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The following case highlights a successful appeal against the decision to be placed on the Protection of Children Act List. However, the case also throws up some interesting facts in relation to the issue of lack of training and no restraint policies that we have written about in earlier articles which can be found in the News and Resources Section of the website.
DARREN MARK QUALLO v SECRETARY OF STATE FOR EDUCATION AND SKILLS [2003] 213.PC
Mr. Darren Mark Quallo successfully appealed under section 4(1)(a) of the Protection of Children Act 1999 against the decision by the Secretary of State for Education and Skills to include him on the POCA list, as an individual who is considered unsuitable to work with children.
The appeal arises out of two incidents at Tudor Lodge, a care home for children, on the 8th July 2002, as a result of which Mr. Darren Mark Quallo was suspended from his child care post by his employer, Janine's Recruitment Team Ltd and was referred to the Secretary of State for inclusion on the POCA list, which was provisionally approved by the Secretary of State decided on the 30th September 2002.
The appeal was heard on the 5th February 2004, Mr. Darren Mark Quallo represented himself with the assistance of Mr. A. Harris, operations manager of Janine's Recruitment Team Ltd, the Secretary of State was represented by Miss Karen Steyn of counsel. The counsel for the Secretary of State produced no oral evidence, but relied on witness statements of two other members of staff, namely Sarai Burke and Iain Terry, incident reports compiled by each of them and on records of reports made on the 9th July 2002 by other residents at Tudor Lodge, namely Emma Maiden, Liam Peters, Christopher Lynch and Mark Caddell, the latter (Liam Peters, Christopher Lynch and Mark Caddell) being the three complainants (plaintiffs).
The Tribunal heard the oral evidence of the Mr. Darren Mark Quallo, read his statement of the 24th August 2002, saw the video-taped interviews of Christopher Lynch and Mark Caddell by D.C. Susan Lister and read her interview of the appellant on the 29th August 2002.
The issue before the Tribunal can be simply stated; under section 4(3) of the Act the Tribunal must decide whether it is satisfied on the balance of probability that the appellant was guilty of misconduct which harmed a child or placed a child at risk of harm and that the appellant is unsuitable to work with children. If the Tribunal is not satisfied of both, the appeal must be allowed, otherwise it must be dismissed.
Tudor Lodge is a residential home in Purley, Surrey, for disturbed adolescents. Some are also educated there by teachers who come to the premises for the purpose, a minority of the residents go out to school. The three boys (Liam Peters, Christopher Lynch and Mark Caddell) involved in the two incidents of the 8th July 2002 were all being educated at Tudor Lodge.
The first incident involved Christopher Lynch and Mark Caddell and, according to the Mr. Darren Mark Quallo, happened during the morning. The two boys, then respectively 14 and 12 years old, were playing with plasticine, rather too exuberantly; they were throwing it at each other and at the Mr. Darren Mark Quallo and took no notice when he asked them to stop. Mr. Darren Mark Quallo then took hold of Mark Caddell's right arm and took the plasticine away from him. Mark Caddell was later found to have two bruises each the size of a 2p piece on his right arm.
The second incident occurred at about 6 or 7 p.m. on the 8th July. In this case Mr. Darren Mark Quallo was watching the news on television when Liam Peters, a 14 year old resident, came in to the room, wishing to watch a video tape which he had brought with him, apparently of boxing. Mr. Quallo told Liam Peters that he could watch his video tape when the news had finished, but he immediately put his tape into the recorder, obliterating the news broadcast which the appellant was watching. Mr. Quallo removed the tape and returned to his chair which was by the door. Liam Peters then opened the door (he said he kicked it), banging it onto Mr. Quallo chair and hitting Mr. Quallo with it. When Mr. Quallo got up, Liam Peters went into the nearby piano room, where, as it happened, two social workers, Iain Terry and Sarai Burke were talking to Christopher Lynch and Mark Caddell about the earlier incident. Liam Peters closed the door to the piano room behind him and would not admit Mr. Quallo who was banging on the door demanding to be let in.
When Mr. Quallo got in, the verbal altercation continued and soon degenerated into physical contact. Mr. Quallo seized Liam Peters by his clothing and fearing violence (though much younger, Liam Peters is of about the same size as Mr. Quallo), held him in a headlock. Urged by the social workers to release his grip, Mr. Quallo did so and Liam Peters ran at him with a chair, so Mr. Quallo again restrained him in a similar way, manouvering him into a prone position on a sofa. Iain Terry and Sarai Burke again prevailed upon Mr. Quallo to release his hold and he did so, this time without further violence, and left the room. Liam Peters was later found to have scratches on his neck and a bruise on his left ear lobe.
There are some minor differences in the accounts of those incidents. Mark Caddell, the 12 year old involved in the plasticine incident, said that Mr. Quallo grabbed his arm and squeezed it really hard, he also said that Mr. Quallo also slapped his right leg and said that next time it would be his fist.
Christopher Lynch, the 14 year old, said that Mr. Quallo, having taken the plasticine from Mark Caddell, came over to him, took his plasticine away and kicked him on his right leg, but did not cause any bruising. Mark Caddell also said that Mr. Quallo kicked Christopher Lynch's right leg and added that, at the end of the incident, Mr. Quallo got hold of the back of the neck of his (Mark Caddell's) jumper, pulled him up by it and told him he should start to behave.
There were no adult witnesses, other than Mr. Quallo, to the plasticine incident, nor to the first part of the video incident. In his statement of complaint, Liam Peters admitted inserting his video tape while Mr. Quallo was watching the news. He said that Mr. Quallo then kicked him out of the way and threatened him with his fist and with abusive language before removing the video tape. He said that he kicked the door causing it to hit Mr. Quallo's chair as he left the room to go to the piano room. He did not mention barring Mr. Quallo's way into the piano room but said that once Mr. Quallo got in he grabbed him and held him against a window, while he, Liam Peters, calmly asked to be released. He struggled and hit out at Mr. Quallo who put him into a headlock, squeezing tightly so that he found it difficult to breathe. Eventually he managed to struggle free.
Christopher Lynch and Mark Caddell did not describe the video incident in their statements of complaint, though both mention it and Christopher Lynch said he found it upsetting.
Emma Maiden (another resident at Tudor Loge) said that Mr. Quallo pushed Liam Peters against a window while holding him round his neck and later put him in a headlock and squeezed tightly. She described Liam Peters as extremely agitated and upset. Sarai Burke (one of the social worker's) said in her witness statement that when she entered the piano room Mr. Quallo had hold of Liam Peters clothing and was holding him at arm's length away from him, asking for an apology. They were both shouting, Liam Peters was asking to be released. She and Iain Terry pleaded with Mr. Quallo and Liam Peters to calm down.
She (Sarai Burke) also recalled two occasions on which Liam Peters threw a chair at Mr. Quallo, but was not sure of the sequence of events. In her incident report she also recalled the headlock and Mr. Quallo restraining Liam Peters on the sofa. Iain Terry (the other social worker) in his witness statement said that he heard Liam Peters laughing, then he came into the piano room and held the door against Mr. Quallo who was trying to follow him. Iain Terry then told Liam Peters, who was still laughing, to leave the door, he did so and Mr. Quallo came in. There was some shouting and Mr. Quallo grabbed Liam Peters clothing. He tried to get Mr. Quallo to let go. Liam Peters tried to hit Mr. Quallo, then threw a chair at him. In response Mr. Quallo got Liam Peters in a headlock, holding him down on a sofa. Both social workers tried to get Mr. Quallo to loose his grip, but when he did so, Liam Peters got another chair so Mr. Quallo got hold of him again. In the end Mr. Quallo let go and left the room. Iain Terry's incident report is to much the same effect.
For different reasons, the Tribunal was cautious about all of that evidence. A report by a consultant psychiatrist described Liam Peters as one who has been observed to make up stories. Christopher Lynch and Mark Caddell in their video interviews both indicated Mark Caddell's left arm as the one which the appellant held, whereas it was in reality his right arm.
It is plain that Tudor Lodge offers a home to some very disturbed children, who can be, without doubt, very difficult to manage. The medical reports and other documents about the three boys involved in these incidents made it clear that they all exhibit challenging behaviour, perhaps none more so than Liam Peters, who was described in a psychiatric report - Dr. Jenny Walker's report of the 5th September 2002 - as having "longstanding behavioural problems", being "physically aggressive towards staff", "deliberately antagonising" his peers and generally manipulative. Dr. Walker said that it had become increasingly difficult to set limits and boundaries for Liam because of concerns that this would result in either assault or self-harm. It was also apparent that Mr. Quallo had had very little training in dealing with these difficult children and what little he had had was by way of friendly informal advice from colleagues rather than any actual instruction. Moreover he had never seen a care plan for Liam Peters though he imagined that there must have been one; he implied that, as agency staff, he would not see such things. The evidence gave the Tribunal the impression that agency staff, even of the appellant's length of service at Tudor Lodge, were regarded as temporary and were not seen as full members of the caring team.
The 8th July 2002 was a bad day for Mr. Quallo, he was coping with a bereavement, making funeral arrangements and at the same time was moving house. The previous day, July 7th, was his birthday, though any effect of the anniversary is not recorded. The Tribunal is unable to find much to criticise in Mr. Quallo's handling of the plasticine incident, it is not satisfied on the balance of probabilities that he kicked Christopher Lynch though he did shout at both boys and grabbed Mark Caddell's right arm while he took away the plasticine. The Tribunal is not satisfied that he slapped Mark Caddell or made any threat to punch him with his fist. There was harm to Mark Caddell in the form of the two small bruises on his arm but it was minimal. At the end of the video interview Mark Caddell said that he was not really upset by the incident and that it was not normal behaviour for Mr. Quallo. The Tribunal agreed with Mr. Quallo's comment that if the video incident had not happened the plasticine incident would not have achieved the prominence it did.
As for the video incident, the Tribunal finds that it began with an example of Liam Peter's antagonistic and provocative behaviour in taking over the television to watch his video while Mr. Quallo was watching the news and as such Mr. Quallo is not to be criticised for objecting and removing the video tape. Liam Peters continued by banging the door either once or more than once into the Mr. Quallo's chair and then went into the piano room. In the Tribunal's view Mr. Quallo is to be criticised for following him. Liam Peters was obviously in a temper, there were two other staff members in the piano room and it would have been much more sensible to let them deal with him. By following he could only make the situation worse, as in the event, he did. His pursuit of an apology was ill-advised. To his credit he eventually heeded his colleagues' advice to release Liam Peters and the incident ended. Mr. Quallo should have brought it to an end much earlier by not going into the piano room; it would have been wiser to leave Liam Peters to calm down and deal with him later. Mr. Quallo admitted that he could have handled things better and said that he would deal with such a situation differently, should it arise in the future.
The Tribunal found that Mr. Quallo's pursuit of Liam Peters into the piano room amounted to misconduct. It is not satisfied that holding Mark Caddell's arm was, in the circumstances, misconduct. There was harm to Liam Peters in the form of a small bruise to his left ear lobe: the Tribunal was not satisfied that the scratches to his neck were caused in the video incident, there was no evidence of anything likely to have caused a scratch, according to the doctor's sketch the scratches were almost vertical whereas scratches caused by grasping someone's neck would perhaps be more likely to be horizontal and Liam Peter's medical records disclose unrelated scratches less than a month earlier, on the 12th June. However, a bruised ear lobe is harm, if only minimal harm, so technically, at least, the Tribunal must pronounce itself satisfied under section 4(3)(a) of the Act. The Tribunal did not find that any of the children involved in either incident was at risk of any physical harm significantly beyond that which actually occurred.
Is Mr. Quallo's unsuitable to work with children? He has been a residential social worker for some eight years, working with children for the last four or five years. Not only has there been no previous complaint about him, he had been working at Tudor Lodge, albeit as agency staff, for quite a long time and had been offered a full-time post there, which suggests a measure of approval. He was assisted in his appeal by the Operations Manager of Janine's Recruitment Ltd, his employer at the material time, which must be seen as an indication of the company's view of Mr. Quallo's qualities. Mark Caddell said in his video interview that he generally got on well with Deon (Mr. Quallo) and that the two incidents were not typical. It seemed to the Tribunal that the 8th July 2002 was a particularly bad day for Mr. Quallo in the sense that he probably arrived at work in ill-humour and irritable, maybe as a result of birthday celebrations, maybe because of the stresses on him at that particular time, maybe there were other factors. For whatever reason, Mr. Quallo on that morning was well below his best in coping with the challenging behaviour of the residents of Tudor Lodge.
His difficulty was also compounded by a total lack of any formal training or instruction; in particular it is both surprising and alarming that he had never been shown care plans, behavioural programmes or the like, to indicate in relation to each resident what the carers had to deal with and how they should manage difficult situations.
The social workers, Sarai Burke in particular, evidently told Mr. Quallo about Tudor Lodge's "no restraint" policy when the incident with Liam Peters was in its later stages. It was not wholly clear to the Tribunal and was obviously not clear to Mr. Quallo precisely what a "no restraint" policy entails, since restraint may be necessary and unavoidable, for example where serious danger to staff or residents is likely.
Whatever that policy is or was, it should have been explained to Mr. Quallo when he took up his duties at Tudor Lodge; such instruction as he was given (it seems to have been exiguous in the extreme) was totally inadequate. In those circumstances the fact that Mr. Quallo's performance fell below par on one particular day does not, in the view of the Tribunal make him unsuitable to work with children. The Tribunal is not satisfied under section 4(3)(b) of the Act, accordingly Mr. Quallo's appeal must be allowed. The findings of the Tribunal are in every instance unanimous; the Tribunal accordingly directs that the name of the appellant Darren Mark Quallo (also known as Deon Quallo) be removed forthwith from the list of individuals, kept by the Secretary of State under section 1 of the Act, who are considered unsuitable to work with children.
Other Related articles:
He who Hesitates is Lost - He who Dares Wins - Omissions - failing to Act when required to do so - more info
Guilty until proven innocent? - more info
No Restraint Policies? - more info
Nurses win case against employer for attack at work - more info
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