, she has accepted that she could and should have examined the file in that way.  She protests that she was given no reason to do so by way of mitigation of her offence in breaching the relevant code and the terms of her employment.  The Tribunal found this to be valid mitigation.  The protest does not represent contemptuous rejection of those who found her conduct astonishing.

144.	The Tribunal rejected the submission that the applicant has not “squared how she would, if permitted, juggle the ‘work pressures’ that she continues to maintain made doing her job impossible” with doing a better job with children than she did whilst with the London Borough of Haringey.  The applicant has obviously given careful attention as to how she might avoid a repetition of the errors which turned out so disastrously for her.  With understandable exaggeration she asserted that she would read every file very carefully and would make comprehensive notes of every supervision session if she were ever permitted to work as the manager of a social work team.  The Tribunal found this to be unrealistic but accepted that the applicant would resist any temptation to “cut corners” or abandon professional standards in the interests of expediency if she were ever in employment with similar duties.

145.	In this context, the Tribunal also noted that there are very many jobs involving work with children that do not carry with them “work pressures” of the kind encountered by the staff of the NTDO in 1999.  The Tribunal saw no reason to conclude that the applicant would be unsuitable to undertake such jobs because of any inability to perform properly under pressure.  The applicant was generally able to maintain her professional standards in the face of the pressures imposed upon her from 1997 to 1999 and there is no evidence that she fell below those standards on any occasion other than in November 1999, when the pressures were extreme and unprecedented.  

146.	The serious allegation that the applicant attempted to “cover up” her dealings with Victoria’s file by removing the closing summary and the sheet bearing her authorisation of its closure could, if proved, have amounted to some evidence of unsuitability to work with children.  However, the Tribunal was specifically relieved of the burden of determining whether the applicant was guilty of this offence and so made no finding about the matter.  Accordingly, the Tribunal could not properly give any weight to the suspicion that this might have happened or the fact that others have accepted the evidence presented to them on this point by witnesses other than the applicant.  If circumstances had been otherwise and the Tribunal had been invited to find and had found the case against the applicant proved in relation to this charge, it would not have taken this to be conclusive evidence of unsuitability to work with children.  Self-protective actions taken in times of panic are not necessarily a reliable indicator of a propensity to harm children or to act in a manner that would be harmful to them.

147.	The extenuating circumstances surrounding the applicant’s misconduct were very extensive.  They do not excuse her failure but they provide a compelling explanation for it.  The Tribunal was quite unable to accept that the applicant’s uncharacteristic failure properly to perform a task that was probably beyond the call of her duty and which was made exceedingly difficult by the abject failures of others, gives any clue as to her suitability to work with children.

148.	All of the other evidence as to the applicant’s character, disposition, capacity and ability, including her ability to act properly in potentially difficult or frustrating circumstances, is to the effect that the applicant is a person who should be regarded as entirely suitable to work with children.  In her early years as a social worker she did work directly with children and was warmly commended for the way in which she did so.  The applicant’s record as a residential care worker, field social worker and team manager is unblemished both before November 1999 and after February 2000.

149.	The Tribunal also had regard to the reasoned conclusions of Mr Duncan, Mr Peatfield, Dr Burke, Ms Rutter and Ms Davy, all of whom know the applicant well, that she does not represent any risk to children.

150.	Accordingly, while the Tribunal was satisfied that the applicant was guilty of misconduct which placed a child at risk of harm it was not satisfied that she is unsuitable to work with children.  The Tribunal therefore decided to allow the applicant’s appeal.

151.	The decision of the Tribunal was unanimous.

Order

The applicant’s name shall be removed from the list kept under section 1 of the Protection of Children Act 1999.

15th November 2004

Signed

John Reddish
(Chairman)
Margaret Diamond
John Williams