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Name:

Daniel Percival

Registration number:
W/2090424
Date:
16/11/2020 - 18/11/2020
Time:
09.30
Residential Child Care Worker
Immediate order pending removal on 19/12/2020
This hearing will be taking place by Zoom. Please contact us at hearings@socialcare.wales if you would like to observe
Previously Keys Childcare
Fitness to Practise Panel

Allegations

That, whilst registered as a Residential Child Care Worker and employed by Keys Childcare:

1. On or about 11 May 2019, whilst travelling in a car with Young Person A, on one or more occasions you:

(a) Permitted Young Person A to put her finger into your mouth;

(b) Inserted your finger into Young Person A's mouth;

(c) Having inserted your finger into Young Person A's mouth, you wiped your finger on Young Person A's leg on top of her clothing;

(d) Having permitted Young Person A to put her finger into your mouth, you permitted Young Person A to wipe her finger on your leg on top of her clothing;

(e) Placed your hand on Young Person A's leg on top of her clothing;

(f) Permitted Young Person A to place her hand on your leg on top of your clothing;

(g) Took Young Person A’s hand and put it onto your groin area;

(h) Put your hand on Young Person A's genital area on top of her clothing and rubbed the said area with your hand;

(i) Made inappropriate comments to Young Person A, including:

(i) 'You can wipe your hand on my leg I don't mind', or words to that effect;

(ii) 'You're wiping your hand down, is that what I should be doing', or words to that effect;

(iii) Telling Young Person A that she didn’t have to stay so far down your leg and that you 'wouldn’t feel uncomfortable', or words to that effect;

(iv) Having taken Young Person A's hand and put it onto your groin area on top of your clothing, you told her 'this is the area you want to avoid', or words to that effect.

2. On an unknown date or dates, you spoke inappropriately to Young Person A in that you:

(a) Referred to her as 'Easy Jet';

(b) Said to Young Person A, 'You're a bit bigger than the rest of the planes, prettier than the planes and you’ve got loads of people in your cockpit', or words to that effect.

3. On an unknown date or dates you:

(a) Cuddled Young Person A;

(b) Touched Young Person A's breast when you put your arm around her;

(c) Put your finger under Young Person A's bra strap through her top.

4. Your conduct in 1 and/or 2 and/or 3 above was sexually motivated.

And your fitness to practise is impaired by reason of your serious misconduct.

Decision on facts

Decision

We find the following Charges proved:

Charge 1 in each particular

Charge 3 on the limited basis set out below

Charge 4

Charge 5 in respect of charges 1 and 4 only.

Charge 6 on the basis of your admission

Reasons

We have thoroughly read a bundle of documents provided in advance of the hearing and we admitted and read a set of supervision records at the outset of the hearing. We have viewed the video-recorded police interview of the young person involved in this case. She is being referred to as Young Person A for her protection. We have not heard direct evidence from Young Person A because her age and vulnerability would make that inappropriate. We have heard from you in evidence and we have also heard oral evidence from the Deputy Manager of the Children’s Home in which you used to work. We also listened to audio recordings of your police interviews.

The bundle includes a number of character references which we have read carefully and we have noted that you are of good character with no previous regulatory findings.

We have heard detailed submissions made by Mr Griffiths for Social Care Wales and by Mr Kennan on your behalf.

We have also received legal advice.

You are registered with Social Care Wales as a Residential Child Care Worker. At the relevant time, you were employed at a North Wales Children’s Home. Young Person A was resident at the home. She was 14 at the time, had a difficult and complex family background and had been subject to Child Sexual Exploitation.

Young Person A related allegations to the home’s Deputy Manager. A report to the safeguarding authority, an employer’s disciplinary procedure and a police investigation followed. Young Person A did not want to take a criminal complaint forward initially but you were interviewed by the police. You denied the allegations and, when that was relayed to Young Person A, she agreed to speak to the police within a video recorded interview. You were interviewed by the police again following that. Young Person A ultimately decided that she did not want to proceed with a criminal complaint. She provided a statement indicating that she did not want to go to court but she did not retract her allegations. You were not subject to police prosecution but your name has recently been added to the Disclosure and Barring Services barred lists as a result of Young Person A’s allegations. The fact that the DBS had taken that action played no part in our consideration of whether Young Person A’s allegations were true.

We carefully evaluated the evidence and have given particular regard to the fact that whilst we had the opportunity to ask you questions, we did not have the same opportunity with Young Person A. We carefully considered what weight we should give her evidence in view of that.

We concluded that her evidence was consistent over time. She provided detail and the allegations did not vary in ways that we considered significant. Her account did not change according to her audience. She gave the same information to the Deputy Manager and to the police. She did not appear to be motivated by anger or any other negative emotion. She was not vindictive and did not appear to want to cause you any harm. In fact, she expressly indicated that she did not want to see you significantly punished. At one point, she expressed concern that you would miss a holiday. We carefully reviewed the video recording of her police evidence. Her face had been blurred to protect her confidentiality but we were, nevertheless, able to judge how she gave her information. She spoke naturally, without hesitation and apparently with good recollection of the events. The earliest recording of her account was given contemporaneously. Her later accounts, including the police interview, were close in time to the alleged events.

Although there was no opportunity to question her about the events, you were, in the main, not putting forward any contrary narrative. You were simply disputing the truth of what she alleged and it was not therefore obvious that questioning would have elicited significantly different evidence.

We found your evidence vague. You had a poor memory for many of the events. We took into account the passage of time but we also noted that your supervision records made it clear that there had been concern about whether you were at risk of allegations as a result of your interactions with Young Person A. We felt that some of the occasions referred to by Young Person A within her allegations should, therefore, have been at the forefront of your mind. You accepted that you tended to act in a more physical way than some of the other carers and accepted that some of your interactions with Young Person A may have been ill-advised with the benefit of hindsight.

Even allowing considerable care for the limitations of hearsay evidence, we found Young Person A‘s evidence very persuasive and we decided that we should attach significant weight to it. We found that Young Person A’s evidence was more reliable in relation to the disputed events than yours.

Our decisions in relation to the reliability of Young Person A’s evidence were of significant importance in the way that we approached all of the Charges but we considered the Charges individually and reached the following conclusions.

Charges

That, whilst registered as a Residential Child Care Worker and employed by Keys Childcare:

1. On or about 11 May 2019, whilst travelling in a car with Young Person A, on one or more occasions you:

a. Permitted Young Person A to put her finger into your mouth;

We accepted Young Person A’s evidence that you allowed her to put her finger into your mouth.

b Inserted your finger into Young Person A's mouth;

You accepted that you had put your finger "towards" Young Person A's mouth. You also accepted that your finger may have accidentally gone into her mouth. Young Person A was very clear about what had occurred. We found this allegation proved.

(c) Having inserted your finger into Young Person A's mouth, you wiped your finger on Young Person A's leg on top of her clothing;

You admitted that you wiped your finger on Young Person A's clothing and that you probably did this because it was wet. Young Person A’s allegation was clear. We found this proved.

(d) Having permitted Young Person A to put her finger into your mouth, you permitted Young Person A to wipe her finger on your leg on top of your clothing;

We were also persuaded that you allowed Young Person A to reciprocate by wiping her finger on your leg.

(e) Placed your hand on Young Person A's leg on top of her clothing;

(f) Permitted Young Person A to place her hand on your leg on top of your clothing;

We accepted Young Person A’s evidence that you placed your hand on her leg and she on yours.

(g) Took Young Person A’s hand and put it onto your groin area;

(h) Put your hand on Young Person A's genital area on top of her clothing and rubbed the said area with your hand;

(i) Made inappropriate comments to Young Person A, including:

(i) 'You can wipe your hand on my leg I don't mind', or words to that effect;

(ii) 'You're wiping your hand down, is that what I should be doing', or words to that effect;

(iii) Telling Young Person A that she didn’t have to stay so far down your leg and that you 'wouldn’t feel uncomfortable', or words to that effect;

(iv) Having taken Young Person A's hand and put it onto your groin area on top of your clothing, you told her 'this is the area you want to avoid', or words to that effect.

We accepted Young Person A’s evidence that you put her hand on your groin above your clothing. We accepted that you reciprocated by placing your hand on Young Person A’s genital area over her clothes. We also accepted that in the course of this activity, you made the various comments that Young Person A attributed to you.

2. On an unknown date or dates, you spoke inappropriately to Young Person A in that you:

(a) Referred to her as 'Easy Jet';

(b) Said to Young Person A, 'You're a bit bigger than the rest of the planes, prettier than the planes and you’ve got loads of people in your cockpit', or words to that effect.

We noted the evidence of the Deputy Manager to the effect that Young Person A sometimes made derogatory mark remarks about herself and we considered carefully what Young Person A said about the reference to Easy Jet. You said that the reference to Easy Jet came from Young Person A rather than you. In relation to this particular aspect of Young Person A's evidence, we were not satisfied that, on the balance of probabilities, you rather than she had made reference to Easy Jet and we decided that allegations 2a) and 2b) are not proved.

3. On an unknown date or dates you:

(a) Cuddled Young Person A;

You admitted to hugging Young Person A and it was clear from the evidence within the documents and the evidence of the Deputy Manager that hugging the residents by putting an arm around them while standing alongside them was not against the home's policies. Young Person A used the word “cuddle” interchangeably with the word “hug”. You accepted that you had hugged Young Person A and we found this Charge proved as drafted on that basis.

We were not persuaded that there was evidence that this was an intimate embrace rather than the sort of contact which was allowed within the home. We did find, however, that Young Person A was very likely to have perceived this physical contact as more than a professional interaction.

(b) Touched Young Person A's breast when you put your arm around her;

We believed Young Person A's account that you had touched her breast whilst putting your arm around her. It was not clear from her evidence whether she thought this was deliberate. We found this allegation proved but we could not be satisfied that it was deliberate than an accidental action. Again, we concluded that it was likely that Young Person A would have read more into this, even if it was accidental.

(c) Put your finger under Young Person A's bra strap through her top.

Young Person A gave a credible and detailed account in relation to the occasion on which she says that you placed your finger under her bra strap. We could not say on the available evidence whether this was likely to have been accident, a joke or a deliberate act.

We find sub-paragraph c) proved on the basis that it is drafted but we have not been persuaded that this was a deliberate act on your part.

4. On an unknown date or dates, you behaved in an inappropriate and/or flirtatious manner towards Young Person A

It follows from our findings in relation to Charge 1 that we are satisfied that you behaved in a way which was both inappropriate and flirtatious towards Young Person A. We find Charge 4 proved on that basis.

5. Your conduct in 1 and/or 2 and/or 3 and/or 4 above was sexually motivated.

We are satisfied that your behaviour under Charge 1 was clearly sexualised behaviour and that you were sexually motivated. The events that Young Person A has described could have no other cause and we are satisfied that it is proper for us to infer sexual motivation on your part. These actions would also be considered to be sexual by an objective observer.

We find Charge 5 proved in respect of Charge 1. It follows that it is also proved in relation to the flirtatious behaviour element of Charge 4. We have not found Charge 2 proved and we are not persuaded your action under Charge 3 were deliberate.

We therefore find Charge 5 proved in respect of your conduct in Charges 1 and 4 only.

6. On or around 19 September 2020, you were barred by the Disclosure and Barring Service in relation to its children’s and adult’s lists.

We have seen a document from the DBS confirming that you have been included in the barred lists. You also accept that is the case. We therefore find Charge 6 proved on the basis of your admission.

Decision on impairment

We have heard submissions made by Mr Griffiths and Mr Kennan has confirmed that you do not dispute that a finding of impaired current fitness to practise is appropriate given the conclusions that we have reached at the facts stage. We have received further legal advice and we have had reference to the Code of Professional Practice for Social Care.

Decision

We find that your fitness to practise is currently impaired.

Reasons

Notwithstanding your position of acceptance that a finding of current impairment is appropriate in light of our factual findings, we have undertaken a consideration of the matter because it is an issue on which we are required to exercise our discretion irrespective of the parties’ positions.

Our factual findings amount to a determination that you engaged in inappropriate sexual contact with a vulnerable 14-year old girl who was in your professional care. This amounts to a breach of the trust that had been placed in you as a professional. It is likely to have aggravated the difficulties that Young Person A already suffered. We have decided that it amounted to a breach of a core principle of social care and showed a lack of professional integrity. It risked undermining public confidence in social care and the care afforded to children within Children's Homes in particular. We have concluded that you present a risk to individuals using services because of the potential for you to overstep professional boundaries in the future.

Your behaviour amounts to a failure to meet the standards required by the Code of Professional Practice for Social Care and, in particular, Section 5 of the Code which states:

You must act with integrity and uphold public trust and confidence in the social care profession.

And section 5.4 which states:

In particular you must not form inappropriate personal relationships with individuals, their families or carers.

Your conduct clearly amounts to serious misconduct and the inclusion of your name on DBS barring lists also forms a ground of impairment.

There is not enough evidence to suggest that you have remediated your impairment in the period since 2019. In any event, the attitudinal issues which underlie your behaviour would be difficult ones to remedy.

We find that your fitness to practise is currently impaired.

Decision on disposal

Mr Percival chose to leave this hearing prior to the reading of our decision at the impairment phase but he was still represented by Mr Kennan.

We heard further submissions from Mr Griffiths. Mr Kennan chose not to make further submissions at this stage in light of our factual findings. We have received further legal advice. We have also reminded ourselves of the relevant sections of the Social Care Wales Indicative Disposals Guidance.

Decision

We impose a Removal Order and we make an Immediate Order.

Reasons

We have considered the lists of aggravating and mitigating factors set out within the Indicative Disposal Guidance.

We noted the following features which we consider as aggravating the seriousness of Mr Percival’s conduct. His actions took place in the workplace, amounted to an abuse of his position and were in breach of the trust placed in him by his employers and others. We recognised that Mr Percival disputed that the allegations were true but, in light of our findings, this amounts to a failure to accept wrongdoing and an absence of demonstration of insight and remorse.

His behaviour occurred notwithstanding that Mr Percival had been warned in supervision about the need to maintain proper professional boundaries with Young Person A specifically. He had warnings and should have heeded them.

We weighed this against the mitigation. We have a number of written character references which speak positively about Mr Percival’s previous practice and his character in general. The Deputy Manager gave evidence about the value she could see in Mr Percival’s previous practice and we noted again that Mr Percival has not been subject to any previous regulatory findings.

Mr Percival did show some limited insight through his acceptance that, with hindsight, some of his admitted actions were ill-advised. When asked about that by the Panel he was able to state what the potential damage to Young Person A might by, although he did not elaborate on it.

Mr Percival has worked in social care for a considerable period and appears committed to continuing to do so.

We took into account the environment in which he was working at the time. This did allow one-to-one working over extended periods between Young Person A and male staff members. He could have been monitored more closely after the warning was given in supervision.

Having balanced these factors against one another, we decided that this misconduct and the impairment of Mr Percival’s fitness to practise was too serious for no action to be taken.

We recognise the practical impact of the fact that Mr Percival is subject to a barring decision but we have considered each potential disposal notwithstanding that because we acknowledge the possibility that the barring decision could be overturned.

A Warning would not protect members of the public from the risk of repetition and would not be adequate to mark the seriousness of the behaviour so as to protect public confidence.

A Conditional Registration Order would be exceptionally difficult to draft for a number of reasons. The existence of DBS barring prevents Mr Percival from working at all and the nature of the misconduct means that conditions are unlikely to be adequate to prevent repetition. We decided that this was not an appropriate disposal.

A Suspension Order would protect the public whilst it was in force and we could make it subject to review but for this to be appropriate we would need to have some evidential basis on which to conclude that the risk level would have significantly reduced at the time of the review. We were unable to think of what Mr Percival could do to adequately reduce the risk of harm even within a 12-month time frame given the gravity of the misconduct. It would need a revelation in Mr Percival’s thinking and there is no evidence that such a change is likely.

We have decided that it is necessary to impose a Removal Order. This disposal is in keeping with the Indicative Disposals Guidance and in particular paragraphs 5.2 and 5.3 which deal with sexual misconduct. In our view it is proportionate to the seriousness of the misconduct. We are satisfied that no lesser disposal would be adequate to protect the public.

We discharge the interim Suspension Order which is currently in force but we impose an Immediate Order. We recognise that Mr Percival is subject to DBS barring. The only basis on which Mr Percival might become free to work is if he appealed both the barring decision and this decision and the barring appeal was heard first and was successful. That is not, in our view, a likely scenario but we consider it appropriate to act so as to protect against that limited risk. We have determined that it is necessary to impose an Immediate Order to protect members of the public and the public interest. The effect of the Immediate Order will be to suspend Mr Percival until the Removal Order takes effect at the expiry of the appeal period.