Mr Justice Leveson :
- Following the death of Victoria Climbié on 25 February 2000, comprehensive investigations were undertaken in relation to the failure of child protection agencies to prevent the tragedy. Those agencies included the Social Services Department for the London Borough of Haringey which, in July 1999, became involved in Victoria's welfare and protection following her admission to hospital and the expression of concern that she had suffered non-accidental injury. The social worker nominated to assume responsibility for the case was Ms Lisa Arthurworrey: in November 1999, she became part of a team of social workers managed by the Respondent, Ms Angella Mairs.
- Two local inquiries were completed comparatively quickly. A Review Panel set up under Part 8 of "Working Together to Safeguard Children" reported to Haringey Area Child Protection Committee in October 2000 and an investigation into professional conduct of the officers of the Haringey's Housing and Social Services Department (conducted by Mr Bernard Monaghan, a Senior Manager with the Family Welfare Association) reported in May 2001. Both inquiries had interviewed Ms Arthurworrey and Ms Mairs. The result of the latter inquiry was that disciplinary proceedings were commenced against a number of members of the professional staff including Ms Mairs.
- In September 2002, a disciplinary hearing was convened in relation to Ms Mairs which, for reasons that do not matter, she declined to attend. The upshot was that she was dismissed for gross misconduct. That misconduct included, among other things, a conceded failure to provide management direction to social workers managed by her. For present purposes only one other aspect of the gross misconduct found proved must be mentioned. This is that she failed to act upon knowledge in relation to Victoria Climbié that it was concluded that she had gained on 15 November 1999 at a supervision session with Lisa Arthurworrey. It was also found that she had misled the Part 8 Inquiry by denying this knowledge (which had resulted in that Inquiry accepting that she was "unaware of the allegations until after [Victoria's] death"). This dismissal was then reported to the Department of Health which was then charged with duties under the Protection of Children Act 1999 ("the 1999 Act") to which I shall return.
- In January 2003, the most wide ranging of the investigations into the events surrounding Victoria Climbié's life and death published its report. In April 2001, Lord Laming had been appointed to undertake three separate statutory enquiries (under the Children Act 1989, the National Health Service Act 1977 and the Police Act 1996). That also focussed on, among others, Haringey Social Services. Both Ms Mairs and Ms Arthurworrey had given evidence, been represented and made submissions to Lord Laming. Ms Mairs had been a represented witness; Ms Arthurworrey an interested party.
- Meanwhile, consideration was given to other steps that could be taken against Ms Mairs and others. Following further representations, acting pursuant to section 2 of the 1999 Act, on 27 September 2003, the Secretary of State for Education and Skills, as the then responsible body, directed the provisional inclusion of Ms Mairs' name in the list kept under section 1 of the 1999 Act of people considered unsuitable to work with children. That listing was later confirmed and has very significant impact upon the type of work that she can undertake. It is important to underline immediately, however, that the listing was made as a result of Ms Mairs' dismissal for misconduct (that is, section 2 of the 1999 Act) and not because she had been found in a relevant statutory inquiry to be guilty of relevant misconduct (section 2B).
- Although not challenging her dismissal, under section 4(1)(a) of the 1999 Act, Ms Mairs appealed to a Care Standards Tribunal against the decision to include her within the list. Thus, by section 4(3), it fell upon the Secretary of State to establish, on the balance of probabilities, both that she was guilty of misconduct which harmed a child or placed a child at risk of harm and that she was unsuitable to work with children. That Tribunal had before it all three of the reports to which I have referred.
- Over a period of 6 days between 25 October and 1 November 2004, the Tribunal heard evidence (from Mr Monaghan, Ms Mairs and others, but not Ms Arthurworrey). By reserved decision, it concluded that, in one particular respect but not others, the Respondent was guilty of misconduct which placed a child at risk of harm. In particular, it decided that it was not satisfied that Ms Mairs was told on 15 November 1999 of (i) the sexual harm allegations made by Victoria Climbié on 1 November; (ii) the retraction of the following day or (iii) the meeting relating to her held on 5 November (which I shall describe collectively as "the events of early November"). On the basis of the limited misconduct found, the Tribunal went on to determine that it was not satisfied that she was unsuitable to work with children. Given that both limbs must be established to maintain the listing, the appeal was allowed and an order made that her name be removed from the list.
- Pursuant to section 9(6) of the 1999 Act, the Secretary of State now appeals to the Court such appeal being limited to a point or points of law. In support, Mr Philip Coppel contends that there was no basis upon which the Tribunal should properly have rejected the allegation that Ms Mairs was aware of the events of early November thereby placing Victoria at risk of harm (or alternatively that its reasons for so doing were manifestly inadequate). On this basis, he argues that the misconduct was such that it would have been proper to conclude that she was unsuitable to work with children (although, in that event, the matter would have to be remitted to be reheard by a new Tribunal). Ms Barbara Connolly for Ms Mairs, on the other hand, submits that the conclusion reached by the Tribunal was open to them and that no error of law is or can be demonstrated.
The Background Facts
- With that rather lengthy exposition of the procedural background to this appeal, I must summarise the facts leading up to the all important meeting of 15 November around which this appeal turns.
- Victoria Climbié first came to the attention of Social Services following her hospitalisation between 14-15 July 1999 at Central Middlesex Hospital and 24 July – 6 August at North Middlesex Hospital: some of the medical staff reported doubting whether her injuries were accidental. As a result, on 28 July 1999, a strategy meeting was held at Haringey's North Tottenham District Office where the consensus was that this child protection case needed thorough investigation. Eighteen recommendations were made. The case was allocated to one (of two) investigation and assessment teams and, on 30 July, the then team manager, Ms Carole Baptiste, gave the responsibility of the case to a member of her team, Ms Arthurworrey. At that time, Ms Mairs was the team manager of the other investigation and assessment team.
- For the purposes of this case, it is not necessary to examine all the detail of what happened over the following months because it is common ground that the investigation and oversight had nothing to do with Ms Mairs. The events of early November are, however, important. On 1 November, after a telephone call, Victoria Climbié along with her great aunt, Ms Marie-Therese Kouao (who was then believed to be her mother) and Carl Manning (in whose flat they were staying) attended the North Tottenham District Office where Ms Kouao alleged that Mr Manning had sexually assaulted Victoria on three separate occasions. It was decided to hold a strategy meeting. The following day, and before the meeting could be arranged, Ms Kouao returned with Victoria and sought to retract the allegations. That did nothing to lessen the need for a meeting.
- So it was that on 5 November, a second strategy meeting was held attended by a senior practitioner then on duty, Rose Kozinos, Ms Arthurworrey and two police officers. Fifteen recommendations were made the precise nature of which was to figure very prominently in the subsequent analysis of what Ms Mairs was later told. In particular, work that needed to be undertaken included "(8) Talk to child on her own with mother's permission; (9) Need to explore issues of schooling; … (11) Explore issues of [Victoria] bedwetting and bereavement of father". It was Ms Arthurworrey's duty to address these and the other items of work.
- On 8 November 1999, a pre-planned restructuring exercise was undertaken at the North Tottenham District Office which caused, and was to continue to cause, concern and disruption. Essentially, the two investigation and assessment teams merged and Ms Mairs who had been responsible for one team was placed in overall charge of the entire group as Team Manager. A layer of management between the Team Manager and the social workers (to be known as Practice Managers) was not appointed until December and so Ms Mairs had to manage on her own. It is right to record that the Tribunal described this assumption of responsibility for all the social workers in this office as "an impossible task". It was, in fact, Ms Mairs' first contact either with Ms Arthurworrey or any of the cases for which she was responsible.
- Ms Mairs took her duties seriously and, notwithstanding the absence of any Practice Managers, conducted supervisory sessions with a number of social workers. She met Ms Arthurworrey on 15 November on the basis that supervision would thereafter to pass to another member of her team whom it was anticipated would be appointed as one of the practice managers. The meeting lasted about 1½ hours; it was agreed both by Ms Mairs and Ms Arthurworrey that they spent about 5 minutes discussing the case of Victoria Climbié. Although the file had been brought into the session, Ms Mairs neither read nor looked at it.
- Beyond those facts, there is a fundamental conflict in the evidence between Ms Mairs and Ms Arthurworrey as to what was said at this meeting. Ms Arthurworrey says that she told Ms Mairs of the events of early November; Ms Mairs emphatically denies that she did. The only contemporaneous note (written by Ms Mairs) records what is described as "Action Supervision Decision 15.11.99" in this way:
"1. CP investigation NFA
2. Refer to EWO
3. Permission to interview child on her own
4. Discuss bed wetting with GP
5 Refer to family centre bereavement counselling
6 Closing summary
7 Complete care plan
8 Complete decisions of strategy meeting
9 Work completed by 17/12".
- This dispute has been highlighted in each of the investigations. The Part 8 Enquiry focussed on the intention expressed in the note to close the case and expresses the view that it seemed extremely unlikely that a social work manager would recommend case closure during a section 47 investigation. Mr Monaghan highlighted the issues that had been raised in the Strategy Meeting minutes of 5 November which were also referred to in the note of the Action Supervision decision.
- The Secretary of State laid particular emphasis on the view expressed by Lord Laming. This was in these terms:
"6.464 Ms Mairs has persistently denied that she was ever told about the sexual harm allegations at the 5 November strategy meeting during her only supervision with Ms Arthurworrey about Victoria. In questioning, she did not accept that she could have misunderstood what she had been told. She told the Inquiry that if she had been told she would have written it down, and she would have been far more concerned about the case and that the decisions that she made in supervision, while valid, would not have gone far enough. Nor could she have expected the work to have been finished by mid December as the case would have had to go to case conference.
6.465 Having reviewed the evidence I find it hard to accept the accuracy of Ms Mairs' statements in this matter. It seems inconceivable that Ms Arthurworrey would not have updated Ms Mairs about the November sexual abuse allegations, or told her about the second strategy meeting, especially as these events had occurred so recently and Ms Arthurworrey has consistently expressed throughout her evidence the need for confirmation and direction from her managers. I accept that no mention of sexual abuse would have been made if Ms Arthurworry was simply reading from the November strategy meeting recommendations because those words do not appear. However, Ms Arthurworrey would have had no motive for not mentioning these allegations or that there had been a strategy meeting as recently as 10 days ago.
6.466 It was clearly Ms Mairs' job, as supervisor, to know about the key milestones in the case. Moreover, 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. I am 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 follows, therefore, 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."
- At the heart of the appeal is an argument about the impact which conclusions reached by Lord Laming should have had on the tribunal and, more particularly, the extent that it was open for the tribunal to go behind those decisions. Before passing on to set out how the Tribunal dealt with the same issue, it is worth making a number of general points. First, the features in the note to which Lord Laming was referring as similar to points raised in the November strategy meeting and not raised in July were those numbered 2-5: "Refer to [Educational Welfare Officer]" ("Need to explore issues of schooling"); "Permission to interview child on her own" ("Talk to child on her own with mother's permission"); and "Discuss bed wetting with GP… Refer to family centre bereavement counselling" ("Explore issues of [Victoria] bedwetting and bereavement of father").
- The second point to make is that although both Ms Mairs and Ms Arthurworrey gave evidence before Lord Laming, he did not express his conclusions to be a consequence of how each gave their evidence, precisely what they said, or otherwise by reference to their credibility on this issue. Although he observed that when Ms Mairs came to give oral evidence concerning what Ms Arthurworrey told her in supervision "she appeared confused" (6.452) and he rejected her evidence in relation to the subsequent removal of a document from the file, expressing the view 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" (6.549), he also rejected the evidence of Ms Arthurworrey on certain matters (see, for example, 6.426) which is also said to impact on her credibility. Rather, it is clear that he reached his conclusion based on the inference from the fact that Ms Arthurworrey clearly mentioned some of the matters raised in the November strategy meeting and had no motive not to mention the sexual allegation.
- For the sake of completeness, it is appropriate briefly to summarise what happened thereafter. On 30 November, Ms Mairs passed the supervision of Ms Arthurworrey to Ms Kozinos who was appointed (on 24 December) her Practice Manager; coincidentally, Ms Kozinos had chaired the meetings on 5 November on 28 July and on the basis that she was then on duty. On 18 February 2000, Ms Arthurworrey completed a closure summary form in relation to the case. Six days later, Victoria was admitted to hospital where, the following day, she died. On 12 January 2001, Marie-Therese Kouao and Carl Manning were convicted of her murder.
The Tribunal
- Before the Tribunal, the Secretary of State relied upon three categories of misconduct. The first ("pre-session misconduct") was said to arise in the period before the supervision session as a consequence of Ms Mairs' failure to read the case file from which it should have been apparent that there was a real and continuing risk of harm. The second ("session misconduct") concerned the supervision session of 15 November 1999 itself and the failure properly to identify the decisions of the two strategy meetings along with those matters which required immediate attention in order to avoid risk of further harm to Victoria. The third ("follow through misconduct") proceeded on the premise that Ms Mairs knew about the allegation of sexual abuse and the real risk of harm and concerned the failure to supervise Ms Arthurworrey properly to ensure that all the tasks identified at the 5 November strategy meeting were promptly undertaken.
- In its decision, the Tribunal described the material facts found (although in that section dealt only with what might be described as non contentious facts) and included a summary of the three reports; it set out the law (to aspects of which I shall return) and then dealt, again in detail, with the respective contentions advanced on behalf of the Secretary of State and Ms Mairs. It then came to its conclusions and reasons. As to pre-session misconduct, it decided that the situation at the North Tottenham District Office at the time was "chaotic" and that "it was not unreasonable of [Ms Mairs] to summon Ms Arthurworrey to a meeting without pre-reading the files … indeed, it would have been impossible". The Secretary of State does not challenge this conclusion.
- As to "session misconduct", it is necessary to set out the reasoning of the Tribunal in some detail before analysing the challenge. The Tribunal put the matter this way:
"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."
- The Tribunal analysed the notes further and went on to conclude that Ms Mairs did fall below the standard of conduct expected of her by failing to look at the notes at the time or press Ms Arthurworrey for further information when she was given cause to believe that there was still work to be done. It concluded that this misconduct did place Victoria at risk of harm but that, having arranged for Ms Kozinos to assume responsibility for Ms Arthurworrey and her cases, she was not guilty of "follow through" misconduct; on the basis that Ms Mairs did not know of the events of early November, that assessment is not challenged; the Secretary of State's case, however, is that she did know and that, as a consequence, she should have done more (so that this decision was also in error). Everything, however, turns on what Ms Mairs learnt on 15 November.
- It is of significance that the Tribunal did not specifically find as a fact that Ms Mairs was not told about the events of early November; rather the finding is to the effect that it was not sure that she was told. It returned to the question when considering whether she was unsuitable to work with children and said:
"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 to 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."
The Challenge
- Referring to the Tribunal's description of the 15 November supervision session as "a fundamental dispute", Mr Coppel first criticises the Tribunal for failing to articulate a clear finding whether or not Ms Arthurworrey did tell Ms Mairs about the events of early November. He accepts that the conclusion reached by the Tribunal can be deduced from various parts of its decision but, observing that the Tribunal must ensure that it "asks itself the correct questions and then provides intelligible answers to those questions" (per Sullivan J in R v. Jones ex parte National Care Standards Commission [2004] EWHC 918 (Admin) para 18) submits that this failure represents a clear error of law.
- I do not agree. The Tribunal "found it impossible to determine exactly what happened during that part of the supervision session devoted to consideration of Victoria's case" (paragraph 124) and "was not persuaded that [Ms Mairs] was in fact given a full account of that meeting [on 5 November] and the matters that provoked it" (paragraph 141). Whether justifiably or not, the Tribunal was expressing itself not satisfied, on the balance of probability, that Ms Mairs was told of the events of early November: it was common ground that the burden of proof rested upon the Secretary of State and the Tribunal made it clear that this burden had not been discharged. Given that Mr Coppel readily recognised that their view could be deduced from various passages of the decision, this complaint is not one of substance.
- I turn to the second and most substantial ground of appeal. This revolves around the submission that the Tribunal's conclusion about Ms Mairs' knowledge "displaced" the conclusion reached by Lord Laming and the findings on which that was based without having grounds to do so and without providing any or any adequate reasons for doing so. Mr Coppel argues that the Tribunal failed to follow its own correct analysis of the law in relation to the impact of the findings of Lord Laming's enquiry which was in these terms (at paragraph 110):
"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."
- Mr Coppel argues that the Tribunal failed to follow its own guidance and, in reality, did act as a court of appeal from the Inquiry. Thus, he submits as follows:
i) The Tribunal pronounced itself unable to find that Ms Mairs was told about the events of early November, yet failed to provide adequate reasons for displacing Lord Laming's conclusion that the two had discussed the November strategy meeting.
ii) The Tribunal considered that Ms Arthurworrey did have a motive for withholding information about the events of early November but did not give adequate reasons for not accepting Lord Laming's conclusion to the contrary.
iii) Lord Laming rejected Ms Mairs contention that she would not have misunderstood the gravity of the matter had she been told about the events of early November and would have written it down; the Tribunal, so it is argued, accepted that contention without adequate reasons.
iv) Although Lord Laming concluded that the notes of the 15 November supervision referred to the 5 November strategy meeting, the Tribunal (without adequate reasons) expressed itself unable to make any findings as to whether it referred to the 28 July meeting, the 5 November meeting or both.
v) Lord Laming considered that the entries in the note "closely mirror recommendations that emerged from the [5 November] strategy meeting" whereas the Tribunal had been "unable to reach any conclusion as to why [Ms Mairs] wrote 'permission to interview child on her own' without explaining the reasons for its decision.
vi) Lord Laming's observation that if Ms Mairs had believed that the strategy meeting had been in July, she would have been concerned that "almost five months had elapsed and the outstanding work was not now going to be completed before mid-December" was different to the view expressed by the Tribunal that "thus far [up to point 5 of the notes] there would have been little arising … to alert to the possibility that the case was worthy of further attention" and no explanation was advanced for that difference.
- Ms Connolly argues that the Tribunal's reasons for expressing itself not satisfied that Ms Mairs had been told about the events of early November were sound, clear and justified, in law and fact. Although to a more limited extent than had Lord Laming, she submitted that the Tribunal had accepted his finding that she fell below the standard of conduct expected of her (paragraph 129) and thereby "missed an opportunity to (in Lord Laming's words) get a management grip on the case through supervision" (paragraph 130). She answered the points made by Mr Coppel in this way:
i) It was entirely appropriate to consider that Ms Mairs' contemporaneous notes of the 15 November meeting raised more questions than answers; the meeting had taken five minutes only and nobody considered them further until after Victoria's death. Further, Lord Laming had not suggested that either had a specific reason to recall.
ii) The Tribunal was entitled to consider that there could have been a reason to withhold information about the events of early November: Lord Laming did not consider Ms Arthurworrey's stated impression of the case being one of child support (with the sexual allegations being a ploy to obtain housing) or her lack of energy to put the recommendations in place.
iii) The Tribunal (at paragraph 125) shared Lord Laming's difficulty in accepting that Ms Mairs was not told of the events of early November but, equally, was entitled to rely on the unlikelihood of her limiting her directions to those in the notes and, even more, to directing the closure of the file with a child protection conference still to be convened (which proposition did not appear to have been considered by Lord Laming).
iv) Although Lord Laming considered the extent to which the supervision notes 'mirrored' the 5 November strategy meeting, the Tribunal were also entitled to undertake this exercise of analysis and they did so in a detailed, reasoned, logical and justifiable way.
v) The Tribunal was entitled to look at other supervision notes and to consider that the instruction "permission to interview child on her own" is frequent and almost formulaic, thereby diminishing its significance.
vi) 5 months had not passed since 28 July, but only 3½ months. Further, as the Secretary of State did not challenge the limited pre-session misconduct (and thus the finding that Ms Mairs had reason to believe that Ms Arthurworrey was enthusiastic and reasonably competent) it was open to the Tribunal to conclude that she need not have had concern.
- I have set out the two competing contentions in detail to underline the nature of the dispute: this appeal has not been focussed upon a detailed analysis of what Ms Mairs did or did not do, or what conclusions it was open to the Tribunal to reach about her, but rather upon a critique of the decision of the Tribunal compared to that of Lord Laming. The Secretary of State argues that the Tribunal has not shown good enough reasons for distinguishing the views of Lord Laming and, on that basis, and its own analysis of the law ("very substantial weight to findings of a Public Inquiry" and not acting as a court of appeal from the inquiry) the findings cannot stand.
- I must start with a consideration of the law. The propositions set out by the Tribunal repeat principles that emanate from earlier decisions of the Care Standards Tribunal: see 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. These were concerned with cases that originated following the Inquiry into the abuse of children in the former County Council areas of Gwynedd and Clwyd (Chairman: Sir Ronald Waterhouse) where the same point (namely, the impact of the conclusions of an Inquiry upon the hearing before a Tribunal) arose. No authority is cited in any of these decisions. In at least one, Mr Coppel appeared for the Secretary of State but he did not suggest that any particular analysis of law foreshadowed the enunciation of these principles.
- To justify the contention that the legal principles adopted by the Tribunal were correct, Mr Coppel approached the matter against a background of res judicata and a form of issue estoppel. Although not pursued by the end of his submissions, in his skeleton argument (referring to Spencer-Bower, Turner & Handley, Res Judicata, 3rd edn, paragraphs 21-31) he put the matter in this way:
"The findings of Lord Laming's Inquiry were judicial in the relevant sense. In order for an adjudicative body to be a "judicial tribunal in the relevant sense" it is not necessary for it to be a Court of Record or even known as a court. Many statutory tribunals have been held to be "judicial tribunals in the relevant sense". Lord Laming's Inquiry was a judicial inquiry in the relevant sense because it provided a full opportunity for the Respondent and others of presenting evidence and argument. The findings in its report were "judicial decisions in the relevant sense" i.e. an adjudication of some question however described. The report of Lord Laming's Inquiry was not simply expressing an opinion for the information or guidance of government. It was reaching findings of fact upon its weighing of the evidence. "
- The reference to a "judicial tribunal in the relevant sense" is to distinguish decisions which are judicial from those which are purely administrative, the test being put in the Supreme Court of Victoria in Patras v. Commonwealth (1966) 9 FLR 152 by Lush J at page 155 in this way:
"The underlying principle of this form of estoppel is that parties who have had a dispute heard by a competent tribunal shall not be allowed to litigate the same issues in other tribunals. When the decision-making body is an administrative body not affording the opportunity of presenting evidence and argument … there is no room for the operation of this principle … It appears to me that both upon the general language of the authorities ... and upon … principle … no estoppel can arise from a decision of an administrative authority which cannot be classed either as 'judicial' or as a 'tribunal' and that an authority cannot be given to either of those classifications if it is one which is under no obligation to receive evidence or hear argument."
- For an example of a judicial tribunal in the relevant sense, Mr Coppel refers to the decision of a planning inspector on a planning appeal and to Thrasyvoulou v. Secretary of State for the Environment [1990] 2 AC 273 which concerned a challenge to enforcement notices issued by a council which followed earlier enforcement notices that had been successfully challenged. The Court of Appeal and the House of Lords upheld an analogue of cause of action estoppel.
- In my judgment, this argument and the analogy miss the point. Many bodies which are not courts but 'judicial in the relevant sense' can decide issues between the parties to a dispute before them. Lord Laming's inquiry, however, was not such an investigation. Ms Mairs was not a party to it; she was only a witness, albeit a witness who had the right and opportunity to make representations as to the findings that ought to be made. She had no power to cross examine any witness or to determine who should give evidence; in that regard, she was not a participant at all. The point of Thrasyvoulou was that the council and the owner of the properties had been parties to the earlier enforcement action and were both bound by its outcome. Furthermore, as Mr Coppel ultimately came to, if there was any force in the argument about estoppel, Ms Mairs would not be able to challenge the adverse finding at all: that is not how either the Tribunal or he put the matter for both accept that, for good reason, the Tribunal is entitled to reach a different conclusion to that expressed by the Inquiry.
- What is the status of Lord Laming's report? The Tribunal is not bound by the rules of evidence and it is clearly admissible both as to the facts and as to his conclusions. Without any discourtesy, however, the conclusions on the facts are Lord Laming's opinion based on his assessment of the evidence and cannot possibly bind the Tribunal which is required by statute to reach its own conclusions on the matters in issue. Common sense dictates that the views expressed following a statutory inquiry undertaken with a wide ranging remit will be highly persuasive and will require careful consideration. That is not the same, however, as saying that the Tribunal is bound to follow them or is inhibited in attaching greater weight to certain features of the evidence than did the Tribunal. It is not a question of asking the Tribunal to act as a Court of Appeal (as expressed in the last paragraph of the Tribunal's observations set out above) but rather of the Tribunal exercising its own judgment in accordance with its obligations under the 1999 Act albeit paying appropriate attention to the views of the Inquiry and doubtless explaining for reasons of clarity where and why it takes a different view.
- When I pressed Mr Coppel for authorities to justify the proposition that the Tribunal owed a duty of greater deference to the opinion of the Inquiry, he pointed only to the endorsement by Steyn J in The European Gateway [1987] 1 QB 206 at 221 of the observations of Devlin J in Waddle v. Wallsend Shipping Co Ltd [1952] 2 Lloyd's Rep 105 at 131:
"… I think that the competent authorities might consider whether the useful purposes that wreck inquiries serve would not be increased if the report was made available to any court which had to determine the cause of the loss. It is not necessary that the findings of fact in the report should be treated as binding. The opinion of the commissioner based on the facts he finds has at least as high a value as that of an expert based on the facts which he assumes to be proved; and it has the advantage of being quite independent of either side."
It is sufficient if I observe that I do not consider that this dictum (which goes to the admissibility of the report of a wreck inquiry) is inconsistent in any way with my view of the weight that should be attached to such a report.
- It follows that I do not accept that the views of Lord Laming must be accepted unless the Tribunal have shown what can be demonstrated to be good enough reasons for taking a different view. It is sufficient if it shows that there is a justifiable basis for its view which itself was reached having regard to the burden and standard of proof. In my judgment, the Tribunal has done that: it very carefully set out what Lord Laming considered to have happened and, having investigated other possible explanations, for reasons which are set out, expressed itself not satisfied that Ms Mairs had been told of the events of early November. The members of the Tribunal heard Mr Monaghan (who advanced the thesis accepted by Lord Laming), Ms Mairs and others who spoke of Ms Mairs' abilities: they were entitled to come to the conclusion that they did and I reject the contentions to the contrary.
- Another way of making the same point is to go back to my criticism of the analysis of the Tribunal's reasons. This analysis was driven by a comparison of its views compared to those of Lord Laming. In my judgment, in order to found an appeal it is necessary to focus upon the basis, justifiable or otherwise, for the facts found and conclusions reached as to what happened and as to the consequences of what happened. That may require a consideration of facts and conclusions reached by a public inquiry but differences of view, in themselves, will not necessarily reveal any error of law in the ultimate conclusion.
- I turn, finally, to the third ground of appeal. It is that without having heard from Ms Arthurworrey (and, I understand, having only a number of her statements and not a copy of the evidence that she gave to Lord Laming), the Tribunal were not entitled to conclude (in paragraph 124) as regards her, that she was "driven to undertake reconstructions that were self-justifying", that she had "no precise recollection" of what had been said and that "motivated by an entirely understandable desire to limit culpability "probably related matters which [she] had convinced [herself] must have happened". Exactly the same observations were also made about Ms Mairs. Mr Coppel submits that these conclusions could not have been derived from the written statements and required an assessment of oral evidence (which the Tribunal did not have). Ms Connolly, on the other hand, argued that, although its conclusions might have been more felicitously expressed, as there was nothing in Lord Laming's report to suggest that either Ms Mairs or Ms Arthurworrey was deliberately lying, this conclusion did no more than explain why, for understandable reasons which did not impinge upon honesty or integrity, the evidence of either or both may not be reliable.
- On the basis that Ms Arthurworrey did not give evidence before them, and furthermore that their knowledge about what she had to say and the way she had to say it was limited to the contents of her statements, without the benefit even of the transcript of her oral evidence before Lord Laming, I do not believe that it was open to the Tribunal to reach positive conclusions about other possible 'explanations' for her evidence and its conflicts with Ms Mairs' account. Such conclusions can only be speculative. If expressed as possible explanations with which Lord Laming did not deal but which the Tribunal was not prepared to exclude when assessing the inferences, that is another matter. In any event, I do not believe that the ultimate conclusion that the Tribunal reached was driven by the assessment of Ms Arthurworrey; rather, like Lord Laming, the Tribunal reached its conclusions based on what it considered to be the available and appropriate inferences from the circumstantial material placed before them. This error, therefore, does not of itself undermine the ultimate conclusion.
- It follows that I reject each of the grounds upon which the decision of the Tribunal is attacked. Mr Coppel accepted that if the Tribunal was entitled to reach the conclusion that it was not satisfied that Ms Mairs was aware of the events of early November, the session misconduct proved (relating to a failure to look, however briefly, at the file) was not such as justified the maintenance of Ms Mairs' name on the list maintained under the 1999 Act. In the circumstances, this appeal is dismissed.
Postscript
- I cannot allow this case to pass without adding a further comment about the procedure of the Tribunal. An application was made by the Secretary of State to try together the appeals against listing brought by Ms Mairs and Ms Arthurworrey on the basis that they shared the same factual background and much evidence would be produced that related to both. In the event, the President of the Care Standards Tribunal took the view that Regulation 8(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (which only permitted two or more cases relating to the same person, establishment or agency to be heard together) did not appear to permit such a sensible solution; the issue was taken no further. In a case such as this, to permit a joint hearing can only be in the interests of justice. The Tribunal would have had the full picture along with the advantage of hearing the evidence of both social workers, witnesses would only have been required to give evidence once and, further, each appellant would have had the chance properly to test whatever different accounts had been given. When the rules come to be reconsidered, I invite consideration of an amendment to permit this possibility.
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MR JUSTICE LEVESON: For the reasons in the judgment which I now hand down, copies of which are available to any interested person, this appeal will be dismissed.
MISS DAWES: May it please your Lordship, I appear for the respondent in this case. There is an application, my Lord, by the respondent for their costs of defending the appeal by the appellant in this case. My Lord, it is accepted in the appellant's skeleton argument that the appeal by themselves was governed by Part 52 of the Civil Procedure Rules, and as such, my Lord, you have the power to make an award of costs under rule 52(10(e). My Lord, a costs schedule has been shown to those who represent the appellant. I have also handed one to your learned clerk for it to be placed in front of you. My Lord, I understand that there is no objection in principle to such an award of costs, but there are some issues in relation to the amount claimed.
MR SHARLAND: My Lord, if I can assist very briefly. My learned friend is correct, we are not resisting the principle, because we cannot.
In relation to the figures, we think summary assessment is appropriate, but we say the figure of £4,000 for a one day, relatively simple, hearing is excessive and we would suggest a figure of £3,000.
MR JUSTICE LEVESON: It is actually a slightly better point than that, because Miss Connolly was fully familiar with the case having conducted in the lower tribunal.
MR SHARLAND: Precisely, my Lords, so there is not going to need much preparation needed. So £4,000 is clearly excessive.
MR JUSTICE LEVESON: Did you serve a costs schedule on the other side in advance? (Pause.) There is no reason why you should because of course, thinking about it, you knew the result when I sent out the draft.
MR SHARLAND: Yes, my Lord, and in light of that we obviously did not because it would be a complete waste of time and money, so no, we have not.
MR JUSTICE LEVESON: Thank you.
MISS DAWES: My Lord, in my submission the amount is reasonable considering the detailed submissions that were made in terms of the skeleton argument and before the court.
MR JUSTICE LEVESON: Yes, but let us be frank about it, Miss Dawes: Miss Connolly has lived with this case for some considerable time. The work had been done, in the sense that the notice of appeal set out precisely those parts that the Secretary of State wished to challenge. What Miss Connolly had to do, and she did it in a detailed skeleton argument, which I acknowledge, was simply to answer them. But it is not as though she had to pick up the case from scratch.
MISS DAWES: My Lord, I accept that.
MR JUSTICE LEVESON: Very good. Thank you very much.
RULING ON COSTS
MR JUSTICE LEVESON: I suppose I have to work out the VAT.
MR SHARLAND: If you knock £1,000 off the fee, then I suppose that would be £175 off the VAT.
MR JUSTICE LEVESON: Yes, I have got that far.
MR SHARLAND: My Lord, I think it should be £560.
MR JUSTICE LEVESON: I will order the appellant to pay costs in the sum of £4,500.
MR SHARLAND: Thank you very much, my Lord.
There is one further matter: the Secretary of State would ask for permission to appeal in this case. Obviously the correct approach to be taken to inquiry reports is a matter of general importance. It is not just an issue that relates to this case; there are a large number of cases where inquiry reports, and the relevance of that evidence and how much weight can be placed on that evidence, is in issue. My learned friend Mr Coppel is presently doing one such hearing, which is why he is not here today. So we would submit that permission should be granted.
I am not sure I can give you permission, even if I wanted to, which I am not sure I do. As I understand it, this is a second appeal. If you look at the decision of Ruscillo v General Medical Council, the Pursuit of the Council for the Regulation of Healthcare Professionals, which I tried on appeal from a decision of the GMC, and did grant permission to appeal, as I recollect, the Court of Appeal took the view that, even though the Council had not been involved at first instance, it was a second appeal and could only be advanced with the permission of the Court of Appeal. In fact they gave permission, but that is not quite the point. I do not have the case to hand. If you had alerted me to the application, I would have looked it out.
MR SHARLAND: Of course, my Lord. I apologise for not alerting you. I was instructed relatively late in the day. If it is a second appeal, clearly we cannot have permission, because we have to seek it from the Court of Appeal. I do hear what you are saying. I have experience in the education context where there is appeals from SENDIST to the High Court, and there it is regarded as a second appeal when you are in the High Court. So, my Lord, you may well be right.
MR JUSTICE LEVESON: Occasionally, Mr Sharland, that is the case.
MR SHARLAND: My Lord, I do not feel I can press my permission submission any further. What I would do is ask for 21 ... My Lord, the usual time for lodging an appellant's notice to Court of Appeal is 14 days. I would ask for an extension to 21 days. This is matter that will need to be considered at a relatively high level within the Department of Health. We would suggest that the extra seven days is not going to cause any prejudice to anyone and will assist the Department in reaching a carefully considered decision on particular grounds.
MR JUSTICE LEVESON: Miss Dawes.
MISS DAWES: My Lord, just as yourself, we were taken by surprise in relation to the application. My Lord, I appreciate my learned friend's application to extend the time and I understand it. However, clearly those who instruct me and the lay client in this case would wish this matter to come to an end as soon as possible. So, my Lord, I leave it in your hands as to whether you allow the extension. Certainly it is within your powers to do so if you feel it is appropriate.
MR JUSTICE LEVESON: Is it right, Mr Sharland, that actually when I provided this judgment in draft I did give a rather longer period of time for your clients to know the result following the practice when government departments are involved?
MR SHARLAND: My Lord, you may well have done. I was only aware of the existence --
MR JUSTICE LEVESON: Do you have the original draft?
MR SHARLAND: (Pause.) My Lord, I understand it was sent on 20th May, which was five days ago. Was that Friday?
MR JUSTICE LEVESON: Yes, but what I am interested to know is, when I allowed your clients to know about it.
MR SHARLAND: (Pause.) I think the judgment was sent to Mr Coppel's clerks on 20th May.
MR JUSTICE LEVESON: It is very simple, Mr Sharland. If you have a copy of the draft judgment and you look at the box on the top of the first page it will say in terms when it is releasable.
MR SHARLAND: "Not communicated to the client until 1 pm yesterday", my Lord.
MR JUSTICE LEVESON: Yesterday. So that was sufficient time to allow you to take some instructions. Normally it is an hour before the hearing.
MR SHARLAND: My Lord, I appreciate that it is longer than the usual hour, but it is not a particularly long period of time. Taking this type of case to the Court of Appeal is likely to involve some very senior people within the Department of Health, possibly including ministers, and obviously these individuals are extremely busy and not necessary contactable immediately.
MR JUSTICE LEVESON: All right, I will extend the time within which to serve notice of appeal to 21 days.
MR SHARLAND: Thank you very much, my Lord.
(Associate addresses the judge.)
MR JUSTICE LEVESON: I am asked, Mr Sharland, whether I should be completing a form in relation to permission to appeal, but you do not, in the light of the exchange we have just had, persist in the application, as I understand it? In the event, let me make it clear that if I thought I did have jurisdiction I would decline to exercise it, but I just do not believe I have jurisdiction.
MR SHARLAND: No, my Lord, as I say, on reflection I think you are correct. Obviously we would not want to be prejudiced if the Court of Appeal turn around and say: 'Well actually we could have asked you and we did not therefore we cannot ask them'. That would be grossly unfair.
MR JUSTICE LEVESON: That is why I have said what I have just said.
MR SHARLAND: I am very grateful, my Lord.
MR JUSTICE LEVESON: Right, thank you.
