DR FRANKENSTEIN, PARENTAL ALIENATION SYNDROME JUNKIE

THIS IS THE MAN WHO IS RESPONSIBLE FOR DESTROYING MANY CHILDREN'S LIVES, BY PROMOTING DR RICHARD GARDNER'S (PAEDOPHILE) JUNK SCIENCE THEORY PARENTAL ALIENATION SYNDROME - PAS


Dr Ludwig F.Lowenstein M.A., Dip. Psych., Ph.D. founded Allington Manor in 1978, following years of experience as a Consultant Psychologist and after serving the Hampshire Education Authority as Chief Educational Psychologist

Dr Lowenstein obtained his M.A. and Doctorate in Psychology and Education at London University, and is one of Britain’s most quoted authorities on psychology in Education. His background includes work on mental hospitals, child guidance clinics and residential centres for maladjusted adolescents in New York City. He served as a teacher, a welfare officer, and, in Australia, as a probation officer. Over the years he has held such appointments as: Director of Assessment and Guidance for maladajusted boys with learning difficulties, London and Winchester; Chief Examiner in Education Psychology, College of Preceptors, London; former educational psychologist in Essex and London; Visiting Lecturer to the Universities of London, Southampton, Maryland (U.S.A.), and Visiting Professor to the University of Khartoum (Sudan), as well as to many U.K. Colleges of Technology and teacher training colleges. His appointments have included a directorship of the International Council of Psychologists and the Chair of the Hampshire Association for Gifted Children. He has also written widely on the subject of educational psychology and forensic psychology, and as it’s first Editor-in-Chief, helped found the journal School Psychology International. Articles on his research into the philosophy, diagnosis and treatment of children with problems are available on request, as are his books.

He was made an honorary member of the Polish Medical Society for acting as consultant to the setting up of a therapeutic community near Warsaw similar to that of Allington Manor, giving lecturers and donating a book dealing with the functioning of the Centre. Louis Pasteur was one of the persons who achieved this honour outside Poland. He is currently an Educational and Psychological Consultant. He was made a fellow of the college of Preceptors and has also published books and over 360 articles on a variety of subjects including those dealing with Forensic matters. He was recently made President Elect (2010) of the Internationl Council of Psychologists.


1.) GENERAL EDUCATION QUALIFICATIONS:-

(A) B.A. Degree. University of Western Australia, (1955-1958.)
Subjects taken:- Psychology, Education, English, German, Philosophy , Sociology.
(B) M.A. Degree. University of London, (1958 - 1960.)
Birkbeck College. Title of Research:- The Psychological Needs of Sub-Normal Children as Assessed by a Thematic Apperception Test. Examiner of Thesis - Prof. C. A. Mace.
(C) Diploma in Clinical and Educational Psychology. Institute of Psychiatry, University of London, (1961 - 1962.)
(D) Ph. D. University of London, (1966.) Main Research:- An Application of Group Operant Conditioning. Thesis Examiner:- Prof. Vernon and Dr. G. Jones.
(E) C. Psychol. AFBPsS. Associate Fellow of the British Psychological Society. Membership Number:- 21085.

2.) PRESENT EXPERIENCE:-


-President Elect 2010 – International Council of Psychologists
-Director, Allington Manor Psychological Services.
-Honorary Member of the Polish Medical Society.
-Member of the Association of Educational Psychologists (A.E.P.), Great Britain.
-Member of the American Psychological Association (APA) Membership no: 3064/8272.
-Visiting Professor to the Jungian Society, Zurich, Switzerland. -Member of the International Foundation of Learning. ( Canada.)
-Member of Editorial Board of the International Journal of Group Tensions. -Member of Editorial Board of Special Services in the Schools Journal. -Member of Editorial Board of Journal of Applied School Psychology. -Consulting Editor:- Suicide and Life Threatening Behaviour Journal.
-Member of the Special Group in Clinical Neuropsychology.
-Member of The British Academy of Forensic Sciences.
-Member of Editorial Board of Quarterly Journal of Mental Health.

-Previous Experience:-

-(1968 - 1974.) Chief Educational Psychologist, Hampshire C.C.
- Head of Psychology and Educational Psychology in charge of 12 qualified psychologists, other staff and trainees.
-Visiting Lecturer to the Department of Sociology for the University of Southampton and Reading College of Technology.
-(1974 - 1976.) Independent Clinical - Educational Consultant Psychologist. -Director of Assessment and Guidance Centre ( London and Winchester.) -Visiting Lecturer:- London University; University of Southampton; Reading College of Technology; Southampton Technical College; and University of Maryland, U.S.A.
-Visiting Professor of Psychology and Education, Faculty of Education, University of Khartoum, Omdurman, Sudan
- Development of Child Guidance and Special Education in the Sudan. -Former Editor-in-Chief,and a founder member of School Psychology International. (1979 - 1985.).
-Former Director of International Council of Psychologists (ICP) (1981 - 3.) -Former Chairman - Hampshire Branch of the Association for Gifted Children, (1981 - 1983.)
- Chairman and Trustee – Children of High Intelligence 2008/09
-Former Honorary Secretary of I.S.P.A. (1983 - 1985.)
-Former Chairman of the Consultative Committee on Solvent Abuse, Hampshire.
-Former Treasurer of the British Rorschach Forum Trust
-(1964 - 1967) Area Clinical Psychologist for Essex, (1964.)
-(1962 - 1964) Educational Psychologist, London County Council.
-(Before 1962.) Market Research, Industrial Psychology. Teacher. Research, Journalism, Army (Paratrooper), Tree - Felling, Lifeguard, Factory Worker, Farmer, Sailor, Swimming Instructor, Security Guard, Painter, Carpenter, Boat Builder, Foundry Worker.

3.) REFEREES AND TESTIMONIALS:-

(A) Prof. Charles Spielberger, Director, Centre for Research on Community Psychology, University of South Florida, Tampa, Florida 33620, U.S.A.
(B) Dr Peter Merenda, University of Rhode Island, Kingston, RI 02881, U.S.A. (C) Dr Frances Culbertson, University of Wisconsin - Whitewater, 800 West Main Street, Whitewater, Wisconsin 53190, U.S.A.
(D) Mr W. Briggs, 2 Lynford Avenue, Winchester, Hants.
(E) Dr G, Watson, 49 Woodfield Drive, Winchester, Hants.
(F) Professor C. Mace, (Deceased) - Testimonial.
(G) Professor Sybil Eysenck, Department of Psychology, Institute of Psychiatry, De Crespigny Park, Denmark Hill, London. SE5 8AH, Great Britain.

4.) MEMBERSHIPS:-

(A) American Psychological Association. – Member & Foreign Affiliate.
(B) National Association of Gifted Children. - Consultant to.
(C) Chairman of CHI (Children of High Intelligence)
(D) International Council of Psychologists. - Director (1983.) Director 2nd term (1999-2000)
(E) Associate Fellow of the British Psychological Society.
(F) Fellow of the College of Preceptors (now the College of Teachers).
(G) UK Register of Expert Witnesses.
(H) The Expert Witness Directory.
(I) Member of the Academy of Expert Witnesses.
(J) Member of Expert Witness.
(K) APIL Expert Witness Database.
(L) AVMA Database.
(M) Chartered Scientist of British Psychological Society


Southern England Psychological Services


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BETWEEN:

LUDWIG FRED LOWENSTEIN

and

KATHLEEN BRENDA LOWENSTEIN Appellants
and

HAMPSHIRE COUNTY COUNCIL

Respondents
Before: Mr Mark Rowland (Chairman)
Mr George Thomas
Mr Robert Bessell

Hearing at Winchester on 24, 25, 26 and 27 March 1997 of an Appeal against a decision of the Children's Service Sub-Committee of the Social Services Committee of Hampshire County Council notified to the Appellants on 15 October 1996 whereby it was resolved that there be cancelled the registration under Part VIII of the Children Act 1989 of Dr Ludwig Fred Lowenstein and Mrs Kathleen Brenda Lowenstein in respect of Allington Manor School, Allington Lane, Fair Oak, Hampshire SO50 7DE.

Representation:

For the Respondents:

Mr Garry Grant of counsel, instructed by Mrs Kate Phillipson, solicitor, of the Chief Executive's Department, Hampshire County Council, The Castle, Winchester, Hampshire S023 8UJ.

The Appellants in person.

DECISION

It is the unanimous decision of the Tribunal that the Appeal be dismissed.

Background

Allington Manor School is a therapeutic community based in a large house in substantial grounds. The Appellants have run the community for many years. Dr Lowenstein is an educational psychologist. Mrs Lowenstein is a qualified teacher. After Part VIII of the Children Act 1989 had come into force, they sought registration of Allington Manor as a children's home. It was not registered as a school because there were fewer than five pupils. After protracted correspondence, the Respondents issued a certificate of registration under the Children Act 1989 and the Children's Homes Regulations 1991. The certificate was dated 17 February 1994 and contained five conditions of registration. The two of relevance to these proceedings were:
"1. The number of children for whom accommodation with both board and care is provided at any one time shall not exceed six.

"2. That the proprietor shall employ staff in sufficient numbers with experience and qualification to meet the purpose and function of the home. A full list of all staff employed giving their function and role, hours employed, relevant experience and qualification shall be provided to the registration authority within three months of registration."

The Respondents have never been entirely happy with the way Allington Manor has been run and there has been much correspondence between them and the Appellants ever since registration. We were not shown all the correspondence because it was not considered to be relevant to the proceedings before us. Some issues have no doubt been resolved to the satisfaction of the Respondents and some may have been abandoned as having been bad points or as not being of sufficient importance. However, there have continued to be some major concerns. Matters came to a head in early 1996 following the Appellants' refusal to accept the resignation of one Roger Small who had been employed as a classroom assistant. That led to a proposal to cancel the registration. Representations were made to a sub-committee of the county council's Social Services Committee who decided to adopt the proposal. The Appellants now appeal against that decision.

The Statement of Reasons served under rule 5(2) of the Registered Homes Tribunal Rules 1984 and dated 20 February 1997 has been drafted by counsel. They are the reasons upon which the Respondents seek to resist the appeal rather than the reasons for the sub-committee's decision. That is acceptable, as we are concerned with the merits of the sub-committee's conclusion rather than the merits of their reasoning. We have been greatly assisted by the clarity of the Statement of Reasons. The five reasons advanced for the cancellation of registration are:
"Reason 1

"The Appellants have failed to ensure that the experience and qualifications of the staff are adequate to ensure the welfare of the children is safeguarded and promoted at all times contrary to regulation 5 of the Children's Homes Regulations 1991.

PARTICULARS
"(a) Failed to employ a suitable head of care with an appropriate social work qualification in accordance with the advice of the Respondent;

"(b) Failed to ensure that all staff were police checked prior to entering any form of employment at the Home contrary to the guidance and regulations to the Children Act 1989 and the recommendations of the Warner Report 'Choosing with Care';

'(c) Employed staff in the home in a voluntary capacity or otherwise without knowing the outcome of police checks;

"(d) Recruited or offered to recruit staff in response to a request for a placement of particular children undermining the ability to properly assess the suitability [of] the appointment;

"(e) Employed unqualified and inexperienced staff including Frank Swanborough who was employed under the inappropriate title of 'handyman/care worker', who had his care worker role identified at the end of his list of duties and who had no previous professional child care experience, had not in June 1996 read any of the children's files and had no understanding of specific plans for individual children nor any awareness of the needs of vulnerable young people;

"(f) The Respondent will also rely on the matters particularised under reason 3;

"(g) The Respondent will also rely on the matters particularised under reason 4:
"Reason 2

"The Appellants have failed to comply with Condition 2 of the Registration Certificate by reason of their failure (i) to employ staff in sufficient numbers with experience and qualifications to meet the purpose and function of the home and (ii) failure to provide a full list of staff employed giving their function and role, hours employed, relevant experience and qualifications to the Respondent within 3 months of registration.

PARTICULARS
"(a) Under failure (i) the Respondent relies on the particulars given under Reason l;

"(b) On 3rd May 1994 the Appellant wrote to the Respondent stating that he could not abide by the conditions within the registration form as to staffing requirements and seeking advice on de-registration;

"(c) No list which complies with the condition was supplied prior to 17th May 1994;

"(d) Staff lists have thereafter been submitted which do not contain the information required of the skills and experience and relevant qualification of the staff numbers, for example in January 1996 the Respondent received a staff list which stated the names of 6 staff members but gave no information about qualifications or experience;

"(e) In April 1996 an additional member of staff (Mr Swanborough) had joined the staff group, but the inspectorate were not informed of this until the next staff list sent in September 1996.

"Reason 3

"The Appellants have failed to safeguard and promote the welfare of the children accommodated in the Home pursuant to section 64(1)(a) of the Children Act 1989 by failing to respond to and understand the requirements for appropriate restraint training.
PARTICULARS
"(a) Despite a need identified in 1993 [and] recommendations from the Respondent in January and July 1995 the Appellants have failed to ensure that all staff receive training in restraint techniques by an accredited and recognised instructor in such techniques;

"(b) The Appellants have inappropriately chosen to rely on the experience of Dr Lowenstein including his experience as a wrestler.

"Reason 4
"The Appellants have failed to safeguard and promote the welfare of children accommodated in the Home pursuant to section 64(1)(a) of the Children Act 1989 by demonstrating a lack of judgement in dismissing the recommendations of a professional referee and in proceeding to and continuing to employ Mr Small.

PARTICULARS
"(a) Mr Small was dismissed from his employment with Hampshire County Council for reasons that were specific to his employment within social care work;

"(b) When Dr Lowenstein took up references from his former employer, Hampshire County Council, the reference from Chris Jackson, the Unit Manager, stated that it could not recommend his employment with young or vulnerable people;

"(c) There was no written evidence of interviews or observations of recruitment process in relation to Mr Small;

"(d) The Appellants elected to employ Mr Small in the home following an interview and having completed a personality questionnaire devised by Dr Lowenstein;

"(e) Mr Small informed the Respondent on or about 23rd January 1996 that he had been working in the home since October 1995 and could work evenings with residents on a voluntary basis;

"(f) In January 1996 the Appellant refused to review his decision to employ Mr Small [and] instead sought a meeting to challenge this requirement;

"(g) In March 1996 in the face of further information concerning mistreatment of young people by Mr Small, previously unknown to the Inspection Unit and the Appellants, the Appellants refused to accept that his recruitment practice had been unsound and continued to maintain that Mr Small had been unfairly treated and should be given a chance of employment with children;

"(h) From 18/3/1996 to at least 24/5/1996 the Appellants continued to employ Mr Small against the advice of the Respondent's officers in circumstances that it remained likely that Mr Small would come into contact with children.

"Reason 5

"The Appellants have failed to safeguard and promote the welfare of children accommodated in the Home pursuant to section 64(1)(a) of the Children Act 1989 by failing to arrange for suitable plans to be drawn up in respect of the children looked after in the home."

PARTICULARS
"(a) The issue of care plans was first raised in 1993. In July 1993 the Appellants plans were criticised as being a list of requirements with uncertainty as to implementation;

"(b) On 19/7/1995 an inspection revealed no record of short, medium or long term care plans and a recommendation for such details to be recorded was made;

"(c) Based on information provided by the Respondent on 19th September 1995 the Appellants should have been able to draw up suitable plans;

"(d) An inspection visit on 10/6/1996 revealed that the children's files did not contain information in a structured and planned way which would enable them to be read as a history of the child's life in care, [and]contained no analysis of the child's progress, work undertaken [and] no identification of achievement and areas for further work. The files contained inadequate records of significant events and contacts with professionals or parents. There was no identification of persons responsible for particular tasks;

"(e) The Respondent will also rely on the matters particularised under Reason 1 at (e)"
It is clear that the matters relied on under Reasons 1, 2, 3 and 5 would not, even taken together, have led the Respondents to propose the cancellation of the registration in the absence of the matters relied on under Reason 4. That is not to say that it was improper to rely upon them in resisting this appeal because, even though we find Reason 4 to be proved, we are not necessarily bound to cancel the registration. Our findings on issues raised under Reasons 1, 2, 3 and 5 are matters we can then take into account, together with our finding under Reason 4, when considering whether registration should be cancelled.

Indeed, there is a common theme running through all the Reasons, which is the reluctance of Dr Lowenstein, and to a lesser extent Mrs Lowenstein, to seek or accept advice about matters relevant to the running of a registered children's home. This has not been helped by there being something of a culture clash between the Appellants, with their backgrounds in the worlds of psychology and education, and the Respondents' inspection team, with their background in the world of social work. The consequent misunderstandings have not all been on one side.

We observe that it is stated in The Children Act 1989: Guidance and Regulations Volume 4 Residential Care at paragraph 1.10 that "it must be recognised that a measure of flexibility will be expected in the application of the Regulations and Guidance to [schools]". We also observe that it is also stated there that some schools "will have to be looked at as rigorously as any private children's home".

It is convenient to look at the various issues raised by the Statement of Reasons in a slightly different sequence from the one in the Statement of Reasons itself. We will nonetheless start with Reason 1(a).

Reason 1(a) - lack of a qualified head of care

The Respondents had a general policy of requiring the head of care in a children's home to have a formal social work qualification (CQSW, DipSW or CSS). It was common ground that Mrs Lowenstein had been head of care and did not possess such a qualification. The Appellants had made some half-hearted attempts to recruit someone with a relevant qualification but their case really was that it was unnecessary to do so because they themselves possessed other professional qualifications and had considerable experience of caring for children. This is one of those areas where "a measure of flexibility" might be regarded as appropriate and, indeed, it seems to us that there has been some flexibility in the Respondents' approach. After all, they were prepared to register the home without a qualified head of care being in post. Mr Thomas, who was one of the Respondents' inspectors until early 1996 was also prepared to accept in evidence that the person with the social work qualification need not necessarily have been the head of care provided he or she had some real experience and was employed in a capacity carrying the authority to influence the practice within the home. He further accepted that there would have been "less urgency" in respect of this issue had the Appellants displayed more knowledge of social work practice and procedure themselves. We wonder whether it would have been desirable to discuss with the Appellants whether some training for Mrs Lowenstein short of a full Dip SW might have been sufficient.

At the heart of Dr Lowenstein's submissions was a clear view on his part that a social work qualification was of no value. He frequently made the point that well-qualified care workers are not necessarily better at their work than qualified carers. That may be true, but it does not follow that all qualified care workers are no good or that a good unqualified care worker cannot become more effective if he or she acquires a qualification. Both Appellants conceded that they did not really know anything about the content of a social work course. It is therefore difficult to see how they could properly dismiss it as being of know use. Materially in this case, a social work qualification would have given the holder some knowledge and understanding of the practice and procedures expected by the Respondents' inspection team, particularly as regards the keeping of records. The absence, within the team working at Allington Manor, of that knowledge and understanding is revealed in the other issues raised in the Statement of Reasons.

Mrs Lowenstein mentioned that, with her husband, she attended international conferences of psychologists. In that area of their work, the Appellants were doubtless both well informed. However, in other areas, Allington Manor appears to have been rather isolated from developments around them.

This isolation was exacerbated by the lack of any written guidance published by the Respondents. We were told that there are only five registered children's homes in Hampshire and that written guidance had not yet been developed. We consider that this is unfortunate and that the Respondents might give some thought to adapting the guidance published by other authorities. Merely referring proprietors to documents published by, or on behalf of, the Department of Health is not enough, because much of the guidance contained in such publications is in very broad terms. There are many issues on which local authorities can provide more specific guidance.

Reason 5 - inadequate care plans

It was not disputed that the care plans had not been in an appropriate form until recently. It was, however, accepted by the Respondents that there had been considerable improvements since Mrs Lowenstein had taken over the writing of the plans from her husband. These had been achieved with much guidance from the inspection team.

Having heard the Appellants, we accept that, in truth, there was rather more in the way of planning for the care of the children during the time when Dr Lowenstein was writing the plans than was appreciated by the inspecting officers. That, however, is not a vindication of the Appellants. A registered children's home must be inspected and the inspectors must be able to see what is going on. If the written records do not disclose what is going on, the inspectors can hardly be blamed if they draw the wrong conclusions from those records. In other words, a registered children's home must not only be run effectively but it must also be seen through its records to be run effectively.

Furthermore, written care plans are an important tool for use in working with children. Staff should be able to refer to them to remind themselves of the context in which they are working. The Appellants may have closely supervised their staff giving them oral instructions in the light of their plans, but that is not enough. A home cannot be run properly on the basis of plans that are in the minds of the proprietors and are not fully recorded elsewhere.

Although we accept that there was more in the way of planning than the inspectors saw, we are not convinced that it was uniformly adequate. We suspect that the planning of the psychological input was quite sophisticated but we are not sure that the planning of other aspects of the development of the children was as structured or as comprehensive as it should have been. However, in the absence of adequate records, it is difficult to judge the quality of the planning in the past with any degree of certainty and, in view of the improvements that have been made, it is unnecessary for us to do so.

Two aspects of the planning process remained the subject of criticism in the February 1997 inspection report. One criticism was that the children were not involved in the development of the care plans. The other was that staff remained unfamiliar with the plans.

The Appellants replied to the first of those criticisms by saying that the children were involved through their daily group confrontation meetings. The Respondents did not consider that to be an adequate answer and criticised the apparent involvement of the children in the development of each other's care plans. It seems to us that the use of the group confrontation meetings may be a valuable tool in-the development of plans but that it hardly amounts to a sufficient involvement of the individual child in the development of a long-term plan. On the other hand, the evidence of the Appellants was that there has in fact been work with individual children and, indeed, it would be surprising if there were none. What seems to be missing is a structured discussion with each child about his or her care plan or, at any rate, any clear record of such discussions. Further, there is a possibility that the life-story history is not being developed, which would be important when the child moves on from Allington Manor.

So far as the knowledge of the staff is concerned, we accept that not all the staff were as familiar with the care plans as they should have been. This seems to us to reflect an attitude that the compilation of proper care plans is a bureaucratic chore of no practical use in the home, whereas the care plans should be used to inform the work of staff.

Reason 3 - restraint techniques

Dr Lowenstein has developed his own techniques of restraint. In his bundle of documents. Dr Lowenstein produced evidence purporting to show the suitability of those techniques. Mr Grant sought leave to introduce evidence to the contrary which was granted. However, on reflection, we decided not to hear evidence on either side as to the suitability of the techniques. That was not really the issue raised in the Statement of Reasons.

Dr Lowenstein's case was that he trained the staff in his technique and that it was not necessary for them to receive training elsewhere. The Respondents' reply was that he was not an accredited and recognised instructor. The real complaint therefore was that he had not sought accreditation and recognition. One of the inspectors conceded that she had no idea how Dr Lowenstein might have sought accreditation or even how he might have discovered that information. However, Mrs Datta, the senior inspector, told us that there are agencies who accredit trainers or consultants.

We consider that the complaint that Dr Lowenstein failed to seek accreditation and recognition is justified.

However, we are not unsympathetic to the Appellants because the matter does not seem to have been put clearly in that way until the hearing before us. They have been told only that they and their staff need training from another agency. This seems to us to be an example of the inspectors not recognising that the experience of the Appellants might have some value despite the fact that it had not been acquired through an accredited agency.

On the other hand, Dr Lowenstein's firm belief that his technique must be acceptable does not appear to us to be justified when he has not submitted it for scrutiny by others. It may be acceptable but he should allow others to judge it.

Dr Lowenstein was also very keen to stress that one should not shy away from the need physically to restrain difficult children and he criticised the inspectors' frequent references to such children being "vulnerable". However, the inspectors did not deny that the use of physical restraint was sometimes inevitable and Dr Lowenstein's writings show a clear understanding of the need to evolve techniques for avoiding the need for physical restraint so far as is practical. It seems to us that the differences between Dr Lowenstein and the inspectors were really matters of emphasis rather than substance and Dr Lowenstein's insistence on highlighting them shows again his general antipathy to social workers as much as anything else.

Reason 1(d) - ad hoc recruitment of staff

This complaint arose primarily out of a letter written to Ms Datta by Somerset County Council on 8 March 1996. The letter was concerned mainly with Dr Lowenstein's method of levying charges but it showed that staff were to be recruited specially in anticipation of the admission of one child. The Appellants did not deny that that was so but argued that it was necessary, and even desirable, that staff should be recruited and trained with the needs of a particular child in mind.

No doubt, the Appellants are right up to a point. However, the Respondents are entitled to be concerned that, if staff are recruited to meet the needs of a particular child, it is likely that the recruitment process will be hurried and therefore less effective in finding the most suitable applicants. Furthermore, there is no evidence that the Appellants had a long-term recruitment policy designed to ensure that they had a core staff of experienced and trained care workers.

We do not really have sufficient evidence to enable us to make a clear judgement about the propriety of the particular arrangements made for recruitment of staff in response to the proposed placement by Somerset County Council. The generally unsatisfactory nature of the Appellants' recruitment process is something we shall look at more closely when we consider Reason 4.

Reason 1(e) - employment of a handyman/care worker

All care workers must start somewhere and so the employment of a person who is "unqualified and inexperienced" is not objectionable, provided he or she is properly supervised and trained by qualified and experienced staff. Nor can there be any objection in principle to employing a person as both a handyman and a care worker.

However, to the extent that such a person is employed as a care worker, he or she ought to receive the training relevant to that side of the work and to be aware of the care plans for children. Dr Lowenstein said that Mr Swanborough was of a taciturn disposition and would have been more aware of the needs of the children than the inspectors understood from talking to him. Even if that is so, his knowledge would seem to have been derived from oral instructions rather than sight of the children's files or written care plans and we doubt that his understanding was very deep.

We also consider that the variation in the description of his job which was sometimes "handyman", sometimes "handyman/care worker" and sometimes "care worker" suggests a lack of precision as to exactly what his role was and a lack of understanding of the need for a proper staff structure and recorded system of supervision and training.

Reason 2 - failure to comply with condition 2 of the certificate of registration

In as much as this overlaps with Reason 1, we need say nothing further here.

The Respondents also rely on the failure to produce a list of staff with their function and role, hours employed, relevant experience and qualification. There was a clear breach of condition 2 when no such list was provided within three months of registration. The list submitted on 11 April 1994 was clearly inadequate. However, by 1996, it seems to us that that breach had become irrelevant.

By regulation 25(4) of, and paragraphs 15 to 18 and 27 of Schedule 5 to, the Children's Homes Regulations 1991, a list of staff and certain particulars about them is required to be sent to a registration authority upon an application being made for registration. By regulation 27, a person carrying on a home is obliged to notify a registration authority of any changes in the information provided under regulation 25(4), such notification being required "[I]n connection with an annual review of registration". By regulation 17(1) of, and paragraph 2 of Schedule 3 to, those Regulations, certain records concerning the staff must be kept in the home. By regulation 4(1) a proprietor must maintain a statement of purpose and function of a home and, by paragraphs 4 and 5 of Schedule 1 to those Regulations, that must contain particulars as to the organisational structure of the home, the experience of the person in charge, the staff and others working there and details of qualifications held by any of those persons relevant to their work in the home, or to the care of children.

Condition 2 of the certificate of registration seems to be designed to deal with those cases where a full complement of staff will be recruited only after registration so that the requirement to provide a list on the application is not a great deal of use. The Respondents seem to have interpreted the condition as giving rise to a continuing obligation to provide lists and notify them of changes of staff. We do not consider that to be so. As a ground for cancellation of registration, it was necessary for the Respondents to rely on a breach of the duty imposed by regulation 27 or, possibly, either a breach of the duty imposed by regulation 17 to keep records in the home or a breach of the duty imposed by regulation 4(1) to include specified particulars in the statement of purpose and function. The evidence in this case was not directed specifically to any breach of regulation 17 or of regulation 4(1), although the inadequacy of the lists provided suggests that there may have been such breaches, particularly as some of the lists appear to have been provided with, or as part of, statements of purpose and function. On the other hand, it would appear that there were breaches of the duty imposed by regulation 27.

We therefore accept the substance of the Respondents' complaint. However, that complaint is not accompanied by any suggestion that the staffing was inadequate, save in the respects identified in Reason 1. Nor did the Respondents urgently seek fuller lists when the inadequate ones were provided. The Appellants accept that the lists were not adequate. The inadequacy of the lists is not, in itself, serious but it points to the lack of a coherent staffing policy and is another example of the Appellants' lack of comprehension of the duties imposed on them by the legislation.

Reasons l(b), l(c) and 4 - the employment of Mr Small

There is some, but not much, dispute concerning the circumstances of the employment of Mr Small. It appears that he was first interviewed by Dr Lowenstein on 5 September 1995. We have no reason to doubt Dr Lowenstein's evidence that he intended to employ Mr Small in the light of the proposed placement of a particular boy who was then the subject of proceedings in a court. At that interview, Mr Small signed a consent to a criminal background check. The details on the form were completed by Mr Small and show the job title as "care worker". The form was not finally signed by Dr Lowenstein until 9 October 1995. He inserted the starting date for the employment as being the same day. It may not be a coincidence that that was the day upon which the court finally made an order permitting the placement of the boy at Allington Manor as a day pupil, although the placement did not take place until the beginning of the next term, in the New Year. Meanwhile, Dr Lowenstein had written to referees. The first was from Mr Chris Jackson, the unit manager of a children's home run by Hampshire County Council where Mr Small had last worked. On 31 October 1995. he wrote:
"Roger Small worked for the Social Services department of Hampshire County Council for 15 years from 29 October 1979 until April 1995 latterly he was employed as a Residential Social Services Officer at [....], a locally based children's home.
"Mr Small was dismissed from this post for reasons that were specific to his employment within Social Care work. Whilst we could not recommend Mr Small's employment with young or vulnerable people we recognise his skills in the following areas:

Roger was normally very good and concise with his record keeping.

He was well organised and his time keeping was excellent.

Roger had very little absence from work and was therefore a reliable member of staff.

Roger had a certain amount of responsibility, being of a more senior level than some. In the absence of more senior staff he was at times responsible for the day to day running of the unit.

Roger showed himself capable of working a rostered shift pattern without problems.

Roger seemed well able to communicate with his colleagues and had a good sense of humour."

On 10 November 1995, Dr Lowenstein again wrote to Mr Jackson, saying:
"I thank you for the information concerning the above mentioned in your letter of the 31st October. It leaves me rather puzzled as you have mentioned a number of very good points regarding Mr Small, but the second paragraph indicates that he was dismissed and that you would not recommend Mr Small's employment with young or vulnerable people. I wonder if you would elaborate on what kind of children you would not recommend him to work with and why. Most of the youngsters at Allington Manor School and Therapeutic Community are adolescents and I wonder whether you would feel the same way about such youngsters in connection with Mr Small i.e. that he should not be employed for that purpose.'

On 11 December 1995, Mr Jackson replied, saying that he felt unable to add anything further to his original reference.

Dr Lowenstein had also obtained a reference from Mr Steve Cockett, a senior practitioner who had been Mr Small's superior until 1992. That reference was initially provided on personal notepaper but, after the inspectors had commented on that fact, it was rewritten on headed Hampshire County Council notepaper and redated 13 February 1996. It is unnecessary to set it out in full here but it was a very favourable reference and made no mention of Mr Small's later dismissal by the county council or of any other disciplinary action being taken against him.

Dr Lowenstein told us that he had interviewed Mr Small several times and that Mr Small had spent some time at Allington Manor on a number of occasions when he had met staff and children and Dr Lowenstein had been able to observe how he interacted with them. He told us that he had also carried out a personality test that he had devised himself and that that had further satisfied him of Mr Small's suitability. He also told us that Mr Small had informed him at the first interview that he had been dismissed by Hampshire County Council and had discussed the incidents leading to the dismissal on that and subsequent occasions. He further said that Mr Small was not employed until the new term started in January 1996 and that he was then employed as a classroom assistant on the basis that he would be under constant supervision.

The Respondents disputed that Mr Small was always supervised and suggested that he had in fact been employed from 9 October 1995 as suggested by the request for the criminal record check, at least on a voluntary basis as had been stated to the inspectors. They also suggested that he had been employed as a care worker rather than as a classroom assistant, pointing out that he had been described as a care worker on more than one document. The Appellants rejected those suggestions. Dr Lowenstein said that the reason the starting date had been written as 9 October 1995 on the request for the criminal record check was that he thought that he would obtain a result more quickly and that Mr Small had not been working in 1995 but had merely been undergoing assessment, although on some occasions he had been there for some hours. He also pointed out that the boy with whom Mr Small was expected to work was only at the school during the day and he said that Mr Small would always be under the supervision of Mrs Williams, the teacher, even if he had to take the boy he was working with into the next room.

We are prepared to accept that Mr Small did not work at Allington Manor during 1995, save to the extent that he was with the staff and children while undergoing assessment. That might well have been described as voluntary work. However, that does not alter the Respondents' main point which is that Mr Small had access to the children for substantial periods of time before the police checks had been carried out. Under Reason l(c), the Respondents further relied on the fact that Mr Swanborough had had contact with children before the results of police checks were known.

Dr Lowenstein made it plain to us that he now accepted that it was wrong for potential employees to have contact with the children before the results of the police checks were known and he told us that, since February 1996, observation has always been carried out after the result of the check has been received.

We accept that, from January 1996, Mr Small was employed to work in the classroom with one particular boy. The description of him as a care worker merely reflects the Appellants' philosophy that everyone in the community was working together to care for the children and their general lack of precision over staffing matters. However, it was accepted by the Appellants and by Mr Small himself that he would also have contact with other children in the classroom and outside and might be called upon to restrain them if the need arose, which it did from time to time as is revealed by the incident book. Furthermore, while most of Mr Small's work could be expected to be carried out within the sight of other members of staff, that would not necessarily be so. It was particularly significant that Mrs Williams, giving evidence to us, said that she was not given any specific instructions that Mr Small was always to be supervised.

The inspectors having objected to Mr Small's employment and Dr Lowenstein not being happy with their objections, a meeting was arranged on 18 March 1996. It was chaired by Mr Alan Backhouse who was then an Assistant Director in the Social Services Department. Dr Lowenstein complained to us that Mr Backhouse was not independent. However, there was no obligation on the inspection team to bring in an independent adjudicator. Mr Backhouse brought a fresh mind to bear on the situation and had the authority to overrule the inspection team if he thought fit. Both Appellants were present at that meeting, as were Mr Small, Ms Datta and a Service Quality Manager.

Mr Small told the meeting that there had been a number of incidents during his employment with Hampshire County Council, which are recorded in the minutes of the meeting as:
"In 1981 he was disciplined for striking a young person.

In 1982 he was also disciplined for striking a young person.

In 1983 there was a third disciplinary which petered out as there was not enough evidence on the 4 counts.

In 1993 he was given a verbal warning when he had twisted a young person's foot when kicked by that young person.

In 1994 three young people (2 boys and a girl) alleged sexual harassment following a number of play fights where Mr Small smacked the young girl's bottom on up to 5 occasions. There was a disciplinary hearing which laid down conditions for Mr Small.

Additionally there had been allegations made when Mr Small entered a girl's bedroom and another when he entered a girl's bathroom.

In 1995 there was a stage 3 disciplinary hearing following an excessive restraint when Mr Small held his hand over a boy's mouth."

The minutes also record that "Dr Lowenstein had not been aware of every incident outlined above although Mr Small had discussed his previous experiences in Hampshire and the disciplinary hearings in some detail and had been open and honest". In his evidence to us, Mr Backhouse confirmed that it was his impression that Dr Lowenstein had not heard all the details of all the incidents before that meeting. We accept that that was so. Both Dr Lowenstein and Mr Small were a little vague in their evidence as to what exactly Mr Small had told Dr Lowenstein and when he had done so.

At the end of the meeting, Mr Backhouse offered the Appellants three choices which were minuted as follows:
"(i) Dr Lowenstein could choose to accept Mr Small's offer of resignation and to meet the recommendations of the inspection unit, in which case registration could be continued.

(ii) Dr Lowenstein could be given the opportunity to put his case to the social services committee in which case they would independently make a judgement and final decision on whether to register Allington Manor.

(iii) Dr Lowenstein could choose to withdraw and notify the local authority that he no longer wishes to be registered, in which case Dr & Mrs Lowenstein could continue to care for young people as a private foster home only. This would mean keeping the number of young people to three or under."

The Appellants were given until 8 April 1996 in which to respond. They initially chose the second option. Mr Small ceased to be employed in the classroom and moved to working in the office. He still inevitably had some contact with children. On 24 May 1996, his resignation was accepted.

The Respondents argue that Dr Lowenstein was reckless in employing Mr Small in the light of Mr Jackson's reference. Dr Lowenstein defended his decision on 15 grounds.
1. The favourable reference from Mr Cockett.

2. The good impression he made on children and staff while under assessment.

3. His 15 years experience dealing with youngsters with, as he viewed it, little support.

4. A psychological test showing tolerance, honesty and psychological stability.

5. The lack of initial further information.

6. The views expressed by staff, especially Mrs Williams, about his suitability.

7. The plan to have him working from 9am to 3pm in a classroom and always under scrutiny (not because Dr Lowenstein regarded it as imperative but to protect Mr Small)

8. The results of the criminal record check

9. His explanation of his dismissal in the absence of reasons from Hampshire County Council.

10. The view of the boy with whom he was to work that he could be helpful.

11. The view of the boy's family (who were made aware of the dismissal) and a belief that the boy would report any untoward behaviour.

12. Dr Lowenstein's own clinical experience of 30 years which led him to find Mr Small to be a reliable, conscientious and non-child-abusing individual.

13. Mr Small would only be working after intensive preparation by Dr Lowenstein and his staff and should be under constant supervision during his training period.

14. The small size of the centre and the constant scrutiny of staff.

15. The particular psychological needs of the boy concerned. which matched Mr Small's capacity for tolerance and understanding, his care skills and his other personal attributes.

Essentially, Dr Lowenstein made his own judgement on the material before him and found in Mr Small's favour. The Respondents submit that it was not a finding he could properly make.

Mr Small gave evidence to us, explaining what he had told Dr Lowenstein. We do not consider that it was a particularly accurate statement of precisely what he told Dr Lowenstein but it doubtless gives a flavour of the information Dr Lowenstein had. We did not find Mr Small to be a convincing witness. His account was wholly self- exculpatory, giving no substantial indication of Hampshire County Council's case against him. He accepted that his name was placed on the temporary Department of Health list on 13 February 1996, after his application to an industrial tribunal had been dismissed. He was given the opportunity to make representations and then his name was placed on the permanent list in May. He said that he could not remember whether he had told Dr Lowenstein because he "did not regard it as being terribly relevant". Dr Lowenstein would have disagreed because he said clearly that he would not employ someone whose name was on the list.

It seems to us that the Appellants' decision to employ Mr Small was seriously flawed on two grounds. Firstly, there was in fact no effective continual supervision of Mr Small, despite Dr Lowenstein's 7th, 13th and 14th points. That doubtless reflects Dr Lowenstein's view that supervision was unnecessary but it also probably reflects the fact that he did not know what he should be guarding against.

More seriously, Dr Lowenstein never discovered the detail of Hampshire County Council's case against Mr Small. His 5th and 9th points were not proper reasons for overriding the recommendation of Mr Jackson. He has relied entirely on Mr Small's account and the assessment of Mr Small made by himself and his staff without knowledge of the county council's case.

Dr Lowenstein made much of the argument that care workers may suffer from injustice. It is, of course, possible that a person may be wrongly dismissed, even though the dismissal was fair. It is also possible that one employer might take a different view of the seriousness of an incident than another. However, one cannot make judgements about such matters unless one sees all the evidence and hears from both parties. That the Appellants did not do. It may not always be possible to obtain all the information necessary for a proper independent judgement to be made. If that is the position, it will be very difficult for a prospective employer properly to go behind the decision of the dismissing employer. In any event, the Appellants made no serious efforts to obtain the necessary information. The single letter dated 10 November 1995 to Mr Jackson (which, incidentally, does not suggest the receipt of much information from Mr Small at that stage) was not enough.

We agree with the Respondents that the Appellants were reckless in their employment of Mr Small. There was a clear breach of the duty imposed by section 64(1)(a) of the Children Act 1989 to safeguard the children's welfare.

We wish to add that we hope that, if they have not already done so, Hampshire County Council will introduce a procedure for issuing references which will prevent a repetition of the situation arising in this case where Mr Cockett, an employee of the county council, gave an entirely favourable reference for Mr Small despite Mr Small having been dismissed by the county council for misconduct. Mr Cockett may have been unaware of the dismissal, but he is unlikely to have been unaware that Mr Small continued to work for the county council when the two of them ceased to work together.

Conclusion

We agree with Mr Grant that Reasons 1, 2, 3 and 5 are not sufficient, by themselves in the particular circumstances of this case, to justify the cancellation of registration. The concerns raised under Reason l(b), 1(c) and 2 have now been met. The concern raised under Reason 3 could be met quite easily and, we suspect, would be if registration were continued and Ms Datta gave the Appellants some more specific advice. The concerns raised under Reasons l(a), 1(d), 1(e), and 5 remain but, although we consider that the children's welfare could be promoted rather more effectively than it is, we are not satisfied that the children are being failed on the grounds raised under those heads. However, the matters raised under Reasons 1, 2, 3 and 5 are not irrelevant. Over and over again, the evidence we have heard shows the Appellants relying solely on the judgements of Dr Lowenstein, made without reference to conventional practice. A reasoned rejection of convention may be defensible but an unwillingness to consider convention at all is less admirable.

Reason 4 is entirely different. The children were exposed to a potential risk. Child protection is an issue upon which a school can expect to be treated as rigorously as any other children's home. If, as he did with Reasons l(b) and l(c), Dr Lowenstein had recognised the impropriety of his actions and assured us that they would not be repeated, we might have continued registration as, indeed, would the Respondents. However, he has not. For the reasons we have given, his decision to employ Mr Small was a gross error of judgement. He also showed an inability properly to manage risk. Given the Appellants' reliance on the judgement of Dr Lowenstein and his reluctance to be guided by normal practice, we consider there is a substantial risk of him making another similar error of judgement and again exposing the children to danger.
We therefore conclude that the Respondents were right to cancel the registration of Allington Manor under Part VIII of the Children Act 1989 and we dismiss the appeal.
Mark Rowland
George Thomas
Robert Bessell