RG v Secretary of State [2011] UKFTT 355 (HESC) (HESC) (13 June 2011)

IN THE FIRST TIER TRIBUNAL

THE SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES

[2008] 1430.PC – [2008] 1431.PVA

BEFORE

MR. STEWART HUNTER (TRIBUNAL JUDGE)

MS BRIDGET GRAHAM

MR. JIM LIM

DECISION

Heard on the 6^th September, 2010, 7^th September, 2010, 8^th September, 2010, 9^th September, 2010, 12^th October, 2010, 6^th April, 2011 and 13^th April, 2011

Sitting at the: Shrewsbury County Court, Cambrian Business Centre,

Chester Street, Shrewsbury, Shropshire SY1 1NA

Representation:

The Appellant was represented by her sister, Ms. SP.

The Respondent was represented by Mr. T. Little of Counsel save for the hearing on the 13^th April, 2011 when the Respondent was represented by Mr. D. Northfield a solicitor.

Appeal

1. This is an appeal by Ms. RG under Section 4 of the Protection of Children Act 1999 against her inclusion on the list of persons considered unsuitable to work with children by the Secretary of State pursuant to Section 1 of the Act. She also appeals against her inclusion on the list of those persons unsuitable to work with vulnerable adults kept by the Secretary of State for Health, pursuant to Section 81 of the Care Standards Act 2000.

Preliminary Matters

2. On the 1^st May, 2009 His Honour Judge David Pearl made a Reported Restricting Order under rule 14 (1) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, (“The Rules”) prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales of any matter likely to lead members of the public to identify any vulnerable adult or child; the appeal to be referred to accordingly as “RG v Secretary of State”.

3. Also on the 1^st May, 2009, His Honour Judge Pearl made an order under rule 26 (3) that the hearing should be held in private.

Evidence

4. In a written witness statement dated the 11^th April, 2007, Mr. Paul Hurd indicated that he was the Regional Director for Care UK Children’s Services, an organisation that operated a number of residential children’s homes. These included properties known as the FM and SB. which was located just outside Welshpool and a third property called T.O situated about 2 miles from S.B. It was also stated by Mr. Hurd that young people were placed with Care UK by various social services departments across the UK. The age range of the young people concerned was between 10 and 16 with an average age of between 12 and 14. The young people were stated by Mr. Hurd to have emotional and behavioural difficulties with some exhibiting challenging behaviour. The minimum ratio of staff to an individual young person was 1:1 although it could be 2:1 if required and higher if it were deemed necessary.

5. RG was born on the 23^rd September, 1975 and on the 19^th June, 2006 she was interviewed by Care UK (formerly Coverdale Care) for the position of a residential care worker. RG’s sister, SP. was already employed by Care UK as a care worker. Mr. Hurd in his witness statement noted that RG’s application form indicated that her previous employment had not been in the care industry. RG had previously worked in Asda as a shop assistant and before that for a company called Hutchinsons as a laboratory assistant.

6. Mr. Hurd also noted that RG in her application form had listed her main interests as being judo, outdoor activities and caring for young children, RG stating that she had two young children of her own.

7. RG was interviewed by Care UK on the 19^th June, 2006 included within the interviewers written comments was the following:-

“Although B (RG) has no formal experience in care work she is very open about herself. She is aware of her role and what comes with the job as her sister works within Coverdale Care.”

The interview form also contained a list of criteria for the job and a scoring system whereby candidates were scored between 1 and 5. One of the criteria was:-

“Experience in dealing with young people – particularly with challenging behaviour” for which RG was scored 3 points.

8. Mr. Hurd stated that Care UK was happy for RG to join the staff and on the 6^th July, 2007 RG was employed as a residential care worker. Mr. Hurd stated that the organisation offered full training, which included regular supervision and that before anyone took on employment with Care UK they were provided with a booklet entitled “Pre-Appointment Programme”.

9. Included within the Tribunal bundle was a job description for residential care workers dated May 2006. That indicated that the salary paid at that time was £12,730.00 to £15,060.00 per annum depending on qualifications, experience and service. The normal shift pattern was stated to be two days on and four days off, working 173 hours per month. Included within the description of the main purpose of the post was the following:-

“You will be responsible for the supervision of young people and activities while both in and out of the homes.”

In respect of training and development, the job description stated that all residential care workers were required to undergo mandatory training within the first six months of their employment. The job description then listed the types of training.

10. The Tribunal received evidence in these proceedings from Ms. Zahra Leggatt in the form of a written witness statement and oral evidence. Ms. Leggatt stated that she was the HR Manager for Child Care UK Children’s Services and had access to all rota and training reports for staff, including those of RG. Ms. Leggatt stated that she was able to confirm from those records that RG had undertaken a number of training modules in July, 2006, February, 2007 and March, 2007. The modules consisted of a day course each. Ms. Leggatt also stated that the Pre-Appointment Programme was something that had to be completed by all residential care workers before completion of their first shift.

11. Ms. Leggatt said that there was also a requirement for fortnightly supervision of a new residential care worker, which involved an individual meeting with their Line Manager. Ms. Leggatt had tried to find records of RG’s supervision meetings but had not been successful and had only been able to find one set of supervision notes. Ms. Leggatt went on to state that she monitored the progress of all new employees, which would normally include an interview after six months with their Manager and if necessary an action plan would be drawn up at that stage. RG had not completed all of her training or her probationary period with the organisation.

12. In proceedings before the Crown Court in March, 2008 RG was asked by her barrister as to whether or not she had received any training from her employers. The transcript of the trial indicates her response was as follows:-

“A limited amount of training. It should have been completed within six months, but it wasn’t, due to staffing levels, so I was put on an action plan and obviously I wasn’t put in confirmation of post because you can’t do that until you have completed all your training.”

RG went on to say that she thought that she had only completed four different sections of the training around the beginning of her employment.

13. The Tribunal were given a description of the SB home by Mr. Barry Argent who in late 2006 and early 2007, was employed by Care UK as a residential care worker and spent some of that time at the SB. He signed a witness statement in these proceedings dated the 30^th July, 2009 and he also gave oral evidence. Mr. Argent described SB as a bungalow with two bedrooms for young people and two bedrooms for staff. In addition there was an office with a sofa bed, a utility room, a lounge and a kitchen/dining area.

14. As far as the staffing situation was concerned, Mr. Argent stated that residential care workers worked two days on and four days off, so that a care worker would be at SB for 48 hours from when they came on shift and took care of their responsibilities during that time. When shifts changed over and new care workers came on there would then be a handover meeting.

15. The Tribunal also heard evidence from Ms. Dianne Farmer who signed a witness statement in these proceedings in July, 2009 and also gave oral evidence. She stated that she had previously been the Regional Manager for Care UK Children’s Services and her role at that time was to supervise the registered managers in each of the homes, one of the homes for which she had been responsible was SB. In relation to staffing Ms. Farmer stated that there were 9 staff who would be working at the home, when they were actually there would depend on their shifts. It was the normal procedure for there to be two members of staff sleeping overnight at SB, but Ms. Farmer accepted that from time to time there were staff shortages.

16. The Manager of SB between October 2006 and March 2007 was Ms. Rosa Marsh and she signed a witness statement in these proceedings in August, 2009 as well as giving oral evidence. Ms. Marsh stated that she was the Manager of both SB and TO, as a result of which she was not always available at SB; she considered that she had a difficult job. Ms. Marsh also stated that staffing was a problem at SB at this time. As far as staff sleeping over were concerned, Ms. Marsh stated that it was company policy that there should be 2 staff, but if the young person concerned was happy for there to be 1 member of staff then that could happen, it depended on the vulnerability of the child. SB had been due to be refurbished when Ms. Marsh became Manager and she said that she had tried to make it more homely, but quite often the rooms were trashed and they always needed refurbishing. SB was not as clean as Ms. Marsh would have liked, but she did not consider it to have been unhealthy.

17. At the time RG joined Care UK there were 2 young people in residence at SB. One was JP, who Ms. Marsh described as being a disturbed boy with very challenging behaviour. The other was LM, who was born in September, 1990. LM had been placed with Care UK Ltd by Staffordshire Social Services in February, 2004.

18. A report giving LM’s history was prepared by social services; this included details of family breakdown and indicated that LM had been in various foster placements. In the report it was noted that in July, 2001 LM was diagnosed with un-socialised conduct disorder and anxious attachment. There were also a number of criminal convictions in 2003 and 2004 including burglary, damage to property and battery. The reports also contained details of inappropriate sexual behaviour.

19. In a letter to the Treasury Solicitors Department dated the 14^th August, 2009, Ms. Judith Russ a Team Manager with “Through Care – Burton & Tamworth” provides further information in respect of these matters. In relation to an incident in November, 2002 entitled in the social services report, “Inappropriate Behaviour” Ms. Russ states as follows:-

“This information is recorded in the minutes of a Risk Management Meeting convened with L’s foster carers on the 2^nd December, 2002. The carers record L’s behaviour as “touching female carer’s breasts when going for a cuddle, staring at carers and female visitors breasts, sexualised language and pretending to masturbate. Also asked female carer if she wanted to engage in a sexual act with him.”

20. In relation to an incident in June, 2003 entitled “Alleges he was sexually assaulted by a female” Ms. Russ stated as follows:-

“This relates to an incident where L was absent overnight from his residential placement. On his return he stated that he had sexual relations with a 16 year old girl. He stated she had assaulted him but then L refused to discuss the incident further.”

21. In June, 2004 there is an item entitled “Sexualised Language” which Ms. Russ describes as follows:-

“This is recorded by his social worker as a frequent occurrence, that L uses sexualised language in everyday communication.”

22. In July, 2004 the social services chronology makes reference to a CAMHS assessment where L was assessed as high risk of further violent behaviour with a low risk of sexually inappropriate behaviour.

23. In February, 2004 LM was placed with Care UK at the FM and on the 21^st July, 2006 was then moved to SB. Ms. Marsh in her evidence stated that at the point LM came to SB he was becoming a rounded adult with a good future. He was beginning to get his life in order. He was excellent at golf and was becoming quite stable and settled. He was not threatening to staff when he came, but then something happened.

24. RG when giving evidence in the Crown Court stated that LM had arrived at SB in September 2006. She had not initially worked with him but was mainly occupied with another young person at the home. She thought it had been in or around October that she had been starting to work more closely with LM. LM had gone to RG’s Team Leader and requested to work with RG, because although he had worked with most of the other staff at the unit he had not worked with her. RG went on to tell the Crown Court that from the middle to the end of November 2006 she had been working with LM on a more intensive basis. They had discussed quite personal things and LM had started doing disclosures with her. He had told her about his previous foster placements and his relationship with a particular foster mother.

25. The Tribunal heard evidence from Mr. Sean Bray as well as being in receipt of a written witness statement from him dated August, 2009. He stated that he had first met LM at the end of 2004 when he had joined Care UK and had also worked as one of LM’s residential care workers at SB in 2006 and 2007. Although he had only worked one shift with RG he had seen her at staff handovers and he had noticed that a lot of time was being spent between LM and RG. Mr. Bray had not considered that it was good practice for a residential care worker to spend that amount of time with one particular young person. He had mentioned his concerns to his line manager. Mr. Bray had also noticed that LM’s behaviour began to change to the extent that he had lost interest in his golf.

26. Mr. Argent stated that during this period LM began to see RG as something of a mother figure and that in the early days staff would probably have used RG’s ability to get things done with LM. However information had been given to Mr. Argent that LM had been knocking on RG’s door late at night and they had been talking alone. Mr. Argent said that he was concerned for RG in particular that if she allowed LM to have constant access to her it might blur the lines in LM’s mind about his relationship with RG. Mr. Argent had approached RG about his concerns, but RG had been very dismissive as to any suggestion that a relationship was developing and Mr. Argent said that he had believed her. He had not himself seen anything untoward between RG and LM.

27. Ms. Rose Marsh in her evidence stated that members of staff working at SB had brought to her attention their concerns about RG and LM. Sean Bray had told her that RG was regularly turning up an hour early for work and that LM would be waiting for her.

28. On the 5^th November, 2006 LM had gone missing from SB with another young person. Mr. Hurd in his witness statement stated that on the 6^th November LM had been returned to SB by RG. She had told staff the LM had contacted her and she had agreed to collect him in Shrewsbury and return him to SB. RG had been spoken to by managers about how collecting LM in her own vehicle was inappropriate. She had been told not to repeat this if LM ever went missing again.

29. RG filed a record of important information regarding the 5^th November incident in which she stated that she had received a call from FM staff to say that LM and another young man had absconded. On the 6^th November stated that she had received a call from LM on her mobile and he had told her that he had been at a friend’s house. He had said that he was walking back to SB and had asked RG if she could contact staff so that they collect him. RG had asked if LM would allow her to take him back. She stated that she did not consider it was a good idea for LM to walk back at night. She had tried calling SB and eventually spoke to Sean and explained the situation, including that she was bringing LM back. Sean had not raised any objection.

30. Ms. Marsh in her evidence stated that this had been the wrong procedure for RG to follow.

31. As a result of all the various concerns that had been expressed regarding RG’s contact with LM, Ms Marsh stated that she and Dianne Farmer decided to have a meeting with RG.

32. A meeting had taken place on the 29^th November, 2006 at which Rose Marsh, Dianne Farmer and RG were present. The notes of the meeting indicate that RG expressed concerns about LM having access to her mobile phone and having received calls from him. She had told him not to phone her on the mobile outside of work hours. RG stated that following that conversation LM had not attempted to contact her. It was agreed at the meeting that if LM wanted to contact RG outside of her normal working hours then any call would be via staff at SB.

33. The incident on the 6^th November, 2006 when RG had brought LM back to SB in her own car was also discussed at the meeting, as was a letter written by LM which had been found in a company vehicle. A copy of the letter from LM was produced as part of the documentation in these proceedings, the letter concluded by stating:-

“I love you and miss you so much. See you on Tuesday.” This was followed by a number of kisses.

When RG was asked about the letter at the meeting on the 29^th November, she is recorded as saying that she felt that she had a trusting relationship with LM they had many in-depth conversations about love and the difference between being “in love”. RG stated that she did not feel that LM had an inappropriate fixation on her.

34. The notes of the meeting on the 29^th November, 2006 concluded by stating as follows:-

“Following this meeting both myself (Dianne Farmer – Regional Manager) and Rose Marsh, Registered Manager felt confident that (RG) was fully aware of appropriate and inappropriate boundaries in her role as residential care worker and the discussion which took place was both frank and honest and (RG) was working hard towards building a healthy relationship with LM.”

35. Ms. Farmer in her evidence stated that she considered the meeting on the 29^th November, 2006 to have been productive and constructive. Ms. Farmer believed her concerns had been addressed and that if RG had not been aware prior to that meeting of appropriate boundaries, she was by the end of that meeting. She had been given details of the company’s policies and procedures. One of the issues that had been discussed at the meeting was mobile phone calls from LM to RG. Ms. Farmer stated that she would not have expected RG to take calls on her mobile from LM and that if LM had got hold of her personal mobile number then Ms. Farmer would have expected RG to change that number. Ms. Farmer stated that at the meeting RG had been given a copy of the company’s induction manual, a copy of the policy document in relation to coping with young people and the handbook dealing with the use of her own vehicle. In her witness statement Ms. Farmer stated that RG continued to act as LM’s key worker until February, 2007, in oral evidence Ms Farmer stated that she could not recall when RG was appointed LM’s key worker.

36. In her evidence at the Crown Court RG stated that after the meeting on the 29^th November, 2006 Care UK had made her LM’s key worker. This meant that she was more involved with LM, although RG stated that she had never been trained to be LM’s key worker.

37. Ms. Leggatt when she gave evidence stated that being appointed a person’s key worker was an enhanced role; it could involve liaising with the young person’s parents and social worker and in making representations on the young person’s behalf. There was no different job description for a key worker nor was there any change in responsibilities.

38. It was submitted by the Respondent that following on from the meeting on the 29^th November, 2006, there was ongoing telephone contact between RG and LM and a significant number of telephone records were produced. RG was questioned during the hearing about the ownership of various mobile phones. In respect of phone number 5195, the Tribunal were shown a statement from Orange Payment Processing of the 19^th January, 2007 indicating the billing details for RG. In evidence RG confirmed that that was her phone. She was asked about a number of calls made to phone number 5195 by phone number 8610 in particular text messages made on the 11^th November, 2006.

39. An invoice from Orange was produced in respect of phone number 8610 in the name of LM and also text messages made by phone 8610 to phone number 1406 at the beginning of January, 2007. In respect of the latter RG stated that these were mainly text messages to her phone lasting a matter of seconds and there had been no phone conversations. LM had been bombarding her with text messages. RG said that she had brought this matter up with her team leaders.

40. RG was also asked about calls from LM’s phone 8610 to her phone 5195 on the 28^th November, 2009. RG stated that she was not aware of any contact from LM on the 28^th November, 2006. She had been on shift at FM and also her phone had been cut off. RG was then asked in relation to phone number 1406 about a call made to that number from LM’s phone 8610 on the 29^th November, 2006. RG indicated when she gave evidence on the 9^th September, 2010, that she did not think that the phone number 1406 was hers.

41. In a witness statement in these proceedings dated the 29^th September, 2010, PC Karen Morgan of Dyfed Powys Police produced the results of enquiries made of Orange regarding the ownership of phone number 1406. The response from Orange was dated the 23^rd July, 2007 and indicated that the number was a “Pay As You Go” account and that the subscription had started on the 29^th November, 2006. The number was registered to RG at an address in Telford.

42. In view of RG’s denial that the phone number was hers, the Tribunal on the 12^th October, 2010 made an order requiring Orange to provide further details regarding phone number 1406. This was provided in a response from Orange dated the 20^th October, 2010, in which it was stated that the subscriber was RG and that the subscription had started on the 7^th November 2006 been activated on the 29^th November 2006 and terminated on the 2^nd September, 2008. In an attached note, Orange stated as follows:-

“This is a pre-pay account therefore bills will not have been sent. In approx 2006 (month not known) Orange took a decision in not registering all pre-pay accounts. Please be advised that prior to this any accounts that were registered, the address and name details were not verified therefore proof of identification was not required. Therefore the account could have been registered over the phone or at the Orange store. If purchased as a gift then the phone did not have to be registered by the user.”

43. RG disputed that the phone was hers and suggested that LM might have registered it in her name. RG questioned why she would register a phone in her name if she had not wanted anyone to know about calls to or from that phone.

44. In his witness statement, Mr. Bray stated that he was on shift on Boxing Day 2006 which was a day on which it had been arranged that LM would be taken by RG to LM’s mother to arrive at 5.00pm. Before travelling to LM’s mother it had also been arranged that RG would take LM to play golf and to go shopping. Mr. Bray stated that LM and RG were late arriving at LM’s mother who had called to try and find out where they were. Mr. Bray stated that he had tried to contact RG and LM by telephone but had been unable to do so.

45. In a witness statement dated the 12^th September, 2009 LM’s mother KM stated that LM had been due to visit her and her family on Boxing Day 2006 and that they had arrived 2 or 3 hours late with LM having an unfriendly attitude. KM’s then partner, Mr. Russell Waite also signed a written statement which was dated the 12^th September, 2009 and he gave oral evidence. He was referred to an incident report completed by RG, in which she stated that an incident had occurred on the 27^th December, 2006. In that report RG had stated that LM had refused the Christmas presents his mother had given him and that whilst sitting in the car outside, Mr. Waite had approached LM in a threatening manner, during this altercation LM had head butted Mr. Waite. In giving evidence Mr. Waite said that his manner had not been aggressive.

46. Ms. Marsh in her evidence stated that after the meeting with RG on the 29^th November, 2006, RG had not raised with her that LM was calling RG or that she was making calls to him. RG had, on the 11^th February, 2007 given her a new phone number (1531) and had asked Ms. Marsh not to give it out to anyone else.

47. On the 13^th February, 2007 LM was due to attend his twice yearly review and RG was due to take him to that review. Ms. Marsh stated that she and another member of staff had gone in one car and RG and LM had travelled in another. The meeting had been due to start at 2.00pm. Ms. Marsh accepted that she had originally given RG the wrong address for the review meeting and she accepted that that might had been the reason why RG and LM were late attending. Ms Marsh had tried contacting RG by telephone but her phone was not being answered. At one point LM had answered RG’s phone which Ms. Marsh stated she considered was out of order. RG and LM did eventually turn up at the review meeting, but LM had refused to go into the meeting. Ms. Marsh stated that when she had returned to SB after the meeting she eventually spoke to LM on the telephone who told her that they had gone to see his father. Ms. Marsh stated that it was totally against company policy for that to happen, because LM had had no contact with his father for ages and such a visit had to be authorised and planned. In her view RG had acted in a totally unprofessional way; RG had not followed her instructions and taken LM straight back to SB.

48. In the incident report form completed by RG in regard to the incident on the 13^th February, 2007 RG stated that on her way to the review meeting she had received a call from Ms. Marsh to say that the venue had been changed and she was given a new address. They had arrived at the venue at 2.10pm for a meeting that had been due to start at 2.00pm. LM had stated that he did not want to go into the meeting late. Ms. Marsh had come and spoken to them both and LM had said that he did not want to go into the meeting. It had then been agreed that LM and RG would go for a walk and get a coffee. LM had been agitated that his mother had not attended the meeting and asked RG if they could go for a drive in the car. LM directed them to a playing field where he said he had played as a young child. LM had met his father on this trip and RG stated that although she had told LM to get back in the car she had been unable to stop him speaking to his father.

49. Ms. Zuzanna Boroncova signed a witness statement in these proceedings dated the 30^th July, 2009 and also gave oral evidence. She also gave a witness statement to the police dated the 15^th May, 2007. In her statement dated the 30^th July, 2009 Ms. Boroncova stated that she had started working for Care UK on the 19^th February, 2007, although prior to formally starting she had done a one day shift when she had shadowed another employee. Ms. Boroncova indicated that on the 19^th February 2007 she had come into the kitchen where RG, LM and another carer were sitting. LM had left the room and then returned shortly afterwards, he had then proceeded to stand behind RG and put one arm around her neck. It appeared to be in fun. Ms. Boroncova then stated as follows:-

“With his other hand he reached under her arm, grabbed her breast and shook it for 5 to 10 seconds while making comments that I can’t remember.”

50. Ms. Boroncova stated that RG had quietly and calmly told LM to stop which he had. Ms. Boroncova said that she had not mentioned it to anyone at the time because she did not know the procedures. When she eventually had reported it to a supervisor she had been told it was too late. RG denied that this incident had taken place.

51. At the Tribunal hearing Ms. Boroncova was asked why she had not mentioned the incident on the 19^th February, 2007 in the witness statement that she had given to the police on the 15^th May, 2007. Ms. Boroncova said she had written it in her monthly supervision but had been told that it was too late to do anything about it. When she had been interviewed by the police no-one had asked her about the incident on the 19^th February, 2007. Ms. Boroncova stated that she had left Care UK in September, 2008 and had gone to work for a different care organisation until May, 2010.

52. Ms. Marsh in her evidence stated that by February, 2007 she was starting to have more concerns about the situation between RG and LM. There had been an occasion when Ms. Marsh was with RG in her office and LM had starting banging on the door saying that RG was only supposed to be working until 12.00 midday; RG had gone red in the face.

53. Ms. Marsh stated that although she had concerns that something was not quite right she needed solid evidence. In February, 2007 she was prepared to go to Dianne Farmer and discuss the situation but before she could do so LM’s social worker, who was also of the opinion that something was going on between RG and LM, intervened Mr. Hurd in his written statement stated that in February, 2007 he had been approached by Ms. Farmer, because LM’s social worker was insisting on a section 47 investigation that would have involved the police and social services, because it was felt that the relationship between RG and LM was inappropriate. Mr. Hurd stated that social services had not provided Care UK with any evidence or information about their concerns and the section 47 investigation did not happen. However Mr Hurd stated that he and Ms. Farmer had discussed the situation; Ms. Farmer did not consider that she had any specific evidence that would give cause for concern. However a decision was taken in February to move RG from SB to TO as it was considered that this would safeguard both RG and LM.

54. Ms. Marsh in a statement to police dated 1^st June, 2007 stated that on the 22^nd February, 2007 she and Sean Bray had conducted a search of LM’s room at SB. They had found copy letters LM had written to RG, details of her duty rotas and also a copy of the company’s policy on relationships with young people. On the back of some of the paperwork there was a note of a mobile phone number ending 1531 which was a number belonging to RG and was listed as RG’s point of contact in Care UK’s staff records. Ms. Marsh stated that this was the number that RG had given her on the 11^th February, 2007 and told her not to give it out to anyone else. Care UK also held another mobile number for RG on their records ending 5195.

55. The Tribunal were provided with log entries from Nottinghamshire Police which included information regarding a search of LM’s bedroom on the 28^th July, 2007 in which it was noted as follows:-

“Approximately 270 empty cans of lager were found in his bedside chest of drawers.”

56. In a written statement given to the police dated the 30^th May, 2007, Mr. Mark Cintas stated that he was employed by Care UK as a residential care worker and was based mainly at FM. On the 8^th March, 2007 he had completed a record of Important Information form, a copy of which was included within the Tribunal papers. In that report Mr. Cintas stated that LM had been angry and confused and was saying that he had a problem with his girlfriend because she did not love him and would not have his child.

57. Ms. Tracey John, a Shift Leader at TO in a statement to the police dated the 15^th May, 2007 stated that on the 9^th March, 2007 she had been seconded to work at SB because of staff shortages. On that date staff had noticed that LM was not in his room; a search had been instigated but without success and the police were informed at 11.45am that LM was missing. On the 10^th March, 2007 a text message had been received by staff at SB from LM in which he stated that he was fine. Ms. John stated that there was further phone contact with LM on the 11^th March, 2007 when again he stated that he was OK. LM remained away from SB for a week.

58. In the Crown Court proceedings RG was asked about her movements from the 9^th March to the 15^th March. RG stated that she had spent that week at home and the only other people present were her children, her partner having moved back to his parents’ house. As for the 9^th March RG stated that she had spent the day at her sisters, it being her sister’s birthday. She then gave details as to her movements on the 10^th, 11^th, 12, 13^th, 14^th and 15^th March and stated that at no time had LM been with her.

59. RG stated in her Crown Court evidence that LM had turned up at her house in Wellington at about 7.00pm on the 15^th March, 2007. She had opened the door and LM had come into the house. RG stated that it was obvious that LM was drunk. She had tried to persuade him to go into town to use a telephone box to phone SB. LM had not been prepared to leave and go back to SB. LM had said that he wanted RG to take him on. LM had spent the night at RG’s home on the settee downstairs whilst RG had gone to bed upstairs.

60. The following morning RG stated that she had woken up at about 7.30am; her two children had not been at home that night as she had taken them to her parents the day before. When RG had woken up LM had been sitting on her bed. RG had then gone to her parents’ house, collected one of her children and taken him to school, but her daughter had remained with her. After having dropped her son off at school RG had returned to her home with her daughter and found LM still at the property. LM had been drinking. She had asked him to return to SB, but he had refused. LM had been burning pictures of her children on the fire which had distressed RG.

61. LM had told RG to go upstairs; she had done so and gone into her bedroom. LM had come after her. He had put a chair up against the inside of the bedroom door to prevent RG’s daughter gaining access to the bedroom. In the bedroom sexual intercourse had taken place between RG and LM. RG stated that she tried to persuade LM to leave but he was refusing. RG herself said that she was unable to leave the house because LM had her keys. She had not been able to telephone anyone, because she did not have a landline and there was no credit on her telephone. Eventually RG had insisted that she needed to collect her son from school and that had enabled her to leave the property.

62. RG’s sister SP made a witness statement dated the 26^th February, 2008 in which she gave details of her contact with RG between the 9^th and 15^th March. She stated that RG came to her house on the 9^th March as it was SP’s birthday. On the 10^th March SP had gone shopping with her husband and RG had looked after her son, who had spent the night of the 10^th March with RG. Her two sons had spent the night of the 11^th March with RG and RG had taken one of them to school the following day; SP also stated that during that week she had visited RG on most days in order to assist RG who was said to be ill. During that week SP stated that there had been no restrictions on her movements within RG’s house and she had never sensed anything wrong and RG had always been pleased to see her.

63. A number of statements were made by police officers regarding events in the road where RG lived during the afternoon of the 16^th March, 2007. These included a statement from PC Judith MacPherson dated 16^th March, 2007 in which she stated that she had been on her way back to the police station, situated near where RG lived, in a police vehicle, together with PC Worrall. A man had stepped into the path of the police car, in the same vicinity was an older female about 30 years old who appeared to be distressed and was crying loudly. PC MacPherson stated that she had wound down her window to ask if everything was alright. The young man, who she later discovered was LM, had asked her, in what she described as a loud and aggressive manner, ‘how old do you have to be to have sex with a 31 year old woman? I’m 16, she’s 31” and he had pointed to the woman standing nearby who PC MacPherson described as looking very dishevelled and crying loudly, almost hysterically. The woman had shouted “he’s raped me, he’s raped me” and pointed at the young man.

64. A vulnerable witness investigation log was produced as part of the evidence in these proceedings from West Mercia Constabulary, which included an entry dated at 16.20 hours on the 16^th March, 2007, when RG was in the interview room at Wellington Police Station. The log indicates that RG stated that LM had come to her house the night before and stayed all night and was very drunk. RG had wanted to leave but LM had refused to let her by making threats to hurt her. He had been smashing bottles and glasses in the house. In the morning he had calmed down and RG had gone to fetch her children. When she had returned he had been drinking again and he had said that he would go back to the unit. He had then forced himself on her and had intercourse with her.

65. A more detailed account from RG is recorded in a log in entry at 17.09 on the 16^th March, 2007. In that account RG states that she did not have any credit on her mobile phone so that she could not ring anyone when LM had been in her home. LM had been threatening to her and saying that he wanted to stay with her. On the evening on the 15^th March he had eventually fallen asleep, so RG had decided to leave him and go upstairs. In the morning he had been sitting on the top of her bed next to her. When she had got out of bed RG stated that she had felt a bit funny and was not sure if LM had done something to her but she came on her period so she did not know. LM had said that he loved her and wanted to live with her. RG stated that she needed to go and get her children and LM had stated that he did not want her to go and that he would trash the house when she was gone and he would get her the sack if she did not come back.

66. The log then records that RG left her home to pick the children up at 7.40am, collected the children and then returned to the house because she needed to get an item of clothing for her son. She then took her son to school, having dropped by her mother’s house to see if her mother could look after RG’s daughter while RG sorted LM out, but RG’s sister was there and RG knew that her sister would shout at her so RG had left again.

67. When RG had returned to her home LM was in the lounge and had been drinking again. Throughout that day RG stated that she tried to get LM to leave but he was getting more aggressive and started blocking her exit from rooms. LM had demanded more alcohol. At one point they had gone upstairs. LM had blocked RG’s bedroom door from the inside so that her daughter could not gain entry. LM had said if RG did not have sex with him he was going to hurt her. LM had then got on top of RG and had sex with her. RG stated that she did not want him to but she did not think that she could argue with him. She had just agreed because she couldn’t push him off.

68. Afterwards LM had become more aggressive again. RG’s daughter had become very upset. RG stated that she had put her daughter in the car and said that she needed to pick her son up. At that point LM had become nasty and had got a knife out of the kitchen. RG said she could not remember whether he went outside and tried to slash her tyres or whether he had held the knife to her throat, but he had done both and he had said that he would stop her collecting her son. At that point he had bitten her on the left side of her neck and her chest and she had punched him in the face. He had also kicked her in the right lower leg and punched her in the chest. RG had been hurt and LM was crying a lot. They had driven away in RG’s car and whilst they were stopped at traffic lights, LM had got out of the car and RG had carried on to collect her son. She had then stopped at a telephone box to call her mother, but the box would not take cash. She had tried another telephone box but that would not take cash either. RG had then driven back past her house and as she did so LM appeared at the top of the drive. He stated that he had spoken to the police and told them that she had raped him but that it was alright because he was 16. RG had started to go to the police station but then she had seen the police officers.

69. RG’s mother, PG gave evidence to the Tribunal and stated that she and her husband had hired a caravan for the weekend of the 16^th and 17^th March and RG was going to go there with them. She had spoken to RG on Saturday 17^th March on the telephone and had collected her from her home and had taken her to the police station.

70. On the 17^th March, 2007 RG signed a police witness statement in which she described the events of the 16^th and 17^th March. She stated that on the morning of the 17^th March LM stated that he loved her and that he wanted a baby. RG said that she could not recall how it had happened but she had had sex with LM on her bed. She had consented and she had not told him to stop. Afterwards they had gone downstairs and she had cooked some food for LM. They had then started arguing and he had become angry. She had persuaded LM that she needed to collect her son from school. There had been a further argument outside by the car. LM had been stabbing at her car with her knife but had not damaged anything. They had argued for about 15 minutes before going back into the house when a general fight had ensued. They had then left together in the car. LM had got out of the car at traffic lights. RG had tried a couple of telephone boxes to call her mother but without success. She had then driven back home to find LM outside her house. There had been a further argument and LM said that he had spoken to two police officers and told them what had happened. RG had then walked off to go to the local police station on the way she had met police officers. She had been very emotional and upset and had not recalled saying that LM had raped her. She did not want to make a complaint of rape against LM and everything that had happened in the bedroom was consented to. LM had not forced her to have sex with him and had not used any force when doing so.

71. In a statement in these proceedings RG stated that she had spent the night of the 16^th March at her home on her own and felt that she could not cope with what was going on and what would happen if she went to court. She considered her safety and that of her children more important. She had been told by DC Taylor that she would have to go to the police station and retract her statement. She had sat in an interview room with DC Taylor and had told him exactly what had happened. He had stopped her part way through her narrative and told her that she could not say that she was raped if she was retracting her statement. At that point RG stated that she just wanted to get out of the room and go back to her parents and children who were outside so she started her account again and totally left out the rape. DC Taylor had told her that if she wanted to retract she would have to say it was consensual as he had to take her statement to his boss who had to agree to accept the statement. RG considered that she had been badly let down by the police.

72. DC Taylor gave evidence in Crown Court proceedings when he was asked about the retraction statement made by RG. He denied that when interviewing RG on the 17^th March, RG said that she had been raped but that she did not want the police to prosecute LM for it. DC Taylor stated that if that had been RG’s position it would have been in her statement. If RG had continued along the lines that she had been raped then DC Taylor did not consider that she would have completed a statement saying that she had not been raped. DC Taylor denied that he had put any time pressure on RG to finish her retraction statement.

73. On the 16^th March, 2007 the notes in one of the police officer’s notebook indicate that RG was told about medical examinations for the collection of forensic evidence where there had been an accusation of rape. The notebook indicates that the officer observed a bite mark to the left side of RG’s chest near to her left shoulder and a bruise near her chest. A doctor was called to examine RG and the doctor’s medical examination form indicates that the doctor arrived at the police station around 12.15am on the 17^th March, 2007. The doctor’s form notes that a limited sexual assault examination was undertaken due to the withdrawal of consent.

74. On the 19^th March, 2007 LM ran away from SB having been returned to that unit following the incident on the 16^th March, 2007. The Tribunal heard evidence from Mr. Bob Titley, a Residential Care worker employed by Care UK. Mr. Titley signed a written witness statement in these proceedings in July, 2009 as well as providing a statement to the police dated the 30^th May, 2007 and giving oral evidence at the Tribunal hearing. Mr. Titley’s evidence was that on the 19^th March, 2007 he had been sent by Care UK to help out at S B. He knew LM having worked at FM when LM was based there.

75. Mr. Titley stated that when he arrived at SB on the 19^th March, 2007 he was informed that LM had absconded. On the 20^th March, 2007 LM had telephoned SB asking to be picked up and Mr. Titley had agreed to go and collect him from Donnington. He had arrived at the agreed meeting place in Donnington at about 12.15pm on the 20^th March, but there was no sign of LM and Mr. Titley was forced to wait for about half an hour. LM eventually turned up at around 12.45pm and Mr. Titley stated that LM was clearly drunk. He was drinking cans of Special Brew and Mr. Titley stated that he had insisted that LM finished the cans before LM got into Mr. Titley’s car. Mr. Titley said that in his view if he had tried to take the cans away from LM then LM might have run away. LM had not wanted to get into Mr. Titley’s car because he was paranoid about the police and he thought that he was going to be arrested again.

76. LM had spoken to Mr. Titley about his girlfriend who he called Bec, whom he later said was Victoria and then later he said that his girlfriend was RG.

77. During the conversation that LM was having with Mr. Titley in his car, Mr. Titley stated that LM kept stopping the conversation to telephone his “girlfriend”. Mr. Titley stated that when he had returned to SB he had later that day made some notes as to what had occurred when he had collected LM from Donnington.

78. Mr. Titley said that he doubted that when LM had made phone calls during the early part of their journey back to SB, between 1.30pm and 2.00pm, that there was anybody on the end of the line and Mr Titley thought the calls were fake; LM was almost acting and was not waiting for any reply. However LM had made further calls later in the journey where Mr. Titley thought that there had been someone answering the call. During one of the phone calls Mr. Titley stated that he could hear some young children in the background and he heard one of them being called “Josh”. Mr. Titley had asked LM who the children were and LM said that RG was looking after her sister’s children. Mr. Titley also stated that at one stage he could hear the person on the other end of the phone and he felt sure was RG’s voice. These calls had been made when Mr. Titley had stopped the car and parked it in Dinky’s Diner.

79. LM had then fallen asleep and Mr. Titley had waited until 3.30pm for him to wake up. LM had then continued to call his girlfriend, dialling a number and then his girlfriend would call him back. If she did not phone within 10 seconds LM became frustrated. At times during the calls LM would end the call with a kiss and Mr. Titley said that he could hear a woman on the other end blowing a kiss back. When Mr. Titley thought it appropriate he had continued on his journey with LM back to SB and he said that they arrived at about 7.00pm.

80. RG disputed that she was looking after her sister’s son on the 20^th March 2007. The Tribunal were referred to minutes of a meeting held on the 20^th March 2007 which Paul Hurd, Dianne Farmer, Nicola Frost and RG were stated to be present. The notes indicated that the meeting lasted from 1.30pm to 3.45pm. The minutes indicate that Mr. Hurd stated that the meeting was an opportunity for RG to discuss the recent incidents that had occurred involving LM. Mr. Hurd in his written witness statement indicated that the meeting had taken place in Church Stretton and had started at 1.30pm and had concluded at 3.45pm. RG’s evidence to the Tribunal was that the journey from Church Stretton to her home took in excess of 1 hour 20 minutes. Mr. David Northfield, a solicitor with the Treasury Solicitors Department in a statement dated the 1^st October, 2010 exhibited route planners from the RAC and AA websites indicating that the journey time from Church Stretton and RG’s parents’ address was between 40 to 42 minutes. RG and SP both contested this in their evidence stating that the route planners did not take account of delays that could occur at various times of the day.

81. LM was interviewed by the police on a number of occasions regarding the incidents of the 15^th and 16^th March, 2007. On the 27^th March 2007 LM was interviewed at Newtown Police Station. LM explained that he had, on a number of occasions, gone missing from SB and that in the days prior to the 15^th and 16^th March he had absconded and stayed with a friend in Donnington. He had obtained RG’s address from a member of staff at SB. He had turned up at RG’s house on the Thursday and RG’s reaction had been one of shock. They had watched TV and LM had slept at RG’s house on Thursday night. The following morning he had a lot to drink and got really drunk. He had helped himself from some drinks in RG’s garage. On Friday morning at around 7.20am he had had sex with RG. When he had seen the police on Friday afternoon and had been interviewed he had lied, because RG had lied about him. LM stated that he now wanted to tell the truth and say that there had been no relationship with RG, that they had had consensual sex on one occasion and there had been no ongoing relationship between him and RG; he had lied about that. He had not had sex with her either before that Friday at her house or since. In relation to having sexual intercourse with her on Friday morning LM was asked whether he had used a condom and he had said that he had not. He denied ever having forced himself upon RG. When he had had sex with RG it had been his first occasion. LM confirmed that there had been no relationship with RG and that there would be no relationship in the future.

82. Mr. Waite in his written statements and his oral evidence to the Tribunal described an incident on the 31^st March, 2007. On the 30^th March, he had been asked by LM’s mother KM to follow LM after LM had visited his and KM’s home, to see whether he was going to meet RG. Mr. Waite said KM believed that LM was having a sexual relationship with RG and she needed evidence to prove this. KM believed that LM and RG would be meeting on the 31^st March, 2007 in Telford.

83. Mr. Waite stated that he had driven together with a friend Mr. Gary White to Telford Railway Station arriving at just after 2.00pm. Mr. Waite stated that he had made notes of what he saw and that these had been written after his observation. In his notes he had stated that at 14.56 a blue metro motor car had arrived. At 15.01 RG had made a phone call from a phone box at the station. She had then driven off in the metro at approximately 15.15. LM had arrived on a train into Telford Railway Station at 16.12. He had then walked out of the station to a retail park which housed a number of stores including Staples and Blockbuster, arriving there at 16.15. Mr. Waite and Mr. White had then followed LM in their car to the retail car park. The blue metro was in the car park and LM had got into the car.

84. Mr. Waite stated that the blue metro was no more than 60 feet away. There was a car parked in between Mr. Waite’s car and the blue metro, but Mr. Waite said there was nothing obstructing his view and he could quite clearly see them have a hug and a kiss. Mr. Waite described it as being more than a peck on the cheek and was a “relationship kiss”. He and Mr. White had watched LM and RG for around 10 minutes before RG had driven off with LM still in the car. Mr. Waite stated that he had not taken any pictures on his mobile phone and had not seen Gary White take any pictures either.

85. Mr. Waite and Mr. White had then followed the blue metro towards Wellington, but at one point were concerned that they might have been seen and had therefore driven on to avoid suspicion. They could not find the blue metro again so having been given RG’s address by KM they drove to that address arriving at 16.45 and found the blue metro parked outside. Mr. Waite stated that they had remained keeping observation outside the house until 18.35 and then had left. They had not seen anyone enter the house and did not see RG and LM in the house. They had assumed that they were in the house.

86. In his witness statement to the police dated the 22^nd June, 2007, Mr. Waite gave a description of RG and stated that he would be able to identify her again. On the 30^th July, 2007 he attended an identification parade at Malinsgate Police Station and watched a video showing a set of 9 images. Mr. Waite accepted when he gave evidence at the Tribunal hearing that he did not pick out RG from the images that he was shown. On the 7^th August, 2007 the solicitors that were then acting for RG wrote to her confirming that Mr. Waite had been unable to identify her as the person he said that he had seen in the car with LM.

87. Mr. Waite stated that he had given evidence regarding his observations on the 31^st March at RG’s Crown Court trial.

88. Mr. Gary White gave a statement to the police dated the 24^th May, 2007 when he confirmed that he had accompanied Mr. Waite to Telford on the 31^st March, 2007 and that he had seen Mr. Russell making notes. He also stated that whilst at Telford Station with Mr. Waite he had seen a blue metro pull into the car park and that Mr. Waite had identified the female driver as being RG. Mr. White recalled RG then using a mobile phone in her car before driving out of the car park. LM had later arrived at the railway station and he and Mr. Waite had followed at a distance. LM had then gone to another car park and got into the passenger side of the same blue metro that he and Mr. Waite had seen earlier in Telford Railway Station car park. LM had got into the passenger seat and then Mr. White stated that he had seen LM and RG begin to kiss for several minutes. It appeared to Mr. White that they were having a conversation in between passionate kissing. He and Mr Waite had later followed the blue metro out of the car park, but then lost them for a short while. They had then driven directly to an address in Telford where Mr. White stated that he had seen the blue metro parked outside the street. He did not see either RG or LM. Mr. White stated that he had taken 3 photographs on his mobile phone, the images being of the blue metro parked outside the address in Telford and of a silver cavalier motor car parked on the driveway. Mr. Waite in his evidence said that he was unable to say why Mr. White was unable to go to the Crown Court to give evidence in RG’s trial. Mr. Waite had been cross that Mr. White was unable to attend.

89. Ms. SP when she gave evidence said that RG had spoken to her about going to Telford Railway Station. SP said that she knew there had been an incident involving RG and LM. She had been told by RG that she was going to meet LM to lay down the law. SP stated that she had told RG not to meet LM, but RG had ignored her advice.

90. RG when she gave evidence was asked about telephone contact with LM after the 16^th March. RG stated that she had only contacted LM once by telephone after she had been raped by him. RG stated that she had met LM at Telford Railway Station on the 31^st March, 2007, because she wanted to get control back. LM had taken control away from her and threatened her children. She had spoken to police about this but they were not prepared to help. She considered that it was the only way of making LM understand that he needed to stay away from her. She had asked a WPC to come with her and also had asked her sister to come with her but they had both refused. As far as the printout of LM’s rail journey which was found in RG’s home was concerned, RG stated that this was not something that she had printed out LM had brought it with him to the meeting at Telford Railway Station.

91. RG said that she did not know whether LM was going to turn up at the railway station. She could not recall whether she had her mobile phone with her or how she had LM’s telephone number. RG was also unable to say why she had used the telephone box at the railway station. She had taken a dog with her and told LM that if he turned up again at her home she would call in her former partner, Andy. RG said that she had not hugged and kissed LM when they had met at the railway station and she had not had sex with him again after the incident on the 16^th March. On the 1^st April, 2007 LM had turned up at her house and walked in the back door. RG stated that she had immediately left out of the front door.

92. SP made a number of statements to the police in August and September 2007 regarding the harassment that she and her family were said to have experienced from LM. The harassment included letters sent to SP of a threatening nature and LM being seen on the garage of SP’s parents. SP also made a statement in these proceedings and gave oral evidence. Mr. WG the father of RG and SP also made statements to the police in August, 2007 as well as giving evidence before this Tribunal. In those statements he referred to phone calls that he and his wife had received between the 26^th April, 2007 and about the 8^th or 9^th July, when the calls were answered the caller hung up straightaway. WG stated that he believed that the person who had been phoning their home was LM. On the 28^th July, 2007 LM was arrested on WG’s roof at about 1.00am in the morning. LM was stated to have had a knife in his pocket when he was arrested. There was also an occasion when their bedroom window had been smashed. WG stated that they bought and installed CCTV at their home.

93. On the 17^th August, 2007 LM was arrested and charged with a number of offences including harassment of SP and her parents as well as criminal damage to her parents property, blackmailing WG’s wife PG, threatening to kill SP, WG and PG and wasting police time. LM was subsequently tried at Shrewsbury Crown Court on the 11^th January, 2008.

94. RG was asked by the police about LM’s allegation that he had spent Christmas night with RG and had had sex with her in her room at SB. RG denied that that had happened. RG was asked whether there was going to be any DNA belonging to LM’s on the mattress in that particular room. RG replied that she did not know, but there had been one incident when LM had wiped some semen on her back and that she had gone into her room and got changed afterwards. She had not reported it at the time because he had done it to another member of staff. RG did not know that it was semen that she had wiped on her, but LM had said that it was, therefore there could be semen on the mattress that RG had used because LM had wiped some on.

95. RG also stated when interviewed by the police to say that she thought that there would be LM’s blood on the mattress.

96. RG was asked during one of the interviews on the 18^th June, 2007 about the incident on the 31^st March, 2007 when she accepted having met LM in Telford outside Blockbusters. She stated that she did not deny meeting LM but she did deny having kissed him. She had met him because she did not consider that she was getting any help from the police. She had not taken Andy with her but she had taken her dog with her as well as a paddle brush hairbrush. She wanted to meet him in a place where there would be people around. She told LM that she didn’t want him coming round to her house. When they had finished talking she had dropped him round the corner near a bus stop in Wellington. She had then done some shopping and gone home. The following day LM had turned up at her house so she had gone and got Andy who came round together with one of his friends and they had put LM out. RG had then left her house and gone to stay with her parents. After having seen LM on the 31^st March, LM had written a letter which RG had not kept.

97. RG was also asked by the police about photos that LM was said to have on his telephone a female with two children and a Staffordshire bullterrier. RG stated that LM could have got the picture when he was at her house.

98. RG was asked about the phones that she had had in the preceding 12 months to which she had responded that she had had three. RG stated that she could not remember the numbers, but that she would make enquiries about the numbers being suggested to her by the police. In particular RG was asked about a mobile phone number ending 1531 which was said to be a Pay As You Go phone. RG stated that she had not had a Pay As You Go phone for four years. She had a contract phone but that had been barred from December, 2006, that number had been 5195. RG was asked about phone calls said to have been made to LM on the 14^th February, 2007. RG stated that she did not know why there were so many phone calls shown as having been made to LM on 14^th February, which was Valentines Day. It was also suggested by the police that on the 18^th and 19^th February calls were being made late at night to LM. RG stated that she was not denying that she had had phone contact with LM. He would phone her and she would phone back if he did not have enough credit on his phone.

99. In a statement dated the 29^th August, 2007 Steven Paddock, a Forensic Scientist stated that he had examined a number of items that had been submitted to the Forensic Science Laboratory at Birmingham for examination. These included a condom and a swab of a condom wrapper taken from RG’s home address and two mattresses from SB Care Home. He had also been provided with DNA samples from LM and RG. In relation to the condom, Mr. Paddock stated that semen with a DNA profile matching that of LM had been detected on the inside of the condom. Cellular material with a DNA profile matching that of RG had been detected on the outside of the condom. No DNA profile was obtained from the swabs taken from the empty condom packet. In respect of the mattresses, semen was detected on both sides of one the mattress and DNA profiles taken, neither semen examined matched LM’s DNA profile, no visible blood was detected on the mattress. In respect of the other mattress from SB semen was detected on both sides of that mattress. There was a DNA result on one area of the mattress in respect of which Mr. Paddock stated that LM could have contributed his DNA, however it was not possible to determine from what body fluid the DNA matching LM had originated and therefore it was not possible to determine how the DNA could have been deposited.

100. RG was charged with 7 counts of sexual activity with a male aged 13 to 17, namely LM, RG’s trial commenced on the 10^th March, 2008 in the Crown Court at Mold before His Honour John Rogers QC. In a ruling on the 13^th March, His Honour Judge John Rogers stated that so far as counts 2 to 7 were concerned, there were two issues, firstly whether there was sexual intercourse and secondly whether RG was at the relevant time, in a position of trust over LM. It was noted by His Honour John Rogers that the prosecution’s case was that sexual intercourse had taken place between RG and LM in March, 2007 and on further occasions in March, April and later months of that year. After considering the evidence and submissions His Honour Judge Rogers concluded that at the relevant times alleged in counts 2 to 7 in the indictment faced by RG she was not in a position of trust over the complainant LM. The jury were therefore directed that there was no evidence upon which they could evict RG and His Honour Judge Rogers directed them to return verdicts of not guilty.

101. The trial continued in relation to count number 1 of the indictment which was that RG had had sexual activity with LM on an occasion between the 24^th and 30^th December, 2006. Having obtained copies of the logs from S B and TO, they showed that RG was not in fact at SB between the 27^th and 30^th December and it was only in the early hours of the morning of the 31^st December that she had actually been at SB. The prosecution applied for leave to amend their indictment to cover the 31^st December, 2006. but the application was refused, the prosecution then offered no evidence and asked that RG not to be convicted on count 1. The jury were therefore directed by His Honour John Rogers to return verdicts of not guilty on all counts on the indictment against RG. At the end of the trial the judge stated that RG could now be discharged and her excellent character remained intact.

102. After the meeting that RG had attended on the 20^th March, 2007 at Church Stretton with Mr. Hurd and Ms. Farmer, she was suspended while the police conducted their investigation. On the 27^th April, 2007 Mr. Hurd wrote to RG stating that the fact that RG was on bail and might be facing charges of attempting to pervert the course of justice and abuse of trust, that the situation warranted a discipline hearing to consider a charge of gross misconduct. The disciplinary meeting was to be held on the 14^th May, 2007 at Church Stretton.

103. On the 26^th June, 2007 Mr. Hurd wrote to RG again, stating that she had failed to attend two disciplinary meetings which had been arranged and a judgment had been made in her case in her absence on the 15^th June, 2007, the decision of the company was to summarily dismiss RG from their service.

104. On the 9^th July, 2007 Mr. Hurd wrote to the Department for Education and Skills notifying them that RG had been dismissed in respect of an inappropriate relationship with a child in their care. On the 14^th August, 2007 the Department of Health wrote to RG telling her that she had been provisionally been included on the Protection of Children Act list and that it had also been decided to provisionally include RG’s name of the Protection of Vulnerable Adults list. On the 15^th September 2008 the Department of Health wrote again to RG stating that having considering all the available information the decision had been taken to confirm RG’s inclusion on the PoCA list and the PoVA list.

105. On the 15^th December, 2008 RG lodged an appeal to this Tribunal against the decision to place her on the PoCA and PoVA lists. In her appeal form RG stated that the allegations against her were false. The young person concerned had made allegations against other members of staff and had also made threats against RG and her family. The young person had also admitting registering phones in other people’s names and using them to create evidence against RG. DNA evidence had also proved that he was lying. The Crown Court judge had said that there was no case against RG, the young person had admitted and was found guilty of threats to kill/harassment/criminal damage and wasting police time in respect of actions against RG and her family. RG was still fearful of the young person and locked her doors day and night. She had moved home and her children had moved schools.

106. In their response to the appeal the Department for Children, Schools and Families stated that there was evidence to prove on the balance of probabilities that there was an ongoing sexual relationship between RG and LM which was clearly wholly inappropriate. The evidence showed that RG was clearly unsuitable to work with young people and that she posed a risk of harm to young people in her care. Even on her own account it was submitted by the Department that RG had failed to maintain appropriate boundaries, did not provide the care necessary for the young people in question and the risks associated with her inability to carry out her role properly, meant that she was unsuitable to work with children.

The Law

107. Section 4 (1) of the Protection of Children Act 1999 reads as follows:-

“An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under Section 1 above may appeal to the Tribunal against:-

(a) the decision to include him in the list; or

(b) with the leave of the Tribunal, any decision of the Secretary of State not to remove him from the list under Section 1 (3) above.”

In terms of the Tribunal’s powers on hearing an appeal Section 4 (3) states:-

“If on an appeal or determination under this section the Tribunal is not satisfied either of the following, namely:-

(a) that the individual was guilty of misconduct, whether or not in the course of his duties, which harmed a child or placed a child at risk of harm; and

(b) that the individual is unsuitable to work with children,

the Tribunal shall either allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.”

108. The burden of proof in this appeal lies on the Respondent and the standard of proof is on the balance of probabilities. The more serious the misconduct is that is alleged the greater need there is for cogent and probative evidence to establish that the Appellant has behaved as alleged.

Tribunal’s Conclusions with Reasons

109. The first issue that we need to consider is whether or not the Appellant was guilty of misconduct which harmed a child or placed a child at risk of harm. Mr. Little on behalf of the Respondent stated that the Respondent makes two primary allegations of misconduct in this case. Firstly, that the Appellant and LM had repeated consensual sexual intercourse between December, 2006 and April, 2007 or that the Appellant and LM had consensual sexual intercourse only on the 16^th March, 2007 and either the 31^st March, 2007 or the 1^st April, 2007. In addition to these primary allegations the Respondent also makes six further allegations of misconduct against the Appellant in respect of her involvement with LM.

110. In order to consider these allegations it is necessary in our view to consider the totality of the Appellant’s involvement with LM and the context in which that involvement took place.

111. It is clear from the information provided by Staffordshire Social Services that LM has had a very disturbed and fragmented upbringing. The information regarding LM’s history shows that he was received into foster care in April, 2002, his natural parents having separated and then subsequently his mother separating from his stepfather. LM has been diagnosed as having a conduct disorder as a result of trauma and the early separation in his childhood. He was then placed in a number of foster placements. In July, 2001 he was diagnosed with un-socialised conduct disorder and anxious attachment. LM was subsequently placed with Corvedale Care (later to become Care UK) in February, 2004, where he is placed at the FM before being moved to another of Care UK’s homes, SB in July, 2006.

112. The history provided by social services also gives details of a number of incidents of inappropriate sexual behaviour by LM as well as criminal convictions for such matters as burglary, criminal damage and assault.

113. In view of LM’s history we have no doubt of the need for those working with LM in a care setting not only to be aware of LM’s background, but to have skill and experience in working with children and young people who have significant and complex difficulties and who may well present with challenging behaviour.

114. When LM was at FM, Mr Hurd’s evidence amongst others, was that LM’s staffing ratio would have been on a 2:1 basis, in other words there would have been 2 adults working with him. It appears that LM made progress in this setting, such that Care UK felt able to move him to SB where the staffing ratio was 1:1.

115. Ms. Farmer when she gave evidence stated that SB was laid out as a bungalow and was intended to accommodate two young people, each of whom had their own room and there were also two rooms available for staff and an office.

116. LM moved to SB on the 21^st July, 2006, the other young person who was also at SB at the same time as LM was JT, someone who Rose Marsh described as a disturbed boy who was very challenging.

117. As far as staffing at SB was concerned, the Tribunal were told that the staffing structure within the organisation in 2006/7 was that Mr. Paul Hurd was the Regional Director with Ms. Dianne Farmer being the Regional Manager with responsibility for homes in Wales. In that capacity Ms. Farmer was the supervisor to the registered managers of each of the homes in that area, those homes included SB, TO and FM. During the period October, 2006 to March, 2007 the centre manager for SB was Ms. Rose Marsh who was also managing the home at TO. There were then a number of shift leaders one of whom at any given time would be supervising the residential care workers at a particular home. Ms. Marsh and other witnesses stated that staffing during this period was a problem at SB and Ms. Marsh accepted that she had brought additional staffing from FM. At SB there should have been a Team Leader and two registered care workers on each shift. As far as night times were concerned, Ms. Marsh stated that there were usually two staff on duty but it was possible that there might have only been one person on duty. The Tribunal were told that there were about 9 people working on different shifts during the time that LM was at SB; the procedure being that staff would work shifts doing two days on and then four days off.

118. The Appellant began working as a residential care worker for Care UK on the 6^th July, 2006. The idea of applying for a post with Care UK is said to have come from the Appellant’s sister, SP who was already working for the organisation. In her application form the Appellant gives details of her work experience up to that point which included working as a shop assistant; she had little if any experience of working with young people and certainly no experience in care work. Despite this we note that when the Appellant was interviewed for the post of a residential care worker she was given a score of 3, on a range of 1 to 5, for experience in working with young people – particularly with challenging behaviour.

119. There was a dispute between the Appellant and other witnesses as to how much training the Appellant received from Care UK. The Tribunal had evidence from Ms. Leggitt, the Human Resources Manager for Care UK Children’s Services. She stated that the company’s records showed that RG had taken a number of training modules including taking care, taking control modules 1-3 on the 14^th July, 2006, taking care, taking control modules 4-6 on the 5^th February, 2007 and taking care, taking control modules 7-9 on the 15^th March, 2007. In addition we were told the Appellant would have had an induction shift when she would have been observed. Ms. Leggitt stated that there was also a training information pack which contained more information. The Appellant did not complete all of her training or her probationary period.

120. Residential Social Workers were supposed to be subject to fortnightly supervision in the form of an individual meeting with his or her line manager. It has not been possible for us to reach any conclusions as to the amount of supervision that the Appellant received whilst working at SB because Care UK was not able to produce all of the supervision records. Ms. Leggitt said that the supervision records were confidential and kept at individual homes and were then later archived. The importance of maintaining and keeping available supervision records is clearly illustrated by the circumstances of this particular case. If those records been available they should have shown precisely what supervision the Appellant received whilst working at SB but also the issues that were discussed with her manager and whether there were any particular areas of concern.

121. The Appellant had been working a matter of weeks at SB before LM arrived at the home. She very soon began working closely with LM. In the weeks that followed LM’s arrival concerns were expressed by a number of staff working at SB regarding the Appellant’s relationship with him. Despite these concerns it would appear that in or about October of 2006 the Appellant was appointed LM’s key worker. Ms. Leggitt stated that it was for the home’s manager to determine the amount of training a person needed before becoming a key worker. Ms. Marsh in her evidence stated that SB was a difficult place to work and contained very challenging young people. At the time Ms. Marsh was trying to run two homes and she stated that she relied very much on the shift leaders at SB and if an individual care worker needed support then she was there to give it.

122. We have not been able to form any definitive conclusions as to precisely what training the Appellant received whilst at Care UK, but we have no doubt, given the challenging behaviour of the young people based at SB, particularly LM, and given RG’s total lack of experience in care work that any training that she did receive was inadequate. She was placed in a position by those running Care UK, where she was working on an individual basis with a young man who the organisation knew had a very disturbed background, including attachment issues, who in our view required the intervention of more experienced and trained staff than the Appellant. We find it incredible that given RG’s lack of experience, combined with concerns that other staff members were already raising at this time about her relationship with LM, that she should have been appointed LM’s key worker. Not only was the Appellant given inadequate training, the lack of supervision records combined with staffing problems at SB also leads us to conclude that the Appellant was inadequately supervised in her work with LM.

123. Mr. Sean Bray, a residential care worker who had spent some time at SB as a shift leader when RG was working there and met the Appellant at handovers. He was one of the workers who raised concerns regarding the Appellant’s involvement with LM. He stated that there were placement plans for young people within Care UK’s homes, although he was unable to recall the details of LM’s plan. He also said that information regarding a young person was kept on file and the home manager would decide whether that information should be shared, including any risk assessment. We do not believe that the Appellant was given full details regarding LM’s history, any insight or training into the difficulties with which LM might present or the risks that he might pose.

124. As a result of the various concerns expressed by members of staff at SB including Sean Bray and Barry Argent, a meeting was eventually called by Ms. Farmer to discuss these concerns. That meeting took place on the 29^th November 2006, as well as staff concerns the meeting also had available to it other evidence which in our view should have raised alarm bells. Firstly there was what can only be described as a love letter from LM to the Appellant, which was found in a company vehicle, in which LM states:-

“I love and miss you so much. See you on Tuesday.”

There were also drawings that LM had made of the Appellant. In the same meeting the Appellant herself expressed concern about LM having access to her mobile phone number and she said that she had received calls from LM on that number.

125. The meeting also discussed an incident which had taken place on the 6^th November, 2006, when the Appellant had returned LM to SB in her own vehicle after he had gone missing. Although the Appellant expressed the view at the meeting that she did not feel LM had an appropriate fixation on her and that they had a trusted relationship, we find it astonishing that given all the evidence that the meeting had available to it on the 29^th November, 2006, the Appellant’s lack of experience and LM’s complex and significant difficulties, that the management at Care UK felt it appropriate for the Appellant to be working with LM as his key worker.

126. Whilst the management of Care UK are recorded as having discussed with the Appellant at that meeting, appropriate boundaries in working with LM, nevertheless the outcome of the meeting was effectively to give the Appellant a green light to keep working very closely with LM, to discuss intimate issues with him and to encourage him to disclose sensitive matters with her. The Appellant was clearly not qualified and lacked the experience or training to work with LM on this basis. Moreover there appears to have been little if any ongoing supervision of the Appellant in this role. Ms. Farmer when she gave evidence spoke about LM having a social worker and access to a qualified therapist. She also stated that LM was encouraged to go on a weekly basis to see the therapist to talk about issues. We did not have any evidence from LM’s social worker as to her/his level of contact with LM during this period or any information from LM’s therapist as to the regularity of LM’s attendance or the issues that were discussed. Ms. Farmer also stated that with hindsight she accepted that it had not been appropriate for the Appellant to be appointed LM’s key worker, but in our view that was something that should have been apparent to the management of Care UK at a very early stage and certainly by the 29^th November, 2006.

127. After the meeting on the 29^th November, 2006 there are a number of indications of a closer relationship starting to develop between LM and the Appellant. In considering the nature of that relationship we have taken account of the evidence presented from LM in terms of the interviews that he later gave to police and his evidence at the Crown Court. We did not have the opportunity of seeing any witness statement from LM within these proceedings nor did he give any oral evidence. Mr. Little in his opening submissions accepted that LM had a troubled childhood and that on a number of occasions he has failed to tell the truth. All of this reduces the weight that we have placed on LM’s evidence and the need to look for corroboration of what he has said about his relationship with the Appellant. We have considered all of the Appellant’s evidence as given in interviews to the police, at the Crown Court and in these proceedings. We have also taken account of all the other evidence that has been placed before us.

128. It is suggested by the Respondent that the Appellant and LM had repeated consensual sexual intercourse between December, 2006 and April, 2007, an allegation denied by the Appellant. There are a number of events which occurred during this period which were raised by the Respondent as being potentially of significant importance.

129. Firstly, on the 26^th or 27^th December, 2006 a visit had been arranged for LM to see his mother, accompanied by the Appellant. Mr. Sean Bray gave evidence that he was on duty at the time and had received a call from LM’s mother saying that LM was late. Sean Bray had tried to contact the Appellant by telephone, but received no response. LM and the Appellant had arrived late at LM’s mother’s house.

130. LM in his interviews with the police had initially indicated that he had had sexual intercourse with the Appellant on one occasion, but in a later interview he changed his story and said that he had a sexual relationship with the Appellant from December, 2006 onwards and had had intercourse with her about 200 times. That had included having intercourse in the Appellant’s car after having visited LM’s mother on the 26^th or 27^th December. While we accept that the Appellant and LM were in the car together, given the difficulties in relying solely on LM’s evidence, for the reasons already stated, we are not satisfied on the balance of probability that sexual intercourse did take place between LM and the Appellant on that date.

131. It was also stated by LM that as well as having sexual intercourse with the Appellant at SB on Christmas night 2006, he had also had intercourse there with her on a number of other occasions at SB. At his interview with the police on the 1^st May, 2007, LM stated that they had probably had sex about 35 or 40 times at SB. When the Appellant was being interviewed by the police on the 18^th June, 2007, she was asked whether in searching SB the police were likely to find any DNA belonging to LM’s on the mattress in a room in which she and/or LM might have slept. The Appellant then volunteered certain information, in particular that there might be semen on a mattress because on one occasion LM had wiped semen on her back and secondly that there might be blood from a cut eye. It was stated by the Respondent that this was clear evidence that the Appellant expected the police to find DNA evidence at SB which would support the allegation that she and LM had had sexual intercourse there. We regard the Appellant’s evidence both in relation to semen and blood as being fanciful and unbelievable, but more importantly the police themselves did carry out a search and two mattresses were removed from SB. The forensic officer examining them concluded that they did not assist in addressing whether or not LM and the Appellant had had any form of sexual activity on those mattresses.

132. There is then the incident on the 13^th February, 2007 when the Appellant took LM to a review meeting when they arrived late. The fact that they were together and arrived late whilst potentially providing an opportunity for sexual intercourse to have taken place, however Rose Marsh when she gave evidence accepted that she had initially given the Appellant the wrong address of the review meeting. Accordingly there is a credible explanation as to why the Appellant and LM were late and therefore on the balance of probabilities we do not find that the Appellant had sexual intercourse on this date.

133. We then turn to the 19^th February, 2007 and the evidence of Ms. Boroncova; that evidence consisting primarily of a statement made to the police on the 15^th May, 2007, her statement in these proceedings, dated the 30^th July, 2009 and her oral evidence at the Tribunal hearing. Although Ms. Boroncova acknowledged when she gave evidence that LM had subsequently made a complaint about comments that she had made to him, we do not seek to say that Ms. Boroncova was in any way motivated to give false evidence against either LM or the Appellant. Nevertheless we have some doubts regarding the accuracy of her claim that on the 19^th February, LM had grabbed the Appellant’s breast and shaken it for 5 to 10 seconds.

134. The reason that causes us to doubt whether this accurately records what happened is largely because Ms. Boroncova did not report the matter to any of her supervisors at the time, despite saying in evidence that she had been shocked as to what had occurred. Although the 19^th February was stated by Ms. Boroncova to be her first official day working for Care UK she would undoubtedly have received some training and instruction prior to that date and we do not find it credible that if LM had behaved in the way Ms. Boroncova suggested, that he did that she would not have tried to report the incident to someone. In her witness statement of the 30^th July, 2009 she stated that she did not know the procedures, but when she gave evidence at the hearing she stated that she had been recommended not to tell anyone. It is unclear who or in what circumstances it is said that that recommendation was made.

135. Secondly, Ms. Boroncova gave a statement to the police on the 15^th May, 2007, which is relatively shortly after the incident on the 19^th February, 2007. In that statement she gives details regarding her involvement with LM, including suggesting that LM had made a disclosure to her of having had sexual intercourse with the Appellant in April, 2007. Again we do not find it credible that if the incident on the 19^th February, 2007 was as significant as Ms. Boroncova is now stating that it was, that in the context of being asked about LM and the Appellant, she would not have mentioned it to the police. The incident was denied by the Appellant and on the balance of probabilities we do not accept that whatever took place on the 19^th February, 2007 is evidence of their being a sexual relationship between LM and the Appellant.

136. We would also make the point in terms of the suggestion made by LM that he had sexual intercourse on a number of occasions with the Appellant at SB that whilst there may have been occasions when the Appellant and LM were alone at the home, even including the night shifts. on the balance of probabilities, given the number of staff that were coming and going into SB a total of 9 we were told, we do not consider it likely that a sexual relationship would have been happening without any of the staff becoming aware of the situation. Whilst several witnesses told us that they were concerned about an inappropriate relationship between LM and the Appellant, none of them gave any evidence of any of them having witnessed or having a suspicion of a sexual relationship taking place at SB.

137. During the course of the hearing we heard a considerable amount of evidence regarding telephone contact between LM and the Appellant. We were shown a number of mobile telephone records as well as evidence from Orange, the mobile telephone provider. It was not disputed by the Appellant that mobile phone numbers ending 1531 and 5195 related to phones used by her, but she did challenge that numbers 4095 and 1046 belonged to her.

138. As far as 1046 is concerned, evidence provided by Orange indicated that this was a phone number where the subscription started on the 7^th November, 2006 and where it was activated on the 29^th November, 2006. The account and subscriber were shown to be the Appellant, with the recorded address being that of the Appellant. The Appellant suggested that LM had registered the phone in her name. We accept given the evidence from Orange that it would have been possible for someone other than the Appellant to register a phone in her name. We also accept that LM prior to any involvement with the Appellant has shown that he is capable of being devious and that also after March, 2007 there were examples of him lying about his identity. However as of the 7^th November, 2006 that was at a relatively early stage of LM’s involvement with the Appellant and on a balance of probabilities we do not consider that LM would at that point have had a reason to seek to register a telephone in the name of the Appellant. We therefore conclude that the most likely explanation is that this was a phone that the Appellant registered in her own name. This conclusion is also consistent with the usage of the phone, in that the phone records show that it started to be used from the 29^th November, 2006 which was the same date that Orange had placed a call restriction on the Appellant’s phone 5195.

139. The telephone records show considerable contact between the Appellant and LM both in terms of texts and calls during the period 8^th November to the 29^th November, 2006. After 29^th November 2006 those communications continue and 1046 is called on a regular basis. A considerable number of those calls are late at night and whilst some of them are of a short duration there are others which are considerably longer. We therefore accept that despite the Appellant having told Rose Marsh at the meeting on the 29^th November that she did not want telephone contact with LM that after that date there was regular contact via text and telephone, which the Appellant did not report to her supervisors or take any steps to prevent. We therefore conclude that the Appellant has not told the truth about the amount of contact when she has given evidence in these proceedings. It also shows in our view a developing relationship between the Appellant and LM, particularly given that the amount and timing of the calls. However we do not regard it as sufficient evidence in itself or indeed combined with other evidence to satisfy us on a balance of probabilities that there was a sexual relationship going on between LM and the Appellant in the period to March, 2007.

140. On the 9^th March, 2007 LM absconded from SB and was away for over a week. We accept that it is possible that LM was with the Appellant at her home during this period, but having heard from SP that she saw the Appellant during that week, that the Appellant had looked after her own son whilst she was shopping and overnight on the 11^th March, and that when she had gone to the Appellant’s house there had been no restrictions on her movements within the house, we do not accept LM’s evidence that he was with the Appellant at this time, prior to the 15^th March, 2007.

141. The Appellant at her Crown Court trial said that she first saw LM on Thursday 15^th March at about 7.00pm in the evening when he had turned up at her house. He was at this time supposed to be at SB. The Appellant told the Crown Court jury that she knew that LM should have been at SB yet despite this she let LM into her home. The Appellant states that she could not call SB or the police because she had no credit on her mobile telephone. The Appellant’s evidence in relation to this is inconsistent in that the transcript of the Crown Court trial indicates that she stated that on the following day after she alleged she had been raped, she had gone back home and then telephoned the police to come and collect her to go to see a doctor for the purposes of medical examination, which suggests that on the 16^th March, 2007 she did have credit on her phone.

142. The Appellant accepts that LM stayed overnight at her home on the 15^th March, 2007 sleeping downstairs, the Appellant’s two children were staying at her mother’s overnight. On the following morning the 16^th March, 2007 the Appellant states that she went to her mother’s to collect the children. The Appellant gave no credible explanation in her evidence as to why she did not phone SB from her mother’s home when collecting the children on the 16^th March, to let staff know that LM was at her house. This in the context of LM not only having absconded from SB, but also the fact that when he had come round to the Appellant’s house on the 15^th March, the Appellant had stated that he was drunk. In evidence the Appellant stated that she was putting the onus on LM to call SB, all of this in our view is inconsistent with LM being an unwanted visitor to the Appellant’s home.

143. What is even more inconsistent with the suggestion that the Appellant did not want LM to be at her home is that the Appellant should, on the 16^th March, having managed to exit the house to collect her children, then return home with her daughter, when there was a clear possibility that LM would still be there.

144. After returning to the house it is accepted by the Appellant that sexual intercourse then took place between her and LM in her bedroom. We consider that by this stage the Appellant was considerably out of her depth in dealing with LM. She had put herself in a position where, as LM’s key worker, he had developed a infatuation with her to the extent that he had written a love letter to her and was able to telephone her at all times of the day and night. The Appellant took no steps to stop this happening and indeed may have been flattered and encouraged by it. She may have believed at the time that it was a relationship that she could control, but in our view the situation quickly got out of control and the Appellant was unable to deal with the consequences. It is in this context that we consider that the sexual intercourse which took place on the 16^th March has to be viewed as well as the events that occurred afterwards.

145. A number of items were subsequently found at the Appellant’s home including a condom which was discovered under her bed. The condom was shown to have LM’s DNA on the inside and the Appellant’s DNA on the outside. Whilst this supports the proposition that sexual intercourse took place between the Appellant and LM, we accept that in itself it does not establish whether that sexual intercourse was consensual or not.

146. It was suggested on behalf of the Respondent that the Appellant gave conflicting evidence as to whether or not LM had worn a condom when sexual intercourse had taken place on the 16^th March, 2007. Also that the Appellant had stated that she had begun her period on the 16^th March and that the medical examination document includes a question as to whether or not there was menstrual bleeding to which the answer had been recorded as “yes” and that this was supportive of the contention that the Appellant was bleeding during sex. The Respondent then submitted that given no blood was found on the condom taken from the Appellant’s house and that the doctor who medically examined the Appellant on the 17^th March had ticked the box “no” in relation to the question “condom used?” points to the condom not having been used on the 16^th March and that therefore the condom that was found at the Appellant’s home must have related to earlier intercourse.

147. We heard no evidence from the doctor who examined the Appellant as to this issue and the Appellant herself when she gave evidence stated that she had not started bleeding straightaway on her period. We therefore conclude that the evidence regarding the condom does not assist us in establishing on the balance of probabilities that the Appellant had intercourse with LM prior to the 16^th March or as to whether the intercourse that did take place on the 16^th March was consensual or not.

148. There were however a number of other items found at the Appellant’s house including photographs of LM and a rail route printout for the 31^st March and the 1^st April. The Appellant stated that the photographs were ones that she had arranged to be developed to assist LM with a particular project and that she had not had a chance to hand the photographs into SB. We consider on the balance of probabilities that these photographs were ones that she had kept in the context of her developing relationship with LM.

149. After the alleged rape on the 16^th March the Appellant states that she had left her home with LM in the car to collect her son and LM had got out of the car during the course of the journey at traffic lights. After LM got out of the car the Appellant did not immediately report to anyone that she had been raped. She stated in her evidence that she tried two phone boxes, but without success. She had wanted to phone her mother but stated that the phone boxes were not working. The Appellant then proceeded to drive back to her home, having collected her son, but did not go into the premises.

150. We acknowledge that if someone is raped it is clearly a very traumatic experience and a victim may not act in a totally rational way, but considering all of the events leading up to the 15^th and 16^th March in terms of the Appellant’s developing relationship with LM, her return to the house on the morning of the 16^th March seems to us to be more consistent with the Appellant having participated in consensual sexual intercourse rather than rape and consistent with the Appellant’s actions in not contacting anyone after LM had got out of her car either by telephone or going directly to the police station or to her mother, but instead choosing to return to the very place where she alleges the rape took place.

151. The police become involved shortly afterwards when LM is seen in the vicinity of the Appellant’s home approaching officers in a distressed way indicating that as a 16 year old he has just had intercourse with a 31 year old woman. This is recorded in the statements of the police officers who were present. We consider that this behaviour on LM’s part is more consistent with intercourse having taken place with the Appellant for the first time, rather than intercourse having taken place on numerous occasions over a much longer period of time. It is also consistent with there having been an argument after intercourse had taken place between the Appellant and LM, the effect of which was to leave LM in a very distressed and confused state.

152. It is also important in our view to look at events that occurred after the Appellant made the allegation of rape against LM. Firstly, on the 19^th March, 2007 the Appellant retracted the allegation of rape and stated that intercourse had been consensual. Whilst again we accept that it may not be uncommon for rape victims not to want to go through the trauma of a prosecution. In the context of this case, we consider the Appellant’s actions are consistent with our earlier conclusions that she had become involved in a relationship with LM which had got out of hand and where consensual sexual intercourse had taken place. The Appellant was unable to control the situation and faced with LM publically announcing to police officers that he had a relationship with a 30 year old woman, the Appellant panicked and made an allegation of rape which she then felt compelled to withdraw, given that intercourse had been consensual. The Appellant sought to place the blame for her retraction on DC Taylor, the officer who took her retraction statement and this was something that DC Taylor was asked about at the Crown Court trial, where he vigorously denied that he had in any way behaved inappropriately. We did not have the opportunity to question DC Taylor, but looking at the Appellant’s evidence overall, we find on a balance of probabilities that the Appellant retracted her rape allegation because sexual intercourse had been consensual. It is also consistent with the Appellant’s actions after the 17^th March.

153. It is accepted by the Appellant that she met with LM at Telford Railway Station on the 31^st March, 2007. There is also evidence of contact between the Appellant and LM by way of telephone calls during the period 17^th March to 31^st March from LM’s phone number 8610 to phone number 4095. In evidence the Appellant was asked about calls made on the 22^nd March, 2007 and the Appellant accepted having received a call in the early hours of the morning. She stated that she always returned calls and became anxious if the number was withheld. The Appellant also stated that she would have known that it was LM’s number but would have telephoned him anyway to see if everything was alright. In terms of calls after March, 2007 the records show calls from a number that it was accepted was being used by LM to number 1531 which the Appellant has accepted was her number but also to a phone number 4095 which starts to be used in March, 2007. Whilst the Appellant did not admit that number 4095 was hers, the timing of the calls to that number particularly in the early hours of the 21^st March, 2007, when the Appellant acknowledges having received a call from LM and calls on the afternoon of the 27^th March, 2007 from LM to number 4095, which are at a time following his release from the police station in our view show on a balance of probabilities that number 4095 was one being used by the Appellant, that is important because it shows that the Appellant was in phone contact with LM after sexual intercourse on the 16^th March and it also enabled her to make arrangements to see LM at Telford on the 31^st March.

154. It is not disputed that the Appellant did meet LM at Telford on the 31^st March although precisely what occurred on that meeting is a matter of a dispute. Nevertheless the very fact that the Appellant would choose to meet someone who she alleges had raped her, is in our view not credible and is more consistent with the Appellant trying to extricate herself from the situation that she had put herself in with LM. Mr. Waite gave evidence that he saw LM and the Appellant in a car park some distance away from Telford Railway Station on the 31^st March and that he also saw LM and the Appellant kissing and hugging each other. Mr. Waite stated that he was some distance away and that there was another car in-between him and the car that the Appellant was using. Whilst he states that he made notes of what he saw at the time, he was nevertheless not able to pick out the Appellant at an ID parade.

155. Mr Waite stated that he attended with a friend, Mr. Gary White who although made a statement to the police in which he also stated that he saw the Appellant and LM kissing, he did not turn up to give evidence at the Crown Court and he provided no additional evidence within these proceedings. We also note that in his statement Mr. White states that he took three photographs on his mobile phone and he and Mr. Waite later saw the Appellant’s car outside her house. That raises the question in our view as to why a mobile phone was not used to take pictures of the Appellant and LM in Telford. Having considered the evidence overall we are not satisfied on the balance of probabilities that the Appellant and LM did participate in kissing and hugging in the car, but the very fact that the Appellant chose to met LM at all, particularly having been given advice by her sister not to meet him, does in our view support the proposition that the sexual intercourse which had taken place on the 16^th March was consensual and is inconsistent with a rape being perpetrated by LM.

156. We should also mention the evidence of Mr. Bob Titley who stated that on the 20^th March, 2007 he had gone to collect LM from a location in Donnington, LM again having absconded from SB. Whilst LM was in his car, Mr. Titley states he overhead a conversation in which he stated that he was able to identify the Appellant’s voice on the other end of the phone. LM had been drinking and was a young man who clearly had a drink problem, we therefore found it somewhat surprising that Mr. Titley insisted that LM finish the cans of alcohol, before getting into Mr. Titley’s car. We should also say that we find it even more surprising that when LM’s room at SB was searched 270 empty cans of lager were found in his room. Mr. Titley stated that LM was making calls on a mobile phone whilst he was in Mr. Titley’s car and that some of those calls appeared to Mr. Titley to be fictitious in the sense that when LM was talking into the phone when there was no-one at the other end. As far as Mr. Titley being able to identify the Appellant’s voice is concerned whilst he had previously met the Appellant that was for a relatively brief period of time and given that he would have been some distance from the phone when LM was making the call, we are not satisfied on the balance of probabilities that it was the Appellant’s voice that he heard. We are supported in this view by the evidence from SP who stated that her son Josh (whose name Mr. Titley said that he heard being mentioned as someone who was with Appellant), was not actually with the Appellant at the time Mr. Titley stated that he overheard the call.

157. We take into account that the Appellant was charged with sexual activity with LM, a person with whom it was said that she was in a position of trust and that she was acquitted of those charges. In those proceedings the Appellant had maintained that she had been raped by LM. The transcript of the trial made it clear that the Judge directed the jury to find the Appellant not guilty on all counts because the Appellant was not in a position of trust as far as LM was concerned, during the period for which she had been charged and on the dates where she had been in a position of trust. The outcome of those proceedings was not however that there had never been a sexual relationship between the Appellant and LM.

158. Having considered the evidence overall we come to the conclusion that there is insufficient evidence to establish on the balance of probability that there was an ongoing sexual relationship between the Appellant and LM prior to the 16^th March, 2007. We are however satisfied that the Appellant did have consensual sexual intercourse with LM at her home on the 16^th March, 2007 and that this does constitute misconduct. LM was a young man with significant and complex difficulties and for whom for a period of time the Appellant was his key worker. Although she had ceased to be his key worker by the 16^th March, nevertheless he was a young man who she had worked with very closely in a care role. We have no doubt that the Appellant’s behaviour in the way in which she conducted herself with LM lead him to believe, whether intentionally on the Appellant’s part or not that there was an ongoing relationship between them. The Appellant’s actions in allowing him into her home and having sexual intercourse with him undoubtedly caused further damage and distress to LM, as his behaviour after the 17^th March demonstrated.

159. There was an ongoing period of harassment by LM of the Appellant’s family for which he was prosecuted. This in our view is consistent with a young man who has failed to come to terms with what has happened between himself and the Appellant and the fact that after having sexual intercourse with him the Appellant then sought to distance herself from him. This for someone with his troubled background including a diagnosis of an attachment disorder, in our view caused him significant harm.

160. It is submitted by the Respondent that although the primary contention so far as misconduct was concerned related to the Appellant having sexual relations with LM, there were also other issues of misconduct. It is appropriate that we address those as well.

161. The first of those was in relation to the unplanned visit by LM to see his father on the 13^th February, 2007, when he should have been attending a review meeting. In our view the Appellant had not received adequate training from Care UK and did not receive appropriate supervision. This meant that she was ill prepared to deal with the events that occurred on the 13^th February, 2007, she was not advised by her employers that LM’s father lived in the vicinity of the review meeting nor was she given sufficient information regarding LM’s background or his relationship with his father to be able to cope with the situation that arose. We accept the Appellant’s evidence that given what occurred she was not in a position to physically prevent LM from seeing or speaking to his father. We therefore make no finding of misconduct in relation to that incident.

162. The second allegation was that the Appellant failed to report LM for having sexually assaulting her by touching her breast on the 19^th February, 2007. As we have already indicated we were not persuaded by Ms. Boroncova’s evidence that LM did in fact behave in the way in which she suggested and we are not satisfied on a balance of probabilities that the Appellant was sexually assaulted.

163. As regards the telephone contact that the Appellant had with LM we are prepared to accept that she may not have realised prior to the 29^th November, 2006 what was or was not appropriate in relation to contact outside working hours with LM. However we are satisfied that the position was made clear to her at the meeting on the 29^th November and that despite this she continued with telephone contact with LM, which formed part of the relationship that was developing with LM and no doubt lead LM to consider that he was in a very close relationship with the Appellant. The Appellant took no steps to prevent the telephone contact or report it to her management and we find this to be misconduct which and which contributed to LM believing that he was in a relationship with the Appellant, which caused him harm.

164. As we have already indicated we consider that after LM first arrived at the Appellant’s house on the 15^th March, 2007 there were ample opportunities for her to have reported his presence to SB, both on the 15^th March itself and certainly on the 16^th March when the Appellant left her home, where even if public phone boxes were not working she could have gone to the police station which was very near where she lived to report him missing, but chose not to do so. This failure to notify SB that LM was at her home, we regard as misconduct. The Appellant stated that LM was drinking on the 15^th March during the time that he was with her and on the 16^th March she had sexual intercourse with him. All of this we accept caused LM harm and we find this to be misconduct as well.

165. Finally, meeting LM secretly on the 31^st March forms part of the aftermath of the Appellant having had consensual intercourse with him and as such forms part of the misconduct that we have found against her.

166. Having made findings of misconduct against the Appellant the second issue that we need to consider relates to the suitability of the Appellant, firstly to work with children. We consider this to be one of those cases where the Appellant’s misconduct is so serious that it follows that she cannot be considered to be suitable to work with children. The Appellant demonstrated little or any understanding of how her conduct in allowing LM to believe that he was in a relationship with her and then to have sexual intercourse with him, impacted on LM.

167. Having considered all the circumstances and in particular the findings of misconduct against the Appellant we also include that she is not suitable to work with vulnerable adults.

168. Accordingly it is our unanimous decision that both the Appellant’s appeals are dismissed.

Decision

Appeals dismissed

Stewart Hunter (Tribunal Judge)

Bridget Graham (Specialist Member)

Jim Lim (Specialist Member)

First-tier Tribunal (Health Education and Social Care Chamber)