MG v Secretary of State for Children, Schools and Families, Court of Appeal, October 10, 2008,  EWCST 1170(PT)
|Resolution Date:||October 10, 2008|
|Actores:||MG v Secretary of State for Children, Schools and Families|
MG v Secretary of State for Children, Schools and Families  EWCST 1170(PT) (03 October 2008)
THE SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES
Mrs. Carolyn Singleton
Ms. Michelle Tynan
Mr. Ron Radley
Heard at the Magistrates Court, Penrith on 30th September 2008
MG, (the Appellant), appeals against a direction by the Secretary of State, (the Respondent), made under section 142 of the Education Act 2002 that his name be included on the list of people prohibited from working with children because of his unsuitability. His appeal lies under section 144(1)(a) of that Act.
The Appellant appeared in person and the Respondent was represented by Ms. Olley of counsel.
Burden of Proof
The burden of proof lies with the Respondent; the standard of proof being on the balance of probabilities.
At a directions hearing on the 16th June 2008, a restricted reporting order was made together with a direction that the hearing should take place in private.
Ms. Olley, on behalf of the Respondent, objected to the documents submitted by the Appellant shortly before the date of the hearing and which appeared at documents 26A - E of the bundle, her objection being that these documents were not before the Secretary of State when he made his decision to include the Appellant on the list. However, the Tribunal was satisfied that, whilst the Secretary of State had not had the actual letters before him at the relevant time, the content of those letters had been before him, albeit in a different form.
Facts of the Case
The Appellant was a voluntary canoe instructor in his spare time. On 7th June 2003, he instructed a canoeing group in Ennerdale, Cumbria. He had arranged for two teenage girls, whom he had previously taught canoeing, to assist him. After he had finished teaching the group, he drove the girls, EP and HO, back to the area where they both lived. This was in accordance with the arrangements he had made with the girls' parents. In the course of that journey, the girls discussed a party they were both going to attend and talked about boyfriends.
The Appellant dropped HO off at a pre-arranged place to be collected by her mother and continued with EP, who was fourteen years old, to her home address. During this journey a further discussion about boys developed and the Appellant conducted a very intimate discussion with EP, warning her of indulging in under age sexual activity and pointing out that having sex for the first time could be painful. He explained to how her hymen could be torn. In interview with the police he admitted that he may have touched her hand and it may have been that, at that time, her hand was tucked away between her legs which were crossed.
The Appellant then stopped the minibus he was driving on the main road between two villages. He hugged EP and asked if she had started her periods. He explained to her, in detail, how to put a condom on. He explained the dangers of under age sex and said that if he were to have sex with her he would be committing a criminal offence. He told EP that she was a beautiful girl.
On the 1st October 2003 the Appellant was cautioned by Cumbria Police for indecent assault on a female under the age of 16 contrary to s. 14 of the Sexual Offences Act 1956 and was placed on the Sex Offenders Register for 5 years.
The Respondent was not notified of this information by Cumbria Police until March 2007. The Appellant was then contacted and told that it was proposed that he should be placed on the list held under S.142 of the Education Act 2002. He was invited to make representations and did so but by letter dated 25th September 2007 he was notified that he was barred from work to which that section applies on the grounds that he is unsuitable to work with children. That letter which appears at document 81 of the bundle states that, in making that decision, the Respondent considered the caution accepted by the Appellant for indecent assault on a female under the age of 16, his inclusion on the Sex Offenders Register, the background information provided by Cumbria Police and the Appellant's own representations and testimonials.
On 6th November 2007, the Appellant appealed his inclusion on the list to this Tribunal
Appeal against the...
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