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Introduction

30.01  Many of the criticisms that we have made in the preceding chapter are equally relevant to the prevalence of physical abuse in the community homes within Clwyd but this form of abuse raises some different issues from those that arise in relation to sexual abuse. Obvious distinctions are that physical abuse tends to be less furtive and that it is much more likely to be the subject of complaint because the circumstances in which it occurs are likely to be less embarrassing to the victim. Moreover, there is a greater range of possible responses to complaints about physical abuse than in cases of sexual abuse. It is necessary, therefore, to consider separately in this chapter the incidence of physical abuse and the adequacy of the measures taken by Clwyd Social Services Department to deal with it, whilst avoiding repetition as far as possible

30.02  In Part II of this report we have given accounts of the complaints of physical abuse in nine local authority community homes in Clwyd and in Parts III and IV we have dealt similarly with six[419] other residential establishments for children in the county. On the evidence that has been presented to us we have found that physical abuse on a significant scale occurred in six of the local authority community homes and in four of the other establishments.

 30.03  Two specific questions that necessarily arise in considering allegations of physical abuse during the period under review are:

(a)  To what extent was corporal punishment prohibited in these homes and establishments?

(b)  What rules, if any, governed staff in exercising necessary or reasonable physical restraint?

  30.04  The permissibility of corporal punishment in educational and similar establishments has been a contentious subject for many years but Clwyd County Council issued a directive on the subject very early in its existence. The general legal background in relation to corporal punishment in community homes under the Administration of Homes Regulations 1951 and then the Community Homes Regulations 1972 is summarised in paragraphs 21 to 23 of Appendix 6. However, the Director of Social Services for Clwyd addressed a memorandum to staff in residential establishments for children and young people on 20 June 1974 in the following terms:

"Corporal Punishment in Residential Establishments for Children and Young People

1.  Revised Community Home Regulations are to be published at an early date. These regulations follow the policy of both former Authorities that no member of staff will inflict corporal punishment on any child or young person in any circumstances (Corporal punishment to include striking, slapping, pushing etc).

2.  The Children & Young Persons' Act (Community Home Regulations) 1972 states that 'The control of a Community Home shall be maintained on the basis of good personal and professional relationships between staff and the children resident therein'.

3.  The above Clwyd County Council policy decision is drawn to the attention of all staff employed in the appropriate Homes in order that there can be no unfortunate misunderstanding or misconduct, and any infringement of this policy will be viewed with the utmost gravity. Please ensure that every member of your staff is aware of this regulation."

  30.05  It was not until 1987 that corporal punishment was banned in state schools and the ban was not extended to community homes by statutory instrument until 1990 but we are satisfied that the staff in community homes in Clwyd, with few exceptions, knew from about mid 1974 that they were not permitted by their employing authority to inflict corporal punishment, even by slapping or pushing.

  30.06  There was much less certainty about the degree of physical restraint that was permissible. We are not aware of any national or local guidance on the subject that was readily available to members of the staff during the period under review and none of them received any training directed to this problem. The foreseeable results were that there were wide variations in practice and that many of the complaints of physical abuse that we received related to alleged excesses by members of staff in restraining residents.

  30.07  Corporal punishment in voluntary homes continued to be governed by Regulation 11 of the Administration of Homes Regulations 1951[420] until it ceased to be permissible in 1990. It remained permissible in private children's homes, to which the 1951 regulations did not apply, but the ban on it was extended to the registered category of such homes by Regulation 9 of the Children's Homes Regulations 1991, which also specified a number of other prohibited sanctions.

  30.08  The failure of Clwyd Social Services Department to deal effectively with the problem of physical abuse in its community homes stemmed mainly from shortcomings in its recruitment policies, the absence of adequate complaints procedures, the failure of staff to record and report untoward incidents accurately and lack of appropriate training. We will deal with each of these matters in turn, although they inevitably overlap to some extent.

Recruitment of staff

 30.09  Two aspects of Clwyd's recruiting procedures caused us particular concern. They were:

(a)  the frequent appointment of unqualified staff without advertising vacancies and without other conventional procedures;

(b)  the use of a pool of unqualified staff to fill casual vacancies.

  30.10  The first of these defects was a particular feature of recruitment at Bryn Estyn and exemplifies the extent to which Arnold was permitted to run that major community home as he saw fit, with virtually no management from above. In the preceding chapter we have criticised the way in which Norris was appointed initially but the casual process of recruitment was more startling in respect of other members of the care staff. This is illustrated most clearly by the circumstances in which David Birch and other members of the rugby set[421] were appointed. Of the five men and one woman belonging to that loosely connected group, only Phillip Murray had received any preliminary training or gained any experience in child care. The others all learned of vacancies at Bryn Estyn through the rugby club and began work almost immediately after an interview with Arnold or Howarth or both (in the case of Elizabeth Evans a woman representative of the Area Office was present); and only Robert Jones underwent professional training before Bryn Estyn closed. Night care staff without any experience or training were recruited similarly. Despite the special problems arising at Bryn Estyn because of its transformation from approved school to community home with education on the premises and the wide range in many senses of its resident population, these newly appointed members of staff were expected to learn their difficult roles "on the job" without any structured guidance or induction.

  30.11  This informal method of appointment of staff does not appear to have been adopted generally in Clwyd in the 1970s but the use of a pool system to fill vacancies gathered momentum from about 1976 onwards and remained in use until 1996. Several former members of staff gave evidence to us about the use of this system. One of them was a school dinner lady when she was asked whether she would like to work in the Social Services Department. She was then interviewed by an RDCO and her name was added to the pool although she had no qualifications. She was later telephoned by Leonard Stritch from Bryn Estyn and served there and at four other children's homes. That witness' experience was fairly typical of the recruitment and use of the pool and we heard particularly of its use to fill vacancies at Bersham Hall and at Cartrefle.

  30.12  Janet Handley, who was Area Officer for the Wrexham Maelor area from 1974 to 1985, said that the community homes were left to get on with recruitment themselves when responsibility for the homes reverted to headquarters from the Area Officers in 1980. Officers-in-Charge were given responsibility for staff appointments from the pool without reference to headquarters. The appointees were vetted but only by the provision of two personal references and a check with the police. Temporary appointments from the pool were regarded as a useful means of checking the suitability of the persons chosen and avoiding the need for formal dismissal procedures. In a review of staffing in community homes in the Spring of 1989, however, John Llewellyn Thomas and Michael Barnes wrote:

"The relief pool is of limited value. It is very costly and labour intensive and fails to attract sufficient staff at times of absence. It does not provide any senior (management) cover and cannot be relied upon to meet essential skill/gender needs. Moreover, the use of multiple carers encourages poor child care and discourages skill development because it is virtually impossible to adequately supervise transient staff."

  30.13  One of the objectives of this review was to reduce dependence on the pool by recruiting established care staff to provide cover for leave etc but this objective does not appear to have been achieved. John Jevons told the Tribunal that all the staff concerned were unhappy with the pool system. He wanted to replace it when resources would allow him to do so but it was not seen to be a high priority.

  30.14  The link between poor recruiting procedures and physical abuse should not be over-simplified. Poor recruitment was part of a much wider picture of reliance upon staff untrained in residential care, working with limited professional guidance and few opportunities for appropriate training. We recognise also that throughout the period under review there were very real difficulties about recruitment. There was no national pool or reserve of trained and experienced care workers on which a county such as Clwyd could draw and conditions of service generally for residential care workers were so unfavourable that the response to advertising of vacant posts was poor even at times of high unemployment.

Complaints procedures and the response to complaints

  30.15  Despite the absence of any formal complaints procedures, residents in community homes did complain from time to time of physical abuse and we have referred in Part II of this report to the more significant examples of the ways in which they were dealt with. It was comparatively rare for a complaint to reach a formal stage because the complainant would be discouraged with warnings about the potential consequences for him/her and the member of staff. The relevant incident would rarely be recorded in any log book in appropriate terms so that an uninformed reader would not surmise that an alleged assault had occurred. Moreover, if the complainant persisted to the point of signing a statement, he would probably not be interviewed again. The interview would be conducted by a comparatively junior member of staff and the likely consensus amongst senior staff at the home would be that the complainant (often seen as a troublemaker) was not to be believed. Even more perturbingly, on some occasions when the complaint was plainly true in substance, records would be distorted in order to nullify it or to minimise a serious incident. Finally, if a complaint did get through to headquarters,it would usually be dealt with by Geoffrey Wyatt: the complainant would usually be transferred elsewhere, if that action had not already been taken; and, at worst, the staff member would receive a mild reproof.

  30.16  The inadequacies of the system are fully illustrated by the history of Paul Wilson, who was ultimately convicted of a number of assaults on residents at Bryn Estyn. We have set out Wilson's history at Bryn Estyn in some detail in Chapter 10[422] and his later brief record at Chevet Hey in Chapter 14[423] (none of the counts in the indictment against him related to his period at Chevet Hey). The two accounts need to be re-read to absorb the full impact of Clwyd's successive failures to deal appropriately with this member of the care staff. He was fortunate to be retained after failing to disclose his conviction for theft; he was equally fortunate to survive his probationary period, when his defects of temperament were becoming known and his inability to write reports had been recognised; and he led a charmed life thereafter for over ten years, despite repeated occasions on which his use of unacceptable physical force to residents had been called into question.

  30.17  In the course of his period at Bryn Estyn there were not less than six serious complaints against Paul Wilson that came to the notice of headquarters. The first, which was also reported to the police, was not believed and the complainant was transferred to the much feared Neath Farm School in South Wales. Both Ramsay and Wyatt were involved, as well as Arnold, and it seems that Robert Jones was a known witness to the alleged assault, who was willing to attest to it. No action appears to have been taken on the second complaint, which was not pursued by the boy "officially", except that Wilson may have been given some advice by Arnold on Wyatt's initiative. In respect of the third, Arnold did see the complainant, who said that he did not wish to pursue the matter. On the fourth occasion the police were again involved. By this time Wilson was becoming anxious about his position but no action was taken against him and the boy was removed from Bryn Estyn (there was difficulty with Wilson when the boy returned 20 months later). The fifth complaint, about an incident on 25 January 1983 in respect of which Wilson pleaded guilty 11 years later to an assault occasioning actual bodily harm, was not pursued by the complainant beyond Arnold after the boy had been warned by Stritch that he would have to be moved, if he continued with his allegation[424].

  30.18  The last complaint about Wilson to reach higher authority was about incidents that occurred in August 1985 at Chevet Hey, which have been recounted in paragraph 14.23. As we have related in the three following paragraphs, there was quite a wide investigation into those incidents and Wyatt expressed dismay at what had been disclosed; but his surprising conclusion was that "We discovered nothing in our enquiries to prevent Mr Wilson returning to his duties at Chevet Hey". In the event, however, there was staff opposition to Wilson's return and a threat of legal action by the boy with the result that Wilson was ultimately placed at a day centre as an instructor/supervisor from January 1986, where he remained until he retired at the end of the following year[425].

  30.19  This summary of the outcome of some of the complaints made against Wilson that reached the notice of higher authority is by no means exhaustive but it suffices to illustrate the various ways in which the purpose of complaining was frustrated. Quite apart from the disinclination to believe complainants, at least three other factors had an important influence on the outcome of investigations. These were:

(a)  reluctance to set in train formal disciplinary procedures and misunderstanding of what had to be proved to justify written warnings and/or dismissal;

(b)  persistent weakness in dealing with trades union representations on behalf of individual members of staff;

(c)  the impact (but not an unavoidable effect) of a "containment" agreement with the trades unions.

  30.20  In the course of the evidence generally we have been told of quite a large number of complaints against individual members of the staff of the community homes which were reported to the police but which did not result in a prosecution. These complaints were investigated by the police and the decision not to prosecute was subsequently made by the police themselves or by the Crown Prosecution Service for a variety of reasons, usually encompassed within an explanation that there was insufficient evidence to justify a prosecution. Invariably, it seems, this decision was regarded by Clwyd Social Services Department as an end of the particular matter and no disciplinary investigation or similar action in relation to the relevant member of staff followed. The result was that the latter emerged unscathed, whatever the rights or wrongs of the matter might have been, and no remedial action was taken to deal with any underlying causes of conflict or unrest.

  30.21  In our judgment this approach to disciplinary matters was fundamentally flawed. It was based on the mistaken belief that the standard of proof required in a criminal prosecution applied to all complaints of misconduct by staff and it ignored the duty of the Council, in its dual capacities of employer on the one hand, and more importantly as carer for the children on the other, to investigate complaints thoroughly. A further error by the Social Services Department was to adopt a rule (the origin of which we do not know) that complainants and witnesses in care, of whatever age or capability, should not be heard in disciplinary proceedings because it was contrary to the best interests of children to be called to do so. Thus, no discretion was applied to the matter and the individual complainant was not consulted about it. The result was that a complaint was unlikely to reach the stage of disciplinary proceedings and, even if it did so, was still likely to fail, unless there was compelling evidence from at least one member of staff to support it.

  30.22  We have not found anything in Clwyd County Council's disciplinary code to explain or justify these errors of approach and it was an abdication of the Council's duties to rely upon police investigations of matters that involved important employment and welfare issues. We were told that the Social Services Department worked in close consultation with the Council's Personnel Department and received legal advice from the County Solicitor and the County Secretary but we are forced to the conclusion that the issues that we have raised in the preceding paragraph were never grasped and openly discussed. Instead, confused misapprehensions were accepted as an excuse for inaction, particularly by Geoffrey Wyatt, but his seniors and members of the other Departments must also bear a substantial share of the blame (we received no evidence that elected members discouraged the taking of disciplinary action, or that they displayed bias in favour of staff at appeals). The only mitigating factor appears to be that an Industrial Tribunal's adverse decision in the case of the Upper Downing gardener[426] had a lowering effect on morale but it seems that that decision turned on procedural considerations (the failure of the complainant girl to appear to give evidence to the Tribunal may also have been a factor) and it did not excuse a subsequent timid approach to disciplinary matters generally.

  30.23  This rule of practice that complainants should not be called to give evidence seems to have held sway throughout Clwyd County Council's existence, although (in its last few years) John Jevons would have been prepared to consider calling a child, if the occasion had arisen. Gledwyn Jones said that it had been custom and practice from the time when the local authority was first established and that it was designed to protect younger children from the ordeal of cross-examination but he conceded that the end result effectively was that no disciplinary action was taken to protect the child concerned or others.

  30.24  The other two factors mentioned in paragraph 30.19 involved the Council's relations with trades unions representing members of its staff but we are not persuaded that those trades unions went beyond the legitimate bounds of their duties. Some of the witnesses who gave oral evidence before us were critical of them. Emlyn Evans, for example, said that NALGO would defend its members regardless of the justice of the case whereas NUPE could be worked with. Michael Barnes said that the unions were very powerful, exercising influence at all levels of management, including the Council itself, with the result that, on occasions, their influence did exceed proper bounds. But we have not been given any example of improper conduct by a trades union representative: it was his/her duty to press the member's case as effectively as he/she could and the duty of management to respond firmly and fairly in the light of all the facts available. Instead, the evidence suggests that both senior management and middle management adopted an unduly timorous approach to staff problems within the Social Services Department and were too ready to accept what appeared to be an "easy solution".

  30.25  Geoffrey Wyatt's own evidence was that disciplinary proceedings were greatly influenced by the trades union (presumably NALGO), which batted hard for members of staff. He said that he himself was not afraid of the union but that disciplinary proceedings were seriously adversarial. Whilst Wilson was at Bryn Estyn he had become a NALGO steward and, when he was finally transferred from Chevet Hey to a day care centre, Wyatt (according to his own evidence) expected a huge trades union backlash but it did not transpire. It must be said also that many of the staff at Chevet Hey were opposed to Wilson returning there.

  30.26  The "containment" agreement to which we have referred was made between Clwyd County Council and the trades unions probably in October 1980. According to its preamble its objective was to achieve a rational process for a reduction in staff costs without compulsory redundancies and it contained details of an early retirement scheme for employees aged 50 years or over. The provisions in it that are of particular relevance to our inquiry were those dealing with "redeployment". They laid down the principles and procedures that were to govern transfers of employees from one post to another. Only one offer to an employee of a comparable post was required but an employee was entitled to refuse transfer to up to two non-comparable posts at a protected salary. Moreover, the Council undertook to endeavour to preserve the employee's status and to effect a further transfer to a post commensurate with the employee's original grade and the employee's ability to perform the duties of that post.

  30.27  We do not consider that this agreement should have inhibited proper disciplinary action against an employee who misconducted himself or herself nor did it justify the transfer of unsuitable care staff to senior positions in community homes. We have already criticised in the preceding chapter of this report the inappropriate redeployment of Stephen Norris from Bryn Estyn to Cartrefle in pursuance of the containment agreement[427] and equally stringent criticism must be made of the later appointment of Frederick Marshall Jones in July 1990 to succeed Norris as Officer-in-Charge of Cartrefle[428]. That appointment does not appear to have been expressed to be a redeployment because Bersham Hall, of which Marshall Jones had been Assistant Centre Manager since September 1989, was not about to close. The post at Cartrefle was not advertised, however, and the number of community homes in Clwyd was being reduced so that it is reasonable to place Marshall Jones' transfer to Cartrefle within the framework, or at least the policy, of the containment agreement.

  30.28  That transfer should never have been made and the appointment of Marshall Jones as Officer-in-Charge was inappropriate on a number of grounds. Although he had worked in residential child care since November 1974 (interrupted from 1977 to 1979), he had not received any professional training. Secondly, the post called for special sensitivity and understanding in the aftermath of the grave abuse of residents by Norris. Thirdly, Marshall Jones had a long record of physically abusive behaviour at Chevet Hey, of which headquarters knew or certainly should have known.

  30.29  Marshall Jones' history at Chevet Hey from 1979 to 1989 has been chronicled in Chapter 14[429] and we need not repeat it here. Viewing all the evidence about him, including his later record at Cartrefle[430], we set out in paragraph 14.19 our conclusions that Marshall Jones' disciplinary attitude and methods were very seriously flawed throughout and that he was unfitted for all the posts, particularly the senior positions, to which he was appointed. We do not believe that, if there had been an adequate complaints procedure, including effective and appropriate responses to complaints, Marshall Jones could have advanced as he did without a radical alteration in his approach and conduct. Even without such a system, senior and middle management should have been aware, through Wyatt, Barnes and Ellis Edwards particularly, of Marshall Jones' shortcomings. In the event, complaints and unrest about Marshall Jones persisted at Cartrefle and he lasted there only for just over two years, until he was suspended from duty from 17 September 1992.

  30.30  Other examples of inadequate responses to complaints of physical abuse are legion throughout this report and in our judgment they were probably the major factor in Clwyd's failure to eliminate such abuse in their community homes. In the end physical abuse could only have been swept aside if a new culture had been established through vigorous monitoring of both standards and practice, coupled with appropriate disciplinary action.