Children's Guardian v BQP

[2016] NSWSC 1099

Supreme Court

New South Wales

Medium Neutral Citation:	Children’s Guardian v BQP [2016] NSWSC 1099
Hearing dates:	8 March 2016
Decision date:	08 August 2016
Jurisdiction:	Common Law
Before:	Adams J
Decision:	1. Summons dismissed.  2. Plaintiff to pay the costs of the defendant as agreed or assessed.
Catchwords:	ADMINISTRATIVE LAW – judicial review – working with children check clearance – real and appreciable risk
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), s 63 Child Protection (Prohibited Employment) Act 1998 (NSW), s 9(2) Child Protection (Working with Children) Act 2014 (NSW), ss 14, 15(4), 18(2), 19, 27, 30(1) Civil and Administrative Tribunal Act 2013 (NSW), s 38 Evidence Act 1995 (NSW), s 142
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 BQP v Children’s Guardian [2015] NSWCATAD 160 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 R v New South Wales Commission for Children and Young People [2002] NSWIRComm 101 Young People v V [2002] NSWSC 949; 56 NSWLR 476
Category:	Principal judgment
Parties:	Children’s Guardian (Plaintiff) BQP (Defendant)
Representation:	Counsel: V Hartstein (Plaintiff) D Burwood (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Browns Legal & Consulting (Defendant)
File Number(s):	2015/255128
Publication restriction:	Non-publication order in respect of the name of the defendant, any child and any other person which would identify the name of the defendant referred to in the proceedings.

Judgment

Introduction

1. The defendant is a medical practitioner who applied for a Working with Children Check Clearance pursuant to the Child Protection (Working with Children) Act 2014 (NSW). The Office of the Children’s Guardian conducted a risk assessment for the defendant pursuant to s 14 because of a finding of the Department of Family and Community Services (FACS) of sexual misconduct falling within cl 2 of Sch 1 to the Act. This assessment essentially concerned two areas of controversy: the first arose out of mentoring children under a community mentoring program between 2004 and 2005 (the first controversy); and the second out of an occasion in April 2013 of treating a child who came to the Emergency Department of the hospital where the defendant worked (the second controversy). Following the risk assessment the Guardian issued a “Notice of proposed refusal of application” under s 19 of the Act, and, following the defendant’s submissions, refused to give him a clearance. The defendant applied under s 27 of the Act to the Civil and Administrative Tribunal for administrative review of this refusal.

2. The defendant gave evidence, as did Dr Lachter, a psychiatrist, and the Director of Medical Services at the hospital where the defendant worked at the time of the second incident. A substantial volume of documentary material was also considered by the Tribunal. On 4 August 2015 the Guardian’s decision to refuse a clearance was set aside and the Guardian was ordered to grant a clearance to the defendant: BQP v Children’s Guardian [2015] NSWCATAD 160. The Guardian appealed to this Court seeking orders that the Tribunal’s decision be set aside, that the Guardian’s decision refusing to grant a clearance be affirmed or otherwise the clearance should be refused or, in the alternative, that the matter be remitted to the Tribunal to be dealt with in accordance with law. Such an appeal is confined to errors of law. An order was sought (and made) that the name of the defendant, any child and any other person which would identify the name of the defendant referred to in the evidence is not to be published or broadcasted without leave.

3. Since the appeal is confined to errors of law it is not necessary to set out in full detail the evidence before the Tribunal, which was thoroughly (if I may respectfully say so) analysed by it and upon which specific findings were made which are not the subject of present controversy. Accordingly, what follows, largely drawn from the comprehensive judgment of the Tribunal, is somewhat truncated, aimed at informing the discussion of the grounds of appeal. (I have quoted extensively from the judgment, but for ease of reading have usually omitted the conventional editorial markings).

Grounds of appeal

1. The Tribunal erred in law in failing to consider that the safety, welfare and wellbeing of children and, in particular protecting them from child abuse, is the paramount consideration in the operation of the Child Protection (Working with Children) Act 2012 (“the Act”).

2. The Tribunal misdirected itself by asking itself the wrong questions namely:

1. whether it was satisfied that a sexual assault had occurred rather than whether the Defendant posed a risk to children, and;

2. whether it was satisfied that Family and Community Services (“FACS”) had had sufficient evidence to sustain a finding that a sexual assault had occurred.

3. The Tribunal misdirected itself by using what was said in the Second Reading Speech, namely “Unsustainable allegations will not sustain an appealable bar” to guide the Tribunal in deciding what it was required to find, rather than whether or not the Defendant posed a risk to children pursuant to the Act.

4. The Tribunal erred in law in failing to consider whether, although it was not satisfied that a sexual assault had occurred, the Defendant nevertheless posed a risk to children.

5. The Tribunal erred in law in failing to apply the appropriate standard of proof to the matter before it.

6. The Tribunal misdirected itself in law in failing to take into account the standards of proof applicable to criminal prosecutions and disciplinary matters before the Medical Tribunal when considering evidence relating to such prosecutions and disciplinary proceedings.

7. [Not pressed].

8. The Tribunal erred in law in making the following findings of fact when there was no evidence to support the findings:

1. There is no material before me to explain the basis for this conclusion [by FACS that the allegation of sexual abuse was substantiated], (at [46] and [188])

2. Child 1 withdrew the allegation of sexual assault (at [187], [188]).

3. The “retraction statement” was not provided to the hospital (at [47]).

4. “Any recommendation in relation to the defendant's right to practise remaining subject to conditions is, I am satisfied, motivated to ensure his further development as a mature clinician rather through a concern that he may be a risk to children.” (at [241])

5. “In considering other behaviours, including the defendant's habit of greeting the children he mentored with a hug and a kiss, Dr Lachter reiterated his earlier opinion that the defendant was motivated by a rescue mentality and a desire to assist by ‘going the extra mile’ rather than being sexually motivated.” (at [234])

Legislation

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

…

18 Determination of applications for clearances

…

(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

…

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(j) any information given by the applicant in, or in relation to, the application,

(k) any other matters that the Children’s Guardian considers necessary.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the “affected person”) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Issues arising from the mentoring program

4. Between 1989 and 2005 the defendant was a member of an organisation that sought to provide mentoring assistance for disadvantaged children. The goal of the program was to create an extended family network and make the mentoring relationship as much like a real family situation as possible. The defendant and his parents saw children regularly, including taking them for weekends and out on excursions. (In 2005 he was a finalist for the Local Council’s Community Awards for his work with the program). Child 1 was one of the children mentored by the defendant and his parents. The defendant first encountered him as a patient in the hospital where he was working as a doctor. He came from a very troubled background. Child 1 told him that he was on the waiting list of the mentoring program. The defendant was advised that Child 1 was proving difficult to place with a mentor because of his background and behavioural issues. The defendant agreed to mentor the child, an arrangement that commenced in 2004.

5. In early 2005 a worker from FACS visited Child 1 and his mother. The child told the officer he slept in the same bedroom as the defendant, the defendant gave him tablets, one morning he woke up to find his pyjamas pants around his ankles, the defendant let him drive his car, he found sex magazines in the defendant’s bedroom, the defendant examined his penis and checked for ‘boils on his bum’ and the defendant would make him get undressed in front of him. The Child’s mother told the worker that the defendant had examined her son because he had a penis infection and the mother had been happy for this examination to occur, given that the defendant was a doctor.

6. A risk of harm analysis prepared by FACS on 25 June 2005 stated that the defendant had confirmed during an interview that the program’s organisers had raised issues with him about the sleeping arrangements with Child 1 and other children but that he had continued to do this despite their recommendations. In the secondary assessment stage 2 consultation concerning the incidents, the following comments were made: “insufficient grounds evident to determine these incidents were abusive, in comparison to completed on medical grounds; police to suspend their investigation; applicant will not continue to provide care via [the mentoring program]; Dept of Health to follow up work related issues for [the defendant].” A file note of 8 June 2005 referred to a conversation with Child 1’s mother in which she told the FACS officer that her son had disclosed that he woke up one night and the defendant was “sucking his doodle”.

7. Files notes by a Child Protection Caseworker with the Joint Intervention Response Team (JIRT) contain additional statements by Child 1 about games involving a toy BB gun and machete, nightly walks where the defendant would lean the child over a cliff and jerk him back up, nightmares about being killed by the machete and the BB gun, that the defendant had watched him in the shower and made him get undressed in his presence and sleep in the same room as him, and that he had “sucked his weeny”. In relation to this last statement, the file note referred to inconsistent accounts by Child 1 about what he was wearing at the time and added, “in attempting to clarify these inconsistencies Child 1 provided further conflicting information”. The assessment gave additional detail about the dysfunctional household in which Child 1 was living and concluded, “It is acknowledged that Child 1 may have a history of lying yet it is difficult to determine what he may gain from lying in this matter.”

8. In May 2005 Child 1 had made allegations to organisers of the family mentoring program, which were then repeated to police as part of a subsequent JIRT investigation. He made statements about the way the defendant behaved, repeating a number of his earlier accounts but did not speak of sexual assaults or performance of oral sex. He spoke, inter alia, of the defendant pretending to chop his head off with a machete, saying that he thought that the defendant was trying to kill him. Later in the interview he wrote down that the defendant had “sucked his weeny” on one occasion, explaining that he had not disclosed this in the earlier interview because “youse would have, because, I don’t know. I was, I would, I’m just too scared to tell anyone things like that”.

9. As part of the investigation, police interviewed a second child who stated, in part, that he had slept in the same bedroom as the defendant (in a separate bed) because he was the youngest and the other children were sleeping in the spare room, that he would shower and dress alone when at the defendant’s house, the defendant never examined him for medical purposes, that he never saw a BB gun or machete at the house and never saw the defendant play tricks on the other children.

10. In late June 2005 another child who the defendant had been mentoring told police that he had stopped seeing the defendant because –

“A: Things just got a bit weird for me … he always used to hug me and, you know, kisses on my head and say he loves me and like, I’ve just started to know him and he was saying that …

Q: Ok. So how long had you known [him] when he started to hug you and tell you he loved you?

A: I’m not sure. A couple of months. Maybe a year …He used to kiss me on the forehead, goodbye or whatever

Q: Where else did he kiss you?

A: That’s it.”

11. On 19 July 2005 the defendant was interviewed by police, stating that –

“- he had allowed Child 1 to sleep in the spare bed in the defendant’s bedroom because Child 1 had been scared to sleep alone in the guest room;

he had conducted three medical examinations of Child 1’s groin area, twice in relation to an infection, and at the mother’s request, and once following a bike injury sustained by the child;

on two occasion, he had examined boils on the boy’s bottom, once with the mother present and once as a follow up examination;

he had no knowledge of Child 1 waking up with his pyjama pants down around his ankles;

he had allowed children to steer his car;

he did have a BB gun and machete at his home but denied playing around with them or holding the BB gun to Child 1’s head;

he had cried during a telephone conversation with Child 1 when the child said he did not want to continue academic tutoring with the defendant;

he had given vitamin tablets to Child 1 to supplement his diet;

he had kissed his mentees on the cheek, mouth and lips, had told them that he loved him and ‘very occasionally’ asked them to respond by saying they loved him;

he did not sexually assault Child 1;

he did not have pornographic material in his home.”

12. On 17 August 2005 Child 1 was again interviewed by police. He changed his version of events, including the period of time in which the sexual conduct was alleged to have occurred and was unable to explain information given by other witnesses about lies it was claimed Child 1 had told. He then requested that the investigation be stopped. He signed a withdrawal of his complaint of assault and requested that the police not proceed with the investigation into the matter. His mother also signed and dated the form. Notes attached to the form stated –

“After consideration, the victim is not competent to give evidence in court. Legal Advice suggests there is no likelihood of a successful prosecution. Retraction signed on file.”

A subsequent police report into the matter stated –

“When considering the matter police feel the victim is not credible and is unable to explain vital aspects of the investigation. Legal advice has been sought … who is also of the belief that there is no likelihood of any successful prosecution in this matter.”

13. JIRT had referred the matter to the hospital (Hospital 1 in the judgment) where the defendant was working at the time. A review was conducted which was completed on 1 November 2005. The Tribunal noted that, whilst the hospital was given access to the defendant’s record of interview with JIRT and “various witness statements” it appeared that “the retraction statement by Child 1 was not provided”. The Tribunal stated the effect of the conclusion of this assessment as being “that, if a complaint were pursued … [the defendant] could be found guilty of professional misconduct on the basis of a failure to maintain proper boundaries in his professional relationships, particularly with his child patients”. There was no conclusion that he had been guilty of any inappropriate conduct but, rather, his failure to have clear boundaries and was unaware of the perceptions that others might have about his actions. The Tribunal noted that his employment was terminated as posing an unacceptable risk to the welfare and safety of children. The Tribunal noted that Dr Allnutt, who had provided a report, did not refer to Child 1’s “having retracted the allegation” of sexual assault.

14. In 2006 an enquiry was convened before the NSW Medical Board about whether the defendant’s practice of medicine should be suspended or subjected to conditions. Amongst other evidence considered by the Board was the report of Dr Allnutt, who noted that certain (admitted) actions of the defendant could be regarded as grooming, although his motives may have been benign. A more supportive opinion was given by Ms Playn-Williamson, psychologist, who referred in greater detail than Dr Allnutt did to the defendant’s significant relationships with adults. The Board imposed the conditions that the defendant was to work in an approved hospital under supervision and attend treatment by a psychiatrist or psychologist. The Board determined that it would be excessively punitive to impose a condition on the defendant that he practise only with patients over the age of 18 years and commented –

“On his own admission, the defendant has committed a number of boundary breaches and it is the view of the Inquiry that these matters are very serious. the defendant is a doctor of some ten years standing and, as such, should have been aware that aspects of his behaviour were inappropriate, whatever his motivation.

[T]here was significant written evidence…of [the defendant’s] excellent clinical skills, communication skills, teamwork and commitment to teaching.

[The defendant] impressed the inquiry as a man who is genuinely distressed by the allegations that have been made against him and one who is somewhat naïve for his age. Clearly, he has lacked understanding of boundary issues and the potential impact of his behaviour on children under his care. It is the view of the Inquiry that he remains somewhat lacking in insight but that this insight is developing and certainly that he is increasingly aware of the importance of professional boundaries.”

15. In May 2009 the Health Care Complaints Commission brought proceedings in the Medical Tribunal of NSW against the defendant, alleging that he failed to maintain a proper professional distance with several children with whom he had social conduct, (part of the first controversy). It is not necessary for present purposes to set out the details of these allegations but it should be observed that the sexual assault allegation was not considered. The Tribunal noted that the defendant gave evidence before the Medical Tribunal as did a specialist paediatrician, his treating psychologist and the psychiatrists Dr Allnutt and Dr Lachter. The Tribunal noted Dr Allnutt’s views about the defendant –

“Whether or not he should have access to children is a difficult question to answer. Because if it’s purely a boundary violation by altruistic means and not any sexual motive then I think that, you know, there’s less concern. If the view is that it’s a boundary violation driven by including, maybe, altruistic intent but also sexual motive, then I think there is greater cause for concern about having access to children and working with children. Now I can’t answer that question; that’s a factual issue, that’s a matter for the tribunal.”

16. Dr Lachter’s opinion was that the defendant did not suffer from paraphilia and he could work in or with paediatric departments or with children, telling the Medical Tribunal that he did not think that questions of public safety prevented him from returning to paediatric practice. The Medical Tribunal had noted that police in 2004-05 had investigated a complaint by Child 1 about genital examinations, concluding that (on the partial material before the Tribunal) the police uncovered no criminal offence and he was not charged. The Tribunal quoted the following from the judgment of the Medical Tribunal –

“We should say that it was never suggested in these proceedings by the HCCC that [the defendant] had a sexual interest in [Child 1] or indeed any other patient. Nor was it ever suggested by the HCCC that anything done by him was ever done with a view to sexual grooming. Indeed, the contrary is true.

Further the HCCC made this significant concession when the hearing began. Its counsel… said this

It is not alleged by the Health Care Complaints Commission that any physical examination or treatment provided by the respondent was provided for a purpose other than for a proper medical purpose.”

17. The Medical Tribunal stated its “principal concern” as follows –

“[77] The Tribunal’s principal concern in drafting restrictions on [the defendant’s] right to practice is of course one involving the protection of the public: see s 2A(1) of the Act. Our consideration of conditions has occurred in conjunction with a consideration of, among other things, the fact that he is clearly thought of highly as a clinician, but has been out of the workforce for a number of years, the psychiatric and psychological evidence we have heard and the evidence of [the defendant] himself.

[78] The evidence before the Tribunal does not support any conditions which restrict his right to practice in paediatrics and, as we have observed, no questions for arise for the need for any chaperone or anything of that nature. Indeed, the HCCC put to us that we would be appellably wrong if we imposed any such conditions.

[79] Dr Allnutt and Dr Lachter gave contemporaneous evidence before us, that was at the suggestion of both parties. Both psychiatrists agree that [the defendant] should have treatment for some considerable time. Both agree that supervision and mentoring are also required. Although the HCCC submitted that [the defendant] should take courses in ethics or dealing with difficult patients, we do not think such conditions are necessary. We conclude that [the defendant’s] attention would have focused on boundary matters and the need to say no to patients when appropriate, on many occasions over the last five years. Accordingly, we would regard those as unnecessary courses for him to do. We accept that he has taken steps to acquaint himself with appropriate boundaries, in any event. We are satisfied that he will, however, need to refresh his clinical skills and we conclude that the best way for that to occur is for him to work in a public hospital setting.”

18. The Medical Tribunal was not satisfied that the defendant’s conduct was serious enough to amount to professional misconduct but found it to be unsatisfactory professional conduct, reprimanded him, ordered that he pay the HCCC’s costs and imposed certain practice conditions involving, in substance, supervision and mentoring. (The judgment of the Tribunal mistakenly reversed the conclusion of the Medical Tribunal).

19. From 2012 until December 2014, the defendant worked as a trainee and Career Medical Officer at Hospital 2. It was during this time that the second controversy arose. The circumstances were set out in detail in the report of Dr Lachter, which was extensively cited in the Tribunal’s judgment. This account, largely given to Dr Lachter by the defendant, was evidently accepted by the Tribunal as truthful. The following is a summary drawn from that account. The defendant’s practice was to conduct a brief round of the emergency department in the hospital near the end of the working day to see if there were cases which might require his assessment. On 2 April 2013 at about 4pm he noted a patient aged 10 years old screaming in pain and writhing with apparent abdominal distress. He was with his father and had not yet been seen by Emergency Department staff. The defendant recognised the child from an encounter when the defendant had an association with St John’s Ambulance; this amounted merely to brief facial recognition and they had not spoken to each other. The X-ray department closed at 5pm and the hospital was reluctant to allow unrostered overtime. The protocol for Emergency Department doctors was to see patients in the order of priority, the defendant’s role was that of Surgical Registrar and, given that the patient had abdominal pain, he thought it likely that the case would be referred to him. After a brief initial appraisal of the patient, the defendant formed a provisional diagnosis of constipation and handed the case over to the Emergency Department staff with his clinical notes, suggesting that the child required a PR (per rectum) examination and an abdominal X-ray. About an hour later, the child not having been assessed and remaining in acute pain, the doctor in charge of the Emergency Department requested the defendant to take over the case, which he agreed to do. This was obviously sensible. The defendant ensured that a chaperone was present during the clinical examination, which included the PR, and obtained consent from the child’s father, also informing the child about what was to happen. A PR is a definitive examination to confirm the presence of the faecal loading in the lower rectum which might not be clear from an abdominal X-ray. Furthermore, the appropriate treatment for acute constipation is an enema. Such treatment can itself be challenging for a patient and its effects can be harmful if constipation is absent, so that the rectal finding allowed a clear risk-benefit analysis of the use of an enema. As it turned out, faecal loading was present and the patient was greatly helped by the enema, in what amounted to a rapid cure of his presenting complaint of abdominal pain. Contemporaneous clinical notes made by the defendant confirmed the details in this account. Dr Lachter in dealing with this issue concluded in his report as follows –

“I note that the notice of final decision refusing working with children check clearance, dated 19th December, 2014, and signed by Louise Coe, refers to the rectal examination as having been ".. .deemed to be inappropriate." However, from my reading of the reference from [the director] dated 14 October, 2014, where the notion of an "inappropriate" examination is raised, this notion is tempered by the added specific context: ".. .1 [The director] only felt it was inappropriate as he had previously had allegations made about his behaviour with a young male patient and I felt he should have avoided this situation if at all possible."

[The director] notes also: "I felt it [the rectal examination] suggested a lack of insight." From the above, I disagree with the conclusion that [the defendant's] behaviour suggested a "'lack of insight" when the full clinical picture is considered. In my opinion, [the defendant's] handling of the case demonstrates thoughtful consideration and insight, weighing up multiple factors including the patient's well-being, the workplace context of a busy ED. and also his own vulnerable position in terms of boundary issues. He had tried to hand the case over to ED but was called back to attend to the patient further, and in that context he arranged a chaperone for the clinical examination, including the rectal examination.”

20. Following its discussion of the findings of previous assessments, the Tribunal moved to the risk assessment report which founded the refusal of clearance. Additional material included statements from the defendant’s parents which dealt, amongst other things, with the sleeping arrangements for the children and their close involvement in the mentoring which, they said was not simply undertaken by the defendant but by the family as a whole. The Tribunal noted the conclusion of the report that “given the high level of concern arising from the JIRT investigation and the opinion of Dr Allnutt, it is considered that [the defendant] poses a risk to children. For this reason, a Decision bar is recommended.”

The Tribunal’s findings

21. The Tribunal summarised in detail the evidence before it, both from witnesses and documents. It is unnecessary to repeat that narrative here: the published judgment of the Tribunal is available for reference. It is not submitted by the Guardian that, with exception of the “no evidence” matters, any of the Tribunal’s conclusions of fact were unavailable. Even so, it is useful to briefly set out those findings. All were arrived at after detailed consideration of the evidence.

22. As to the allegations by Child 1 of sexual assault, having set out in some detail the evidence, the Tribunal briefly summarised a chronology of his accounts and made a number of findings demonstrated by that chronology. Part of the discussion concerned the finding by FACS that the allegation was “substantiated”. The Tribunal said –

“[188] Notes by FACS stated that the allegation was “substantiated.” There is, however, no information before me to explain the basis on which this finding was made. Indeed, the information before me is that an allegation was made; Child 1 changed his version of events; Child 1 signed a statement, signed by his mother withdrawing the allegation; notes by police express the view that Child 1 is neither competent nor credible and the investigation does not proceed. There is nothing in the information before me to substantiate what is otherwise simply an untested and subsequently retracted allegation by a child viewed by the investigating JIRT officers not to be credible.”

23. It is convenient to deal here with the criticisms raised in Grounds of Appeal 2(b) and 8(a). Ms Hartstein’s written submission points to the second assessment of FACS as stating that “although [Child 1] has provided conflicting contextual detail he has clearly stated that [the defendant] has sucked his penis” and to other comments to similar effect appearing elsewhere in the report as supporting the conclusion that the allegation was substantiated. Ms Hartstein also points to the opinion of the police officer of JIRT that the child had been sexually assaulted and that the Ombudsman was satisfied that the findings of the mentoring organisation that the allegations were sustained were reasonable “given the available evidence”. However, this is to misunderstand the meaning of the Tribunal’s language in this respect. For example, to take the first passage quoted above, there was no articulated reasoning which explained why the mere fact that a clear statement of the allegation overcame the problems raised by the conflicting contextual detail. The opinion of the police officer did not clarify this problem, whilst the satisfaction of the Ombudsman as to the findings of the organisation also does not articulate a process of reasoning. Of course, all the relevant material was before the Tribunal, which had the task for itself of evaluating the relevant material, and it is clear the Tribunal took into account the matters which supported the Guardian’s conclusion. In my view, the Tribunal’s brief explanation as to why it did not accept FACS’ conclusion that the allegation was substantiated was essentially parenthetical and made in the course of dealing with the FACS assessment, tendered as part of the material considered by the Guardian. The Tribunal’s characterisation of the FACS conclusion was open. There is no merit in these grounds.

24. The Tribunal’s conclusion about the alleged sexual assault was –

“On the evidence before me, I am satisfied that the behaviour alleged – that [the defendant] sucked “Child 1’s penis – did not occur.”

25. The Tribunal then moved to further matters described as “considered in the risk assessment”, namely –

“ - boys mentored by [the defendant] shared a bedroom with him;

he allowed the boys to drive his car;

[the defendant] took the boys he mentored on late night bush walks;

[the defendant] gave the boys tablets at bedtime;

[the defendant] had cuddled and kissed the boys he mentored, told them he loved them and, on occasions, asked them to say they loved him;

that [the defendant] had examined Child 1’s genitals and buttocks;

[the defendant] had examined a patient in the emergency department out of priority.”

26. The Tribunal pointed out that these incidents were consistent with grooming behaviours, and thus relevant to the consideration of the question whether they showed that the safety, welfare and wellbeing of children were at risk from the defendant being permitted to have contact with them. I do not intend to analyse in detail the evidence which led the Tribunal to the conclusions about each of these matters. It is enough to say that there is no error of law evident in connection with them. So far as the first matter is concerned, this involved Child 1 sleeping in the spare bed in the defendant’s bedroom (against the policy of the family mentoring program) and also that he allowed Child 2 to get into his bed on the anniversary of his father’s death when he was very distressed. He agreed that he should not have allowed this to happen. Although the Tribunal accepted that allowing Child 2 to get into his bed raised questions of motivation, she concluded that “on the evidence before me… [his] motive was not a sexual one and that his intention, although misguided was, as he stated, simply to comfort the boy”. As to the hugging and kissing the Tribunal said –

“[201] [The defendant] admitted to greeting the children he mentored with a hug and a kiss. The evidence before me is that this was in keeping with how [he] greeted members of his family, who were affectionate towards one another. There is no evidence that there was anything sexual about these greetings: the evidence is that that [he] hugged the children hello and goodbye and sometimes gave them a quick kiss on the forehead or mouth, in the same way as he would greet members of his family. On the evidence before me, I am satisfied that [the defendant] had no sexual motive when giving a hug or a kiss to children he mentored as part of the family mentoring program.”

27. In the respect of the statements about love the Tribunal said –

“[202] [The defendant] also agrees that he told the children he mentored that he loved them and that, on occasion, he asked the children to tell him that they loved him. [He] told the Tribunal that in his family, they say they love each other and that he had simply extended this to the children he had mentored. Whilst I understand how this could have been disconcerting to children who did not come from such an openly demonstrative or expressive family, I am satisfied that [the defendant] did not have a sexual motive in telling the children he loved him and asking them to respond in a similar fashion. I am also satisfied that [he] now realises how such an expression of affection may have made the children feel uncomfortable.

28. As to allowing the children to steer his car whilst on private property, the Tribunal agreed that this was not safe but “there is no evidence before me to indicate that the defendant had a sexual motive in allowing the children to do so nor that it constituted grooming behaviour.” The Tribunal noted the defendant’s evidence that, whilst staying at the holiday house in a bushland setting, he took the boys on late night bushwalks to view nocturnal animals Accepting the defendant’s evidence, the Tribunal was “satisfied that he did not have a sexual motive in taking the boys for such walks … [being] satisfied, rather, that it was simply done to show the boys the bush at night and the nocturnal animals that inhabited it”. So far as the tablets given by the defendant to some of the boys, which might have occurred at bedtime, this should not have happened without first informing the boys’ parents but, though an error of judgment, the Tribunal held that “on the evidence before me … I am satisfied that the defendant did not have any sexual motive for providing the children with tablets either during the day or at night time”.

29. The Tribunal noted that the defendant agreed that he examined Child 1’s penis on three occasions and on two further occasions, he examined his buttocks for boils. The Tribunal said, as to this matter –

“[208] On the evidence before me, I accept that [the defendant] examined the child’s penis on the first occasion at the behest of the mother, who thought Child 1 had a hernia in his groin area. On examination of the boy, [the defendant] diagnosed, instead, an infected lymph node. I accept that the mother subsequently contacted [the defendant] to advise that Child 1 had an infected penis. On the advice of the defendant, she then took Child 1 to hospital. I accept that [the defendant] later checked Child 1’s penis at the child’s house and at the request of the child’s mother. Because Child 1’s genital area was swollen, [the defendant] then acquired what he considered to be more appropriate antibiotics. I accept that [the defendant] again examined Child 1’s genitals after Child 1 injured himself when he fell off his bike and hit himself in the groin. I also accept that he twice examined Child 1’s buttocks when he had boils: once in the presence of the mother and once when he was alone with Child 1.”

30. The Tribunal went on to agree with the findings of the Medical Board (which had previously considered this matter) that, by examining the child in these circumstances, the defendant committed a number of serious boundary breaches. The Tribunal noted the concession by the counsel for the HCCC in the proceedings before the Board that it was not alleged that any examination or treatment was provided other than for a proper medical purpose. The Tribunal concluded –

“On the evidence before me, I agree with the findings of the Medical Tribunal that whilst [the defendant] had committed boundary breaches in his examination of Child 1, there was never a sexual motive to the examination nor were they conducted with a view to sexual grooming.”

(I interpolate that, despite some criticism made by Ms Hartstein of the relevance of the Tribunal’s reference to the HCCC’s concession to the Board, this was not relied on but simply noted in the course of describing those proceedings).

31. The further matter that was relied on by the Guardian as demonstrating the correctness of the refusal to grant the certificate concerned events that occurred on 2 April 2013 when the defendant was working as a surgical registrar at Hospital 2 when he went to the Emergency Department to check for potential surgical patients (the second controversy).

32. The Tribunal noted, as indication of the defendant’s development and insight and recognition of appropriate clinical boundaries, a later clinical situation described by Dr Lachter arising in his work at the hospital when the defendant refused, despite the surgeon on-call’s demand, to attend to the 16 year old son of a hospital nurse who presented with testicular pain. He did so because the adolescent was himself reluctant to be examined and, since a subsequent examination by the surgeon would in any event be required, it was prudent to refuse, bearing in mind his own boundary problems in the past. Dr Lachter drew a positive conclusion from this event and the defendant’s explanation of his actions which showed he had obtained a practical capacity to set boundaries forcefully. Following further discussion of the issue of boundaries, Dr Lachter concluded –

“I do not believe that [the defendant] poses risk or danger to children if he is permitted to work with children in his role as a hospital medical practitioner. I add that - as [the defendant] has given up his earlier ambitions in paediatrics - his exposure to have children under his care is considerably lessened in his present role. I suggest that it would be prudent to have his continued clinical role supervised as it has been at [Hospital 2] in order to monitor and maintain his progress as a mature clinician.”

33. The Tribunal also noted Dr Lachter’s view about the nature and characteristics of paedophilia and the lack of these factors in the defendant’s history. Dr Lachter believed that this history was evidence that the defendant’s underlying motivation was never sexual and that he had achieved a further clinical level of ability in which he had appreciated the necessary boundaries. He was questioned about the earlier conduct in which the defendant had allowed boys to sleep in his room but opined that, whilst this might be seen as grooming, its isolated occurrence suggested it was not. Although the medical examinations by the defendant of Child 1 constituted a lack of boundaries, they did not strike Dr Lachter as “a particularly sexually motivated series of incidents”. The Tribunal quoted his conclusion –

“It does strike me that this fellow was hell-bent to go the extra mile, and that he was someone incapable of saying no, possibly at the time against his better judgement. He is now learning to deal with boundaries. It doesn’t strike me as particularly sexual: I’ve treated boils and buttocks – it doesn’t conjure up a sexual experience. I’d be saying that [the defendant] is immature. It is not sexual or grooming.”

34. Dr Lachter considered also that the 2005 complaints made against the defendant by the HCCC were qualitatively different from his examination of the child in the emergency department. Under cross-examination, as the Tribunal noted, Dr Lachter agreed that, given the lengthy process the defendant had undertaken to achieve mature boundaries, he would have some concern about him working otherwise than as a medical practitioner but confirmed his opinion that he was not motivated by paedophilic desires and he did not believe that the defendant posed a risk to children. The defendant’s medical supervisor at the time of the emergency department examination provided a reference which referred to the defendant’s failure to understand the barriers that must exist between doctors and the public and noted “a certain lack of guile and worldliness in [the defendant] but stated that ‘this is not a bad thing.’” Overall, his reference was highly supportive; it was not confined to bland generalisations but dealt with his situation in some detail. He accepted, as the Tribunal noted, the defendant’s explanation as to why he had examined the child and expressed the opinion that the PR and ordering of an X-ray were appropriate. He did not believe that the defendant is a risk to children or the public. The former Director of Medical Services in Hospital 2 considered the findings in the Medical Tribunal, briefly discussed the evidence before the Tribunal and expressed the belief that the statements from the expert witness indicated the absence of any significant risk to children, although the defendant had breached proper professional boundaries. He said that the hospital had formed the view that the defendant’s employment did not present a risk to the safety or wellbeing of child or adult patients and, furthermore, the defendant had considerable insight into the concerns raised in the Medical Tribunal and would not breach professional boundaries again. In an update on the defendant’s progress made to NSW Health some 15 months later, the Director noted a marked improvement in the defendant’s work; noting the Emergency Department attendance, stating that he did not consider the defendant’s examination of the boy to be grooming behaviour. He confirmed the defendant’s view as expressed to Dr Lachter that he had acted in accordance with good practice when checking for possible surgical patients in the Emergency Department and otherwise considered that the defendant had acted appropriately. He agreed, however, that “a wiser person would not have [seen the patient out of order] to avoid the raising of concerns.” He did not believe that the defendant presented a risk to children.

35. As indicated, the above are selections from or summaries of material presented to the Tribunal, the judgment of which was detailed, comprehensive and fair in stating the issues on both sides as they had arisen and been variously dealt with. The Tribunal then dealt with the balance of the matters to which counsel for the Guardian pointed as justifying refusal of the clearance –

“[213] I am not satisfied that [the defendant] ‘watched’ Child 1 in the bathroom. I accept that as the water was hot, the defendant would turn the taps on for the child, to minimise any burn injury, before leaving him to shower. I am not satisfied that [the defendant] behaved in a way to jeopardise Child 1’s safety while they walked on the cliffs in the vicinity of the holiday house. I am not satisfied that [the defendant] exhibited any dangerous behaviour towards Child 1 with either a BB gun or a machete. There is no evidence before me to link anything [the defendant] did with the evidence of Child 1 that, on three occasions, he woke with his pyjamas pants down by his ankles. In reaching this view, I have considered file notes in which the mother gives an explanation for this: namely that Child 1 would often sleepwalk.

[214] I am satisfied that any gifts given to the children by [the defendant] at Christmas and for their birthday were simply in his role as a mentor to the family, who he was encouraged to treat as members of his family. I am not satisfied that there was any sexual motive behind the gift giving nor that they were used to groom the children.

[215] It has been submitted by the respondent that when considering these behaviours together, the Tribunal could be satisfied that they constitute grooming behaviour.

[216] According to guidelines produced by the Children’s Guardian, Reporting certain misconduct involving children (April 2014):

‘[B]ehaviour should only be seen as ‘grooming’ where there is evidence of a pattern of conduct that is consistent with grooming the alleged victim for sexual activity and that there is no other reasonable explanation for it’ (emphasis added).”

36. The Tribunal concluded that, although some of the defendant’s conduct in relation to these matters involved a blurring of professional boundaries, none of them were sexually motivated, stating that she was fortified in this opinion by the findings of the Medical Tribunal and by Dr Lachter and explaining why she gave less weight to the views of Dr Allnutt.

37. So far as the future is concerned, after discussing briefly again the circumstances of the impugned conduct and, the evidence of the defendant and Dr Lachter together with the other material including the opinion of Dr Allnutt, the Tribunal concluded “there is little likelihood of the defendant engaging in inappropriate behaviour with children or in breaching professional boundaries.” The Tribunal rejected the submission of the Guardian that, considered as a whole, the defendant’s conduct amounted to a real and appreciable risk to children, repeating her conclusion that on no occasion did the defendant act with a sexual motive or with an intention to groom the children but, rather, he acted at all times to assist the children and in the interests of their welfare. The Tribunal noted, that in the intervening 10 years since the initial complaints were made, the defendant had gained an insight and awareness into his behaviour and had learnt to strictly comply with professional boundaries noting that, like Dr Lachter, she did not think that the examination in the emergency department was a breach of professional boundaries, as distinct from an error of judgment caused by his desire to assist the child and his colleagues in the emergency department of the hospital. The Tribunal concluded as follows –

“[243] In this case, a working with children check clearance must be granted unless the Tribunal is satisfied that the person poses a risk to the safety of children.

[244] In all the circumstances, and taking into account the matters set out in s30(1) and s15(4) of the Act, the Tribunal considers that the preferable decision is that the defendant does not pose a risk to the safety of children and should therefore receive a working with children check clearance.”

Application of the Act

38. The object of the Act is to protect children by not permitting certain persons to engage in child-related work and requiring persons engaged in child-related work to have a “working with children check clearance”: ss 3, 8(1). Applications for a clearance must be made to the Guardian: s 13. The Guardian must conduct a risk assessment of an applicant for a clearance to determine whether the applicant poses a risk to the safety of children if the applicant “is subject to an assessment requirement”: s 15(1). By s 14 an assessment requirement occurs where the matters specified in Sch 1 to the Act apply to the applicant. Here, the requirement arose because of the finding by FACS that the defendant had engaged in sexual misconduct namely, had fellated Child 1: Sch 1(a). As mentioned, the Guardian refused the defendant’s application for the clearance. In reviewing such a decision, the Tribunal must consider the factors stipulated in s 31.

39. The Tribunal noted that its jurisdiction under s 27 is protective and not punitive, citing AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v New South Wales Commission for Children and Young People [2002] NSWIRComm 101 at [130]. The Tribunal also noted that, in considering whether an applicant is a risk to children, the test to be applied is whether the risk is “real and appreciable”, citing, inter alia, Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was), dealing with the word “risk” as it was used in the former Child Protection (Prohibited Employment) Act 1998 (NSW) –

“[41] It follows that when approaching the construction of s 9 one must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence.

[42] It almost follows, from what I have just said, that one does not define risk as meaning minimal risk. One would in any case … exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". The approach of the plaintiff is to say that children must be read as children generally, and if there is a risk to a section of children which is constituted by a large number of children, then there is a risk to children generally. So that, if in the present case it be said that Mr V is a risk to female teenage children, then he is a risk to children generally.”

40. Section 9(2) of the Act considered in V provided that the Tribunal: “is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children”. As will have been seen, s 18(2) of the Act requires the Guardian to grant a clearance unless the “Guardian is satisfied that the person poses a risk to the safety of children”. However, in the circumstances here, this is not a material distinction and, as the Tribunal noted, the test in V had been held to be applicable in the Tribunal. The Tribunal quoted from the second reading speech (which I discuss later) and noted the relevant applicable standard is the civil onus, namely the balance of probabilities as modified by s 142 of the Evidence Act 1995 (NSW). The Tribunal observed that neither party bears an onus of proof in relation to an application under s 27 of the Act, citing Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]-[40]. The Tribunal said that it was necessary to consider all of the evidence whether adduced by the applicant or the respondent in light of the statutory considerations. The Tribunal referred to s 38 of the Civil and Administrative Tribunal Act 2013 (NSW), which requires the Tribunal to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms. Section 63 of the Administrative Decisions Review Act 1997 (NSW) permits the Tribunal, as the decision maker, to have regard to “any” material, subject to the rules of natural justice.

41. It was not submitted by either party that the Tribunal erred in its statement of legal principle (subject to the significance of the second reading speech). However, Ms Hartstein submitted that it was important to apply the analysis of risk articulated by Beech-Jones J in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 concerning the significance of a finding that the relevant Tribunal was not satisfied that a person had committed sexual misconduct towards a child but it was also not satisfied that no sexual misconduct had occurred. The relevant passages are as follows –

“[31] Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

[32] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

‘It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.’

[33] The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

[34] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

42. (It should be noted that in a case such as the present there is no onus upon the defendant: that arose in BKE because he had been convicted of a criminal offence). Ms Hartstein relied in particular on the concluding sentence in paragraph [33]. She submitted that, despite the positive findings of the Tribunal in relation to all the impugned conduct relied on by the Guardian to support the conclusion that the certificate should be refused, the circumstances surrounding the particular incidents demonstrate there is nevertheless an appreciable risk to children posed by the applicant or, at least, that it was incumbent upon the Tribunal to consider whether this was the case and, in failing to do so, it erred in law because it did not have regard to the requirement specified in s 4 as to the paramount consideration in the operation of the Act.

Discussion

43. It is convenient first to deal with the “no evidence” ground (No 8). I have already dealt with Ground 8(a). As to Ground 8(b), Ms Hartstein submitted that the Tribunal had significantly misdescribed the withdrawal in Child 1’s signed statement of 17 August 2005. The statement said –

“[3] I withdraw my complaint of assault made to B Carroll, an officer attached to the Joint Investigation Response Team … made on 10/6/05. I do not want police to proceed with an investigation into the abovementioned matter.

[4] I am satisfied with the action taken to date by Officers attached to the Joint Investigation Response Team B Carroll.”

44. The Tribunal described this as a “retraction statement”, as a “statement … withdrawing the allegation” on a number of occasions, and the phrase “withdrawal of his complaint” was also used. It is submitted that the use of these terms as interchangeable overlooks the fact that withdrawing a complaint does not or may not amount to withdrawing the allegation, in effect, that the mere fact that the child withdrew his complaint did not imply an acceptance that it was untrue. Ms Hartstein cited, in aid of the significance of this difference, the statement in the police report –

“The child asked that his investigation be stopped so that he could attend counselling as he had requested in the past. After much discussion the chid signed a retraction statement in order to cease any further investigation at this time. He wants to go to counselling before he makes any further decisions about the matter”.

The reason stated for withdrawal was not that it was untrue but “in order to cease any further investigation at this time”, thus implying that it might be revived. However, the question of the truth of the complaint was, of course, highly significant. If the child, during “much discussion” had maintained that the complaint was true but he simply did not wish to press the matter at that time, it would be most unlikely that this was not made clear by the officer’s note. The complaint was, it appears, never revived. At all events, the correct inference to be drawn from this material is necessarily a question of fact and casting the criticism as a “no evidence” point is merely to seek a reconsideration of the evidence by other means. There is no basis for thinking that the Tribunal, made more of this retraction than the fact deserved, nor do I think the use of different descriptions implies confusion or mistake. The Tribunal did not assert or, for that matter, assume that the withdrawal amounted to an admission that the event had not occurred. However, the fact of the withdrawal was plainly significant: how significant was a matter for the Tribunal to assess. I can see no error in the way in which this matter was used by the Tribunal. Again, this is a question of fact.

45. Ground 8(c) attacks the Tribunal’s view that the “retraction statement” was not provided to the hospital, asserting that there was no evidence that this was so. The fact that no such statement was referred to in the risk assessment of the defendant by Hospital 1 in November 2005 which refers to the allegations of sexual assault but not to the retraction is a sufficient basis for the Tribunal’s observation that, “it would appear that the retraction statement … was not provided to the hospital” [emphasis added]. This ground is without merit.

46. Ground 8(d) deals with the characterisation by the Tribunal of the recommendation by the Medical Tribunal concerning the defendant’s right to practice subject to conditions, the Tribunal being satisfied that this recommendation was “motivated to ensure his further development as a mature clinician rather than through a concern that he may be a risk to children”. It seems to me that the passages set out above, taken from the Medical Tribunal’s determination, justify the characterisation of its real concern and provides evidence to support the Tribunal’s view. The submission, which is no doubt correct, that the power of the Medical Tribunal to impose conditions is limited to those required for the protection of the public does not render wrong what the Tribunal said. Ms Hartstein also points to the monitoring interview conducted by the Medical Council on 26 November 2013 to discuss the defendant’s compliance with the conditions. In its conclusion, the Council stated that the defendant was left in no doubt about how gravely breaches of compliance were viewed by the Medical Council and that his decision to initiate assessment and treatment in the emergency department without prior consultation with the emergency department staff was a grave misjudgement. In the context, I do not think this suggests that there was risk to children as distinct from a question of boundaries between his position and that of the emergency department staff. Furthermore, as the Tribunal found, it was not quite correct to say that his physical examination, as distinct from his initial contact, occurred without prior consultation. This ground of appeal should be rejected.

47. It is alleged in Ground 8(e) that there was no evidence for the statement by the Tribunal that Dr Lachter had repeated in his evidence the opinion he had earlier expressed in his report as to the greeting of the children with a hug and a kiss being “motivated by a rescue mentality and a desire to assist by ‘going the extra mile’ rather than being sexually motivated”. It is submitted that Dr Lachter had not repeated this earlier opinion. The judgment of the Tribunal sets out a passage from the Dr Lachter’s evidence referring to “the extra mile”, going on to deal with the allegation concerning the defendant’s examination of Child 1’s boils. It is sufficient to say there was a basis for the summary to which objection is taken as reflecting the Tribunal’s general understanding of Dr Lachter’s point of view. Ms Hartstein points to the evidence of Dr Lachter to the effect that the defendant’s kissing and hugging and saying he loved the boys and asking them to respond caused him concern and could give rise to the thought that this was a manifestation of paedophilia. However, it is clear that it was the doctor’s firm conclusion that, though such a suspicion might arise, his opinion (strongly expressed both in his report and in his evidence) was that the defendant was not motivated by paedophilic desires, is not a risk to children and these behaviours were not a manifestation of paedophilia, opinions which are consistent with the impugned passage. Indeed, Ms Hartstein did not suggest to him that his conclusion should be qualified. The suggestion that the Tribunal’s statement about reiteration was mistaken should be rejected but, at all events, if it was a mistake, it is a matter of fact.

48. Although this is taking the appeal grounds out of order, I propose now to move to Ground 2. Ground 2(a) asserts that the Tribunal misdirected itself by considering whether a sexual assault had occurred, rather than whether the defendant posed a risk to children. It is obvious that the second question necessarily involves the first although it may be that a negative answer to the first does not necessarily imply a negative answer to the second. It cannot be maintained that, where an allegation of sexual assault is a significant basis for refusal of a clearance certificate, the circumstances of the assault and a consideration of whether it occurred is irrelevant. If the ground is an allegation that the Tribunal did not consider whether the defendant posed a risk to children, as will appear, this is wrong: the Tribunal certainly did so. There is therefore nothing in this ground of appeal. As to the view of the Tribunal about substantiation of the allegation of sexual assault, I have already sufficiently dealt with this matter. I do not consider that the Tribunal’s consideration of it was, as such, a factor in any of its findings. Rather, it was a matter of history upon which, to some degree, the Guardian relied. In that sense, it was desirable, if not strictly necessary for the Tribunal to state why little or no weight should be ascribed to the conclusion of FACS.

49. Ground 3 complains of the Tribunal’s reference to the second reading speech. This reference took its place as part of the discussion of the legislation and applicable legal principles and, in my view, merely as a part of the history of the legislation. In written submissions Ms Hartstein pointed out that the Tribunal referred to the second reading speech twice, on the second occasion when dealing with the consideration specified in s 30(1)(a) of the Act –

“(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar”.

50. The passages quoted by the Tribunal from the second reading speech were –

“All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant.

While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk.

The Minister noted that:

Any assessment trigger, whether a criminal matter or a disciplinary matter, must be able to sustain an appealable bar against working with children. There are two conditions that need to be met to achieve this. First, the investigation of the conduct must be sound and must have taken into account the principles of natural justice; and, second, the conduct must be of a serious nature and must have actually occurred. Unsustainable allegations will not sustain an appealable bar. Only employers whose investigation practice meets the first condition will be reporting bodies that report disciplinary matters. They will be obliged to do so by law….Only sexual assaults, sexual misconduct and serious physical assaults have been identified to date as meeting the second part of this requirement. The range of matters to be reported may be extended by regulation.”

51. The Tribunal noted that the Guardian had identified the sexual misconduct which was the subject of the finding for the purposes of Sch 1(2) to the Act as the fellatio performed on Child 1 by the defendant. The reference to para (2) of Sch 1 concerns a finding that the person has engaged in (relevantly) “sexual misconduct committed against … a child, including grooming of a child”. In this context the Tribunal stated –

“[181] According to the second reading speech for the bill that became the Child Protection (Working with Children) Act 2012, any assessment trigger must be able to sustain an appealable bar against work with children. This requires two conditions to be met:

firstly, that the investigation of the conduct must be sound and have taken into account the principles of natural justice; and

secondly, that the conduct must be of a serious nature and must have actually occurred – unsustainable allegations will not sustain an appealable bar.”

That the assessment trigger must be able to sustain an appealable bar against work with children is no more than to state the procedure in the Act for appeals of the present kind. In order to sustain such a bar it cannot be suggested otherwise than that the investigation of the conduct must be sound. (The principles of natural justice are not presently relevant). That the conduct must be of a serious nature is also clear enough, seriousness being a term of wide import and plainly to be interpreted in light of the risks from which the Act is designed to protect children that is, (as applied by the Tribunal from V) whether the person poses a “real and appreciable risk” to children. Although the Tribunal used the term “conduct”, it is clear that this was intended as a reference to the person’s “behaviour”, identified as risky in the relevant sense, as described in the passage from the second reading speech quoted by the Tribunal at the outset. As to whether the impugned conduct occurred, this is to be understood by reference to the concluding phrase of the quotation. It seems to me that it says no more than that an unsustainable allegation is an unsustainable allegation and adds little to the meaning of the requirement. If the alleged misconduct or grooming (the “behaviour”) has actually not occurred it is clear that an allegation that it has is not sustainable. The use of the word “sustainable” is somewhat ambiguous: there is nothing to support the allegation of risky conduct or behaviour or it might mean that, whilst it has not been proved that the conduct occurred, neither has it been proved that it did not. In my view, the Tribunal was merely pointing out that, if risky behaviour had not occurred, it must follow that the allegation is unsustainable. The context of the citation was a discussion about the alleged misconduct which was said to justify the refusal to grant the clearance: fellatio and (possibly) grooming. If, here, neither the fellatio nor grooming in fact occurred, then the allegations were, in ordinary parlance, unsustainable. I understand Ms Hartstein to have submitted in effect that, if conduct is capable of being regarded as grooming, then it (and the person involved) constitutes a risk to children even if it is in fact innocent of any sexual or untoward motive, purpose or intention. I do not accept this submission: it is plainly inconsistent with the analysis in V. It is, of course, true that child abusers use ambiguous behaviour towards children, capable of being understood as merely kindness or ordinary affection, in order to develop trust or dependency so that they can be manipulated into sexual situations and exploited for sexual gratification. At the same time, kindness and affection can be entirely appropriate and directed to the child’s well-being and have no ulterior, let alone sexual, purpose. Whilst it might not always be possible to judge what motivates particular conduct, sometimes that judgment can be made and, here, it was made by the Tribunal.

52. The requirement of s 18(2) is that a clearance must be granted unless the Guardian is “satisfied that the person poses a risk to the safety of children”. If the Guardian or the Tribunal is not so satisfied, then the clearance must be granted. There is no room for the view that (in a case like the present) the Guardian or the Tribunal must be satisfied that the person poses no risk before a clearance can be granted. Furthermore, the basis for a refusal must be explicable by reference to relevant facts and identified with sufficient particularity, for example, to enable the person in question to respond to a notice under s 19. Given the wide range of possible relevant circumstances, it is not possible to define with any useful precision those cases where a failure to find the existence of facts relied on for a refusal will leave open the potential for a finding that nevertheless the person poses a risk except that, where it is necessary to determine that the person does not pose a risk, a decision that it has not been proved that particular facts did not occur may mean that the required negative has not been proved and the clearance therefore should be refused.

53. As is shown by the above quotations from the reasons of the Tribunal, at a number of points conclusions were initially stated in terms of a lack of satisfaction that particular conduct occurred. But all significant findings were expressed as conclusions that the impugned conduct did not occur, often following reference to further information. Thus, at [188] the Tribunal, having briefly recited the material before the Guardian as to the course of the allegation about the sexual assault, said, “There is nothing before me to substantiate what is otherwise an untested and subsequently retracted allegation by a child viewed by the investigating JIRT officers not to be credible” and, therefore (at [189]) in light of those circumstances, “the allegation … is unsustainable” but goes on to add, “On the evidence before me I am satisfied that the behaviour alleged … did not occur.” The Tribunal then went on to consider each of the incidents found to be consistent with grooming, again concluding “on the evidence before me” that the defendant had no sexual motive in this conduct. It follows also that the Tribunal was alive to the distinction between a failure to be satisfied of the existence of a fact on the one hand and disproof of the fact on the other. (I have not overlooked the use of the “not satisfied” finding concerning the sexual assault in the concluding reasons at [238] but, reading the judgment as a whole, I consider this to be a misphrasing and that the Tribunal had intended to refer to the finding that the assault had not occurred). Thus, Ground 4 misstates the Tribunal’s conclusions.

54. Ground 5 refers to the Tribunal’s recounting of the course of the police investigation. Ms Hartstein submitted that the Tribunal made a finding as to the sexual assault, in part because the legal advice to the police was that there was no likelihood of a successful prosecution. It is submitted that this was to overlook the necessity for proof beyond reasonable doubt were the defendant charged. In fact, the Tribunal made no such error. The account in the latter part of the judgment (under the rubric “Findings and Reasons”) is truncated and comprises a summary of the salient history. The JIRT investigation had been comprehensively described earlier in the context of the Tribunal’s account of the actions and decisions of the various investigating bodies. In particular the Tribunal noted the police report as stating that “when considering the matter police feel the victim is not credible and is unable to explain vital aspects of the investigation”. There is no suggestion that this was other than a straightforward judgment. The legal advice was a further conclusion by others, though it no doubt followed. I do not accept that the Tribunal applied the criminal standard of proof. There is no merit in this ground.

55. Ground 6 alleges, in effect, that the Tribunal neglected to take into account the standards of proof in criminal and disciplinary proceedings when considering the investigations and conclusions of the police and the Medical Tribunal. I have set out above the accounts of the Tribunal about these matters. They were recounted, in substance, as part of the history of relevant events. The Tribunal arrived at its own conclusions based on the evidence before it. To the extent that these differed from earlier assessments, the Tribunal pointed to the differences in available material and, to the extent that the assessments were consistent to a degree with the Tribunal’s findings, this was noted. However, especially in respect of the Medical Council and the Medical Tribunal, positive findings or assessments had been made as to which the different standards of proof for adverse findings did not apply. Utilising these findings or assessments was not a legal error. Indeed, Ms Hartstein has not identified any actual misuse. This ground should be rejected.

56. I now deal with the submission that the Tribunal failed to consider the application of s 4. It should be observed, at the outset, that this provision does not change in this case the requirements of the Act as to whether a clearance should or should not be granted, which depends on whether the Tribunal was satisfied that the defendant “poses a risk to the safety of children”, though possibly “welfare and well-being” adding an additional nuance, an issue not relevant here and not requiring discussion. The reference to paramountcy implies the need to subordinate some other consideration which, in the context, could be, say, the rights of parents. However, arguments as to the significance of this section – aside from the submission that it was disregarded – were not proposed. The section seems to have been called in aid of the submission that, even though the Tribunal held that particular impugned conduct did not occur and other conduct capable of amounting to child abuse, such as grooming, was not in fact grooming as there was an innocent explanation accepted by the Tribunal as the true explanation, there was nevertheless a remaining basis for concluding that the defendant posed the relevant risk as the innocent behaviour was or might be nevertheless risky for children. Ms Hartstein submitted (as I understood it) that impugned behaviours, such as boundary violations or kissing of children, remained risks despite the finding that the defendant had no sexual motivations or purpose in respect of them and that, in failing to consider whether this was so, the Tribunal erred in law. I do not accept this submission. In some cases, of course, grooming might be overtly sexual but, where the conduct is ambiguous, the element that turns the conduct into grooming is the motive with which it is undertaken. If the Tribunal had not positively found that the alleged grooming conduct was in fact not grooming because it had no ulterior or improper purpose, then it would have been necessary to go on to consider whether the defendant posed a “real and appreciable risk” to children. However, the decision as to what was the defendant’s associated purpose or frame of mind or attitude is not informed by any assessment of risk. That assessment can only be made after such a decision. If the finding is that the defendant’s motives were appropriate, then that must be an end of the matter. I do not see a relevant distinction in the circumstances here between the finding that particular conduct did not occur and the findings that conduct that was consistent with grooming was not grooming as it lacked any sexual or ulterior purpose. If, however, the suspicion had not been dispelled, the Tribunal would have had to go on to consider the question whether a “real and substantial risk” remained.

52. The Tribunal noted that it “must consider” the factors set out in s 30(1) in determining the application whilst the Guardian, in determining the risk assessment “may consider” the matters set out in s 15(4) of the Act. Given that the factors specified in both subsections address the same considerations expressed in slightly different language and the Tribunal was conducting an administrative review it appeared appropriate to have regard to both ss 30(1) and 15(4) considerations. There is no submission that this was an inappropriate approach. The Tribunal then considered each of these matters. The first heading was as follows –

“[179] The evidence will be considered under each of the following subheadings. Each of the subheadings combines the considerations under section 15 and section 30 of the Act.

(a) The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar.”

58. It will be seen that this refers to the matters that led to the refusal of the defendant’s clearance. The Tribunal set out each of those specified matters finding, as I have mentioned, as to the fellatio, that it did not occur and in relation to the other matters considered in the risk assessment that, although they were consistent with grooming behaviour the defendant had no sexual motive in relation to any of them. There was ample evidence that justified the conclusions of the Tribunal – and it is plain that the Tribunal accepted the defendant as a truthful and reliable witness – but, even if the Tribunal might have been mistaken, that is a matter of fact and does not arise in the appeal. So far as the examination of the child in the emergency department is concerned, whilst accepting that there were a number of what had been described as “boundary breaches”, no sexual motive was involved and, for the same reason, the acts were not sexual in content or grooming. Again, the detailed consideration given by the Tribunal to this aspect of the matter (distinctly more comprehensive than had been undertaken by the other relevant bodies) entirely justified, to my mind, the Tribunal’s conclusions and again, this is a question of fact.

59. The Tribunal considered all the other matters stipulated in ss 15 and 30. These findings do not call for comment with the exception of para 30(i) concerning the likelihood of repetition of offences or conduct and the impact of on children of any such repetition. The Tribunal repeated the conclusion that the alleged sexual assault did not occur, noted that the defendant’s examinations of Child 1’s genitals and buttocks were a breach of professional boundaries but, in light of the evidence (briefly summarised), the defendant had developed insight into the importance of maintaining such boundaries and the other impugned behaviour involving the mentored children was innocently explained and without sexual or ulterior motives. The Tribunal noted that these complaints were 10 years old without subsequent complaint except for the second controversy, which was not a breach of professional boundaries though it was an error of judgment to see the patient initially without informing emergency department staff and the defendant had since developed a good awareness of professional boundaries. The Tribunal found that, on the evidence, it was not satisfied that the defendant has a paedophilic drive. Although this was suggested (I interpolate, as a possibility) in 2006 by Dr Allnutt in the context of the sexual assault, the opinion could have little weight in light of the limited information available to him and the pivotal importance of the assumption that the assault occurred. The Tribunal preferred the opinion of Dr Lachter, based on more material, that the defendant “does not have paedophilic tendencies”. The Tribunal concluded –

“In light of Dr Lachter’s updated opinion and on the basis of the other evidence before me, I am satisfied that there is little likelihood of [the defendant] engaging in inappropriate behaviour with children or in breaching professional boundaries.”

60. The remarks of the Tribunal as to the balance of the paragraphs do not call for discussion.

61. The Tribunal returned to the statutory test in stating the conclusion that it was not satisfied that the defendant “poses a real and appreciable risk to children” and, accordingly, set aside the decision of the Guardian and ordered that the defendant be granted a working with children check clearance.

Conclusion

62. None of the Grounds of Appeal have been made out. The appeal must be dismissed. The plaintiff is to pay the defendant’s costs.

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Decision last updated: 29 August 2016