DF V 3182 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge M. Rowland |
| Judgment Date | 23 April 2015 |
| Neutral Citation | 2015 UKUT 199 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | Disclosure and Barring Service |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | V 3182 2012 |
| Appellant | DF |
IN THE UPPER TRIBUNAL Case No. V/3182/2012
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Rowland, Ms Linda Redford, Ms Sally Derrick
The Appellant appeared in person.
The Respondent was represented by Ms Zoë Leventhal of counsel, instructed by the Treasury Solicitor.
Decision: Permission to appeal against the decisions of the Independent Safeguarding Authority dated 14 November 2012 and of the Disclosure and Barring Service dated 31 October 2013 is granted.
However, the appeals against those decisions and the decision of the Independent Safeguarding Authority dated 12 June 2012 are dismissed and so all three decisions are confirmed.
REASONS FOR DECISION
The procedural history of this case
1. The Respondent, the Disclosure and Barring Service (“DBS”), is the successor of the Independent Safeguarding Authority (“ISA”), the latter’s functions having been transferred to it on 1 December 2012. Among those functions, are the maintenance of the children’s barred list and the adults’ barred list under section 2 of the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”) and the inclusion of people in, or their removal from, the lists. Under section 3 of that Act, those included in the lists are barred from working in regulated activity relating to, respectively, children or vulnerable adults.
2. On 2 June 2011, the Appellant was included in both lists by the ISA because it had been notified (apparently on 11 May 2011 in the form of a Police National Computer data report) that she had been convicted at Guildford Crown Court on 17 November 2010 of two offences under section 1(1) of the Children and Young Person Act 1933. Such convictions required the ISA to include the Appellant in the lists but also required it to give her an opportunity to make representations, if she wished, as to why she should be removed from the lists (see paragraphs 2 and 8 of Schedule 3 to the 2006 Act as then in force (set out in paragraph 1 of the Appendix to this decision) and regulations 4 and 6 of, and paragraphs 2 and 4 of the Schedule to, the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009/37)). She duly made representations, challenging the reports of police officers that had led to her prosecution and in effect arguing that she had been wrongly convicted.
3. Nonetheless, on 12 June 2012, the ISA decided not to remove the Appellant from the lists. In its decision, it said –
“You have made representations disputing whether the events that gave rise to your conviction happened. We have not considered your representations in this regard. This is because we do not re-examine the facts that gave rise to your conviction but treat them as proven on the balance of probabilities so long as the conviction stands.
It is recognised that you have stated that the circumstances surrounding your conviction were born from false and malicious allegations made up by the police and Social Services. However, there is no evidence or information to substantiate that there was collusion, malice or any other factors involved that would case doubt upon the circumstances surrounding your convictions.
Having considered your representations we have decided that it is not appropriate to remove you from the Children’s Barred List or the Adults’ Barred List. This is because you have stated that that the children were not living at the address but at a chalet which was clean and tidy. You further added that the offences were due to you visiting the address however your oldest child was interviewed by socials services and police she stated you had told her to tell people that they lived at the chalet when they in fact lived at the house.
It is acknowledged that you do not accept that you were neglectful to your children and it is noted that you have provided character references from your GP and Psychologist [actually a psychotherapist] which state that in their opinion you does not pose a threat to children; however Social Services have not returned your children to you and Social Services have now obtained full care orders with a care plan for adoption. Although a reference from [the psychotherapist] states that you have complied with all requirements set out by social Services this opinion is outweighed by the fact that all contact between you and your children has now been prevented.
The remainder of your representations appear to be in relation to the conviction you have for animal cruelty and focus on the reasons as to why your disqualification from having an animal should be lifted, which is irrelevant to our decision. You have provided certificates in relation to the animal care courses you have carried out but there is no corroborating information relating to the work you have carried out in relation to having your children returned to you. You have further stated that you are at present studying a middle years award in positive parenting and child psychology but there is no documentation on file to support this.” (Typing and grammatical errors in the original.)
4. On 12 September 2012, the Appellant applied to the Upper Tribunal for permission to appeal under section 4 of the 2006 Act (see paragraph 6 of the Appendix to this decision), saying that not all contact with her children had been stopped (in support of which she provided photographs) and that she wished to prove that lies had been told against her and so clear her name.
5. On 14 November 2012, the ISA removed the Appellant’s name from the adults’ barred list in the light of the coming into force of section 67 of the Protection of Freedoms Act 2012 (see paragraph 2 of the Appendix to this decision). It said –
“Based on the information currently available to the ISA it does not appear that you have worked, are currently working, or are likely to work in regulated activity with vulnerable adults in the future. Accordingly your name has been removed from the Adults’ Barred list on 14 November 2012.
As your name is no longer included in the Adults’ Barred List, we do not intend to defend this aspect of your appeal. Please note however that this does not affect the continuation of your appeal against your inclusion on the Children’s Barred List.”
6. On 7 December 2012, Judge Rowland issued directions, stating that the part of the Appellant’s appeal relating to the adults’ barred list could be treated as having lapsed so that the appeal would be treated as solely against the inclusion of the Appellant in the children’s barred list and directing the Respondent to provide the documentary material considered by the ISA when making its decisions. That information was provided on 7 January 2013. It included the information the ISA had been able to obtain from the police and from the children’s services department as well as the documents submitted by the Appellant. The police had provided a print-out from the Police National Computer, which included a list of the Appellant’s convictions and abbreviated police reports relating to her convictions under the 1933 Act, including notes of what the Appellant had said in interview and also what her daughter had said in a video-recorded “achieving best evidence” interview (“ABE interview”). The children’s services department had been less forthcoming, providing – after referring the ISA’s request for information to its lawyers – only a single page in which it said –
“Following your request for information regarding [the appellant] please see … Childrens’ Services involvement with her children, …
23.03.10 - Surrey Childrens’ Services carried out a Joint Investigation Home Visit to the family home in … following a referral. As a result of this Joint Investigation Visit, the children were removed from [their parents’] care by means of a Police Protection Order and placed with Surrey Foster Carers where they have remained to date.
10.10.2010 – Royal Society for the Protection of Animals [sic] obtained prosecutions against [the Appellant] (and [her husband]) for cruelty to animals. Both pleaded guilty to a umber of charges and were banned from keeping dogs or pets for seven years. This ban was later reduced to four years.
15.04.2011 – [The Appellant] was convicted at Guildford Court for Child Neglect.
19.07.2011 – Full Care orders were obtained at Guildford Court, with a Care Plan for adoption.
[The Appellant] has never accepted the Court’s decision to grant Full Care orders on her children.” (Apostrophes as in the original.)
7. On 21 February 2013, Judge Rowland gave permission to appeal, saying –
“1. The Independent Safeguarding Authority appears not to have spelled out the implication of full care orders having been made. One implication is that there must have been a judicial finding that the threshold condition for making a care...
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