Ryde v Secretary of State [2006] EWCST 857(PVA) (16 July 2007)

Paula Ryde
v
Secretary of State

[2006] 0856 PC
[2006]857.PVA

BEFORE
Mr Laurence J Bennett (Chairman)
Ms Marilyn Adolphe
Mrs Carol Caporn

On
2 and 3 July 2007

At
18 Pocock Street, London

Representation

1.	Ms Paula Ryde, the Appellant was represented prior to the hearing by Messrs Gates & Moloney, solicitors but was not represented at the hearing.  

2.	The Respondent was represented by Mr Jonathan Auburn, a barrister.

Appeal 

3.	Ms Ryde appeals under Section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Education & Skills under Section 1 of that Act to include her in the list of individuals who are considered unsuitable to work with children.

4.	Ms Ryde appeals under Section 86(1) of the Care Standard Act 2000 against the decision of the Secretary of State for Health under Section 81 of that Act to include her in the list of individuals who are considered unsuitable to work with vulnerable adults.

Preliminary 

5.	On 22 March 2007 His Honour Judge David Pearl, President of the Tribunal made directions for the hearing.  

6.	His Honour Judge Pearl's directions included a restricted reporting order under paragraph 18(1) of the Protection of Children and Vulnerable Adults and Care Standards Regulations 2002 (the Regulations):  There be a Restricted Reporting Order under Regulation 18(1) 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 service user, such Order to continue in force until the conclusion of the hearing and the Tribunal to consider its continuation at the hearing itself."

Evidence and submissions

7.	In accordance with the directions the Respondent prepared a consolidated bundle for the hearing.  This includes witness statements of Ms Carol Lusher and Miss Kirsty Hanna on the Respondents' behalf and Ms Ryde, Pastor Mark Weeden, Mr Terence Henry Thraves, Mrs Lucy Barr-Hamilton and Miss Julia Mercer-Wilson on the Appellant's behalf.  

8.	The Appellant, Ms Lusher, Miss Hanna, Pastor Weeden and Mrs Barr-Hamilton gave oral evidence at the hearing.

9.	Following voluntary work in Colombia with an organisation for street children, Ms Ryde attended a Bible College in Midhurst, Sussex.  Whilst there she responded to an advertisement by Asphaleia Care for a House Parent at xy (the House).  She was successful; on 10 November 2003 after a two-week induction, during which she shadowed a counterpart at another house, she became resident House Parent.

10.	The House was for up to five unaccompanied asylum seeking children aged between 16–18.  Her duties included meeting children's emotional and practical needs, promoting independent living and planning for the future.  This included involvement in children's care plans, reviews, pathway planning and inter-agency collaboration. Ms Ryde stated that she felt she was a substitute mother for the children.  It required her residence at the property save for two separate days off each week.

11.	Ms Lusher, Asphaleia's Director of Care stated that: "The house parent's role is to provide a safe and nurturing environment for the young people.  This involves supporting the residents to develop their independence skills as well as maintaining the household.  House parents have a budget to purchase food and are responsible for the overall cleanliness of the house.  The house parents are involved with social workers in assessing the needs of the young people placed in their care.  On arrival, the house parent needs to ensure that the young person's room is ready for him/her, show him/her around, take him/her to the doctor to register him/her and to have medical checks, assist him/her in registering at a school and attend solicitors with the young person when he/she is making immigration applications."  

12.	Z, said to be an orphan from Liberia arrived at the House as an unaccompanied asylum-seeking child.  The Appellant stated that Z was "a breath of fresh air" as he had good English and was very helpful and friendly.  She described him as "a good ally" and said that he assisted in managing difficulties with other children and was good company to have around.  She set out in her statement that: "He would enjoy chatting to me and would calm me down when I was stressed about the girls' bad behaviour."  

13.	Ms Ryde said that on one occasion when she was in the kitchen, Z came behind her, put his arms around her with his hands over her breasts.  She shook him off and gave him "a flea in his ear."  He explained that he had attempted to hug her and it went wrong.  She mentioned this incident to Ms Lusher during a supervision visit but declined management intervention.

14.	Ms Ryde accepts that between 17 August and 6 September 2004 she had sexual intercourse with Z.  Her statement includes: "I have very little recollection of the incident other than him being on top of me and trying to talk him into stopping.  I tried to push him away but he was begging me to let him carry on.  I remember feeling scared and confused, knowing that it was wrong but being unable to stop it.  I was sick with shame and repulsed by what was happening because at no point have I ever 'fancied' Z or seen him in a sexual way.  I had viewed myself as a mother figure to him and he had been my favourite boy.  I didn't want to hurt his feelings and remember thinking that it had gone to far. In the end I gave up and just let him finish."  At the hearing she stated that Z forced her to have sexual intercourse and she was "raped."  She emphasised that she did not want it, she did not pursue it or give consent for it to happen.  

15.	In interview by a member of the Police in the presence of a social worker on 28 June 2006, Z stated about Ms Ryde that: "We had sex" in answer to the question, "did it ever happen again?" "Yes, it does happen" and in answer to the question, "was it more than twice?" "Yes I think so but I can't remember."  Ms Ryde stated that it only occurred once; she has no recollection of any other occasion.  Her statement explains: "I was sick and scared and disgusted at myself for letting it happen.  I begged him not to tell anyone as I was petrified that I would lose my job and home.  Z wanted to continue a sexual relationship as he told me he believed he was in love with me (he told me this after the incident and not before it).  However, not only would this be inappropriate for professional reasons, I could not allow this as my feelings for him were completely different.  After this I avoided him as much as I could and very soon booked a holiday to get away from the situation."

16.	A short time after this Z started a sexual relationship with an unaccompanied female asylum seeking child who arrived at the House.  She and Z were often in each other's rooms. Ms Ryde, as directed by Ms Lusher was required to keep them apart, although she stated she received contrasting advice from social workers.  She said that this took Z' attention from her and relationships in the House became easier.

17.	Ms Ryde reported that Z told her that whilst Ms Lusher was looking after the House when Ms Ryde was on holiday, she had called Z into her room and made inappropriate sexual comments to him.  Ms Ryde did not repeat the actual comments as she said they were disgusting.  She did not believe them to be true but reported them to her Line Manager, Mr Josh Salo.  

18.	Around 2005 Ms Ryde became a member of Worthing Tabernacle Church.  She confided in her Pastors.  One, Pastor Mark Weeden stated that: "of her own initiative, Paula came to talk to our Associate Pastor, John Griffith, about a moral issue in her life about two years previously.  His advice to Paula was to go to her supervisor at Ashpaleia and tell her of the matter.  This she did.  From that meeting Paula was suspended and then asked to resign.  The matter did not rest there, leading to the consequences now under appeal."  Pastor Weeden said that several conversations took place over a two-week period, some for one and a half hours.  He explained the important moral issue was that sex outside marriage had taken place against Christian principles.  He gave guidance to Ms Ryde to advise her employers about what had happened.

19.	Ms Ryde stated that she had not previously advised her employers because she was afraid that she would lose her job and her home.  She was influenced by the "sacking" of a colleague with a small child who was given an hour to leave a house after allegations of racism by a child.  She also mentioned stress and difficulties in relations with management arising from a co-ordinated attempt by house staff to raise concerns about their conditions, for example, discontinuous days off.

20.	A personnel report of a meeting on 23 May 2006 by Ms Karen Olney, Director of Personnel at Asphaleia records: "Those present: Paula Ryde (houseparent, Asphaleia House), Carol Lusher, Director of Asphaleia Care and Karen Olney, Director of Personnel.
	"Paul had called the meeting asking to speak to Carol and Karen present.
	"Paula started by saying she had done something terrible.  She said that in September 2004 she had slept with one of the young people in the house, (Z) where she had been employed as a houseparent."
	"She said she was extremely sorry for the incident and had lived with the guilt since 2004 but had felt she needed to tell Asphaleia that it had happened.
	"She was asked how often this had happened and she said 'twice I think'.  When asked how old Z was at the time she said '16.'  Paul explained that Z had not forced himself upon her and she had not pursued him.  It was a situation she knows was unacceptable and unprofessional and one that she could not explain with any logic.  She said she was under considerable stress at the time and she had found him to be supportive."  Ms Ryde states she does not recall suggesting that it had happened twice.  She said this may have misrecorded the fact that Z had said it was twice.

21.	Ms Ryde was suspended immediately after the meeting and returned her House keys.  A week later, following advice from Ms Lusher "as a friend .......... as this would help her in future job applications," she resigned.  

22.	On 14 July 2006 Police visited Ms Ryde.  They notified her of the alleged crime and investigation.  They suggested she sought legal advice, subsequently she engaged Messrs Gates & Moloney, solicitors.  On 17 July 2006 she attended with her solicitor for interview under PACE Procedures.  The Sussex Police minute sheet records:  "Paula said that in March 2003 she was employed as a House Parent at Asphaleia House in Worthing which is a supported lodgings for asylum seeking children.  She admitted that she had sex with Z but said that she did not want it to happen although she let it.  She denied that she had been raped.  Paula said that she could only recall one occasion when she had sex with Z and can only remember that it happened and that he was on top of her.  She said that she told her manager, Carol Lusher because she had returned to being a Christian and felt guilty.  Paula said that she had no idea that by having sex with Z, who was sixteen at the time, she had a criminal offence."

23.	Ms Ryde attended a Police station for interview with her solicitor on 31 August where she agreed to a caution.  The caution records: "On or between 01st September 2004 and 30th September 2004 at Worthing in the county of West Sussex, being a person aged eighteen years or over, had sexual intercourse (whether vaginal or anal) with Z Ziah, a person under that age and at the time you were in a position of trust in relation to that person."  She was not placed on the Sexual Offenders Register.  Ms Ryde stated that both her solicitor and the Police advised her that the offence was not serious and that acceptance of a caution would not affect her in future.  She considers the Police had taken into account her assertion that she had been forced to have intercourse. 

24.	Ms Lusher wrote to the Manager of the Protection of Children Act List at the Department of Health on 21 June 2006 reporting the circumstances.  A provisional listing was made.  Ms Ryde, by her solicitors made observations.  Inclusion on both POCA and POVA lists was confirmed on 26 September 2006.  

25.	Miss Hanna detailed her services expectation of the role and duties of a House Parent and the opportunities Ms Ryde would have had to raise concerns about inappropriate behaviour by a child.  She outlined what would have happened had an allegation of rape been made to protect other young people and the person making the allegation pending investigation.

26.	Mrs Lucy Barr-Hamilton described Ms Ryde in praiseworthy terms, "trustworthy and supportive" however Mrs Barr-Hamilton was not aware of the events until after the Police investigation.  

27.	Mr Auburn's submissions on behalf of the Respondent included:
•	That the issue of misconduct is foreclosed by the Police caution and the Appellant's acceptance of her guilt
•	That in the issue of unsuitability the Respondents rely on the seriousness of misconduct noting in particular 
i.	The Appellant had sex with a child …
ii.	That the child was in her care ….
iii.	That he was a very vulnerable child …. 
iv.	Trust was a particularly important issue …"

Findings of the Tribunal on the evidence

28.	We conclude from the evidence that sexual intercourse took place between Ms Ryde and Z, a young person for whom she undertook responsibility within the House.  This was admitted by Ms Ryde at the hearing and as she accepted a formal caution by the Police, we do not consider it open to her to deny it.

29.	Ms Ryde stated that intercourse took place only once but she was not able to give full details of the circumstances in which it occurred.  She clearly regrets that it took place, in her own words she "shut the door on the whole incident" and has neither discussed nor dealt with it until her conversation with her Pastors.

30.	We accept that Ms Ryde has extreme regrets and has had difficulty confronting what occurred.  She suggested this as a reason for her lack of recall of detail.  Taking into account her acceptance that she has not provided complete details and bearing in mind Z' evidence to the Police, Ms Ryde's opportunities to challenge the written record of her interview and Ms Lusher's clear recollection of what Ms Ryde told her in the meeting she called that sexual intercourse took place on more than one occasion, we conclude on a balance of probabilities that it did.   We find that for a short period there was a relationship between Ms Ryde and Z, which included sexual intercourse.  Irrespective of doubts raised by Ms Ryde about the reliability of Z' remarks, we find support for our view in the relief she expressed following his focus upon a new female arrival.

31.	We find that the sexual relationship that ensued between Ms Ryde and Z was consensual.  Ms Ryde may have been unwilling or reluctant for it to commence but circumstances clearly arose in which it did.  We find little if any evidence that Ms Ryde was coerced or forced into sexual intercourse, she gave no details other than to say he was on top of her and felt that she had to have intercourse.  She has had opportunity to raise such a serious allegation over a considerable period and even if initially in some form of denial, she did not do so at the meeting she called with Asphaleia management or in interview with the Police.  She did not mention this at any supervision meetings or at inter-agency conferences relating to Z or others at the House when it might have been of particular relevance.  Ms Ryde explained that she did not want to get Z into trouble.  Notwithstanding her record of altruism, we do not accept that events that caused such depths of feeling would not have given rise to an allegation of rape, if that is what occurred. 

The Law

32.	The Tribunal's procedure is governed by the Regulations.  

33.	The purpose of the listing scheme is to protect children from those who are employed to work with them and to maintain public confidence in the care provided to children.  Listing under the scheme involves a difficult balancing exercise between the safety of children and the rights of individuals to have their livelihoods and reputations safeguarded (see Lady Justice Hale in R v The Secretary of State for Health ex parte C (2000) EWCA 49).

34.	Under Section 1 of the Protection of Children Act 1999 the Secretary of State must 'keep a list of individuals who are considered unsuitable to work with children.  By Section 4(1) an individual who is included in the list may appeal to the Tribunal against the decision to include him in the list.

35.	By Section 4(3) if "the Tribunal is not satisfied of 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 allow the appeal and direct his removal from the list; otherwise it shall dismiss the appeal …"

36.	We consider that Section 4(3) relates to the present and the Appellant's current suitability at the date of the hearing is to be determined by the Tribunal.

37.	Appeals against inclusion in the Protection of Vulnerable Adults List are governed by Section 86 of the Care Standards Act 2000.

38.	By Section 86(3)(a) if "the Tribunal is not satisfied of either of the following, namely – (a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult and (b) that the individual is unsuitable to work with vulnerable adults, the Tribunal shall allow the appeal ..…"

39.	In Ms Ryde's case the decision to place her on the POVA List was as a result of her inclusion in the POCA List.  In that case, Section 92(4) of the Care Standards Act 2000 provides that misconduct relating to a child for the purposes of the POCA List satisfies the requirement of misconduct relating to a vulnerable adult.  However, the issue of unsuitability to work with vulnerable adults falls to be considered separately.

40.	The burden of proof is upon the Secretary of State.  The standard of proof is the civil standard upon a balance of probabilities.

Conclusions with reasons

41.	Taking into account our findings we are satisfied that Ms Ryde's inappropriate relationship with Z constitutes misconduct within Section 4 of the Protection of Children Act.  We consider that Ms Ryde's misconduct involves a severe breach of the trust appropriate between adult and child.  It led in our view to a reversal of role which the evidence shows involved a degree of reliance of her upon him.  Z could not have received appropriate guidance, direction or attention to his needs because of this compromise in their relationship.  Her objectivity and ability to make decisions and approaches in his management have been adversely affected.

42.	Ms Ryde's misconduct affected her ability to manage the other young people at the House and take appropriate steps for their needs, particularly when affected by Z' own activity.  She was constrained from reprimanding or taking full management of him.  She was burdened by the secret between them.  This is clearly so in respect of the female with whom he was stated to have formed a sexual relationship.

43.	Ms Ryde's misconduct harmed Z, a child and other children in the House.  We have considered whether or not she is unsuitable to work with children.

44.	We have particular concern for Ms Ryde's naivety and lack of insight into the effect of her misconduct and its consequent effect upon her ability to discharge her duties for the children.  Her actions subsequent to the misconduct show that she has not appreciated the extent to which her judgment was impaired and despite her revulsion about what occurred, she has not identified that she has was unable to discharge her responsibilities to Z and the children in her care.

45.	Much of what Ms Ryde presented related to her own introspection about moral considerations arising from these events and not upon practical ways forward to overcome the problems highlighted.  She had the opportunity during the proceedings to state what she might have done differently, however, any response was facile and did not disclose an analytical insight or professional view of her role.  She did not identify learning needs or practical measures she might take to prevent or diffuse similar situations.  She portrayed a lack of knowledge about the responsibilities of looking after children and particularly, in this case, those approaching young adulthood.  She was not able to judge the priorities of the situation.  Despite misgivings about Asphaleia's support and supervision arrangements, we have no confidence that she would be able to cope with similar or different crises involved in care and conclude that she is unsuitable to work with children.  For similar reasons, particularly noting the age of the children at the House, we conclude that she is unsuitable to work with vulnerable adults.

46.	Whilst not determinative we observe that her employment in positions with similar responsibilities notwithstanding the caution she accepted would undermine public confidence in the service in which she might be engaged.

47.	We have concluded that Ms Ryde was unable to cope in the role she chose and is unsuitable to continue.  We accept however that she was well intentioned in her wish to be of service and has a sense of morality.  We understand that she has found employment and have no reason to suspect that she will be unsuccessful outside the caring sphere. 

Restricted Reporting Order

48.	We make order in the terms of the Restricted Reporting Order made by His Honour Judge Pearl and recorded at paragraph 6. save that it shall continue in force indefinitely.

Order

Our unanimous decision is: 

Ms Ryde's appeal is dismissed.

Mr Laurence J Bennett (Chairman)
Ms Marilyn Adolphe
Mrs Carol Caporn

Date:	16 July 2007