CNS v Disclosure and Barring Service (Safeguarding)

The Appellant (also referred to as ‘C’) appeals to the Upper Tribunal against the decision of the Respondent (the Disclosure and Barring Service or ‘DBS’) dated 15 July 2022 to include her name on the Children’s Barred List (‘CBL’) pursuant to paragraph 3 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”).

Permission to appeal to the Upper Tribunal (‘UT’) was granted by the Judge on 18 January 2024 in respect of the grounds raised by the Appellant in the grounds of appeal and at that permission hearing. In summary, the grounds of appeal were that each of the two findings that the Appellant committed relevant conduct were based on mistake of facts and there was a mistake of law– the DBS made a disproportionate decision to bar her from working with children.

We held a remote oral hearing of the appeal by CVP video on 22 April 2024. The Appellant appeared and participated in person by giving oral evidence and making submissions. At the start of the hearing, the Appellant chose not to turn her video camera on and only participated orally / auditorily. She relied on the suggestion that having the video turned on for any length of time would cause her anxiety or distress. However, when given the choice as to how she would like to proceed, she then indicated that she would like to turn her camera on. Thereafter, she then stated that she was unable to make the camera work. Finally, when given the further choice as to whether she would like time in order to enable her camera, she chose to proceed by audio only.

We are satisfied that the hearing was conducted in a manner that was procedurally fair and the Appellant was afforded natural justice. We are satisfied that she was fully able to participate throughout the hearing. It is apparent she heard everything – not only did she not suggest there was any problem, but this was evidenced by the fact that she spoke in relation to all questions and interventions from counsel and the Tribunal. She was able to make full submissions and give evidence uninterruptedly and at some length. All other participants were made visible to her throughout.

The Respondent (the DBS) was represented at the hearing by Mr Simon Lewis of counsel. We are grateful to him and the Appellant for the quality of their written and oral submissions.

In broad summary, the background is as follows:

References in square brackets [] are to page numbers of the 222 page bundle of evidence provided by the DBS.

In chronological order, the most notable events that have taken place are as follows:

Outcome of section 47 enquiries [162]: concerns remain in relation to the wellbeing of the Children and a child protection conference planned [160].

Referral to an intervention team [163].

Further “strategy meeting” led by the LA [89].

The School extended C’s suspension and initiated a disciplinary investigation [67], setting out allegations in relation to:

safeguarding concerns regarding the Children, including the Assault; and

a failure to notify the School of related concerns/interventions.

The School’s investigation meeting with C [69].

The School’s investigation report [75].

The School’s disciplinary hearing [72].

Dismissal [72] (C did not appeal that decision [40]).

DBS “important information” letter [18].

DBS “important information” letter “reissued” [24].

DBS “minded to bar” letter [27-32], along with various attachments [33-168].

DBS letter communicating the Decision to C [“the Final Letter”] [169-174] (to be considered alongside the DBS Barring Decision Summary document, which set out more fully the rationale of the DBS decisionmaker [“the Rationale Document”] [175-187].

C’s Notice of Appeal to the UT

UT directions [15] (but not sent out before 18.11.22).

UT directions [207-210].

UT directions (issued on 24.08.23) [211-213].

UT directions (including an adjournment) (issued on 07.12.23) [214-215].

permission to appeal hearing and the issue of UT directions for the appeal (with the UT granting C permission to appeal) (issued on 26.01.24) [216-291].

The hearing of the substantive appeal by video.

The Final Decision Letter from the Respondent dated 15 July 2022 notified the Appellant that it was including her on the Children’s Barred List and stated the following:

The two findings of relevant conduct made by the DBS were as set out above and as:

Although the first finding of relevant conduct referred to April 2021, it appears clear that the Assault was alleged and understood at all times to have occurred in February 2021. No point was taken at the hearing about the timing – while it was a mistake of fact it was not material to the decision and caused the Appellant no unfairness in her ability to understand the decision or pursue her appeal.

As far as appears relevant (in light of the grounds of appeal), the DBS came to the following related/additional conclusions on the balance of probabilities:

DBS went on to conclude C’s conduct amounted to Relevant Conduct within the meaning of the Act, and that, in all the circumstances, it was appropriate and proportionate to include her on the Children’s Barred List.

In her Grounds of Appeal (his “Reasons for Appealing” document) enclosed with her notice of appeal, the Appellant provided grounds of appeal.

The Appellant submits that the barring decision was based on material mistakes of fact or mistakes of law (the decision was irrational and/or disproportionate which amounts to an error of law).

On 18 January 2024 the Appellant was granted permission to appeal in respect of her grounds of appeal dated 15 August 2022 which were as follows:

The Upper Tribunal refined the grounds in relation to the alleged mistakes of fact when granting permission to appeal at the oral permission hearing (OPH) on 18 January 2024.

In relation to the first finding of relevant conduct - Assault/abuse of C’s son - the UT took the view that it was arguable that DBS made a mistake of fact [218]. At the OPH, C maintained/ developed her position that she had acted in self-defence and/or was merely seeking to restrain the Son [217]. The Son, according to C, had been distressed, angry, aggressive; he had, in effect, been in the process of assaulting her, at the material time, and harming himself by hitting himself against the wall and TV. C had, she claimed, been restraining the Son only by holding his arms and one leg and that the injuries to his face were self-inflicted by the Son in his distressed state.

In relation to the second finding of relevant conduct – a failure to inform the School about being subject to a social services plan – the UT also took the view that it was arguable that DBS made a mistake of fact [218]. At the OPH, C maintained/developed her position that C had not failed to disclose or inform the School (as her employer) that there had been a social services intervention [217]. C maintained that she knew that the School was well-aware of that intervention and that the School had been the body which had made the reference to social services in the first place. The School itself had not found this allegation proved in the context of its own disciplinary procedure (it had dismissed her for other reasons).

The DBS relied on written evidence from witnesses and transcripts of interviews contained in the bundle of evidence it filed and served which contained 222 pages. It contained the evidence relied upon in making the barring decision and in defending the appeal.

The witnesses included those from the LA, the School and the relevant medical examiner together with the record of interviews with C, her Son, her daughter and their father. As we note, none of these witnesses gave formal witness statements, oral evidence or were cross examined – their evidence was untested hearsay. This is a matter to take into account when considering the weight it is to be given and its reliability.

The relevant evidence [with paragraph numbers and page numbers in square brackets] is referred to in the discussion section below and we make findings and draw conclusions based upon it.

This was the evidence relied upon by the DBS in making the barring decision and in defending the appeal. The relevant evidence is referred to in the discussion section below and we make findings of fact based upon it and the Appellant’s evidence.

The Appellant likewise relied upon her notice of appeal and the submissions of fact she made at the OPH. She supplemented this with her evidence of fact given orally at the appeal hearing.

The Appellant was cross examined during the hearing and denied the allegations of relevant conduct. It goes without saying that all subsequent written and oral evidence was not available to the DBS when making its barring decision.

Again, we make findings of fact in relation to this evidence in the discussion section below and give our reasons therefor.

In summary, we have come to the conclusion that the Appellant’s oral evidence was not substantially reliable nor credible for the reasons we give within the discussion section.

Despite our findings that the evidence given denying the allegations is not reliable nor credible in relation to the key issues in dispute, we summarise the Appellant’s oral evidence as follows.

In her oral evidence in chief, the Appellant stated as follows.

She accepted there may have been scratches and bruises on her Son after the traumatic events of the incident. He was having a difficult time after her break up with his Father. The Son was being aggressive and violent and he was trying to break items in the house and break items to throw at her. She wanted to make it stop and did not know what to do with his behaviour. He was just unhappy and struggling with the terms of his mother and father splitting up.

During the incident her Son was running to her and punching her and kicking her. She tried stopping him by putting his hands and legs to his side. He tried grabbing ornaments and tried to throw and smash things up. She grabbed him and put his hands to his side. She went to close the door shut away from his sister, grab hold of him and tell him to calm down.

She stated she touched her Son’s arms, wrists and legs at the bottom and top and maybe his shoulders. She was holding him to restrain him – she was trying to get him to calm down. She held him down to stop him being violent and hurting his sister and stop him making things worse. It was not enough - her Son kept getting up and going again and did it a few times more. She was talking to him more and more, telling him to stop and calm down.

Her Son was around 11 years old at the time and as tall as her - quite a big boy - 5ft 5 inches and weighing 9 stone. She was around 5ft 6 inches tall and weighing 10 stone. She cannot remember when she saw scratches and bruises on her Son - she did not see them at the time of the incident.

In her oral evidence in chief, the Appellant stated as follows.

At the time everything happened so quickly (the incident and social services involvement) and she had not been given opportunity to digest what was going on and before she knew anything the workplace and school got rid of her. It was all new to her and there was so much stuff she had to deal with.

She felt like it was unfair and she was in a challenging and difficult situation and did not hide anything. It landed on her and she dealt with it. At the time she was suspended from employment at the School she can remember being dismissed and never being given a chance to speak to someone.

By the time of the interview in April 2021, the School already knew about Social Services involvement and she was not working there by the time. They knew information from Social Services before she knew about it. They had the relevant information and it was awful to speak about and awful to experience. She had to deal with it which was mentally exhausting and depressing.

She was on her own and asking for help and her Son’s behaviour was difficult and nobody wanted to listen. As soon as the incident happened it was her Son’s word against hers and she lost her job and potentially could have lost resident care of her children. There was a lot going on.

She denied the allegation of failure to disclose information or misleading the school. She could not remember it all but she never hid anything intentionally, whether or not she did get things wrong. It upset and angers her that she had so much to deal with.

The Appellant was cross examined by Mr Lewis in relation to all of this evidence. He suggested that both of the findings of relevant conduct were accurate and she had committed them. He put each of the relevant pieces of written evidence to her which was contained in the bundle and suggested her account was neither reliable nor truthful. She denied all the allegations put to her in cross examination.

Nonetheless, we found her denials to be unreliable and lacking credibility for the reasons we give in the discussion section below.

In relation to the proportionality of the barring decision, the Appellant gave the following evidence.

In barring her, the DBS acted unfairly. She loved her job and loved the children in that School and the children were asking when she was coming back and requesting her back. She was absolutely devastated and she never had her own children taken off her. They remained with her in her care to this day.

There was a devastating impact of being barred – mentally – and by not being able to go back to work with the children. It was not a nice feeling and impacts upon children’s lives. It was a hard job teaching but she loved to do it.

It was disproportionate and unreasonable for the DBS to rely upon a child’s story and that was the only evidence against her. Nobody spoke to her and the DBS had no background before making the decision to bar.

The DBS did not speak to her – they had not done right – they should have spoken to her. At the time of the incident, her son was around 11 years old and daughter around 6 years old. She had done nothing wrong - there was an ongoing marital break-up which resulted in her Son’s behaviour. This was understandable due to his distress.

She agreed with everything she had written in the notice of appeal and believed that her appeal should be allowed so that she could engage in regulated activity with children and removed from the barred list.

We address the proportionality of the decision to include the Appellant on the CBL in the discussion section below.

The full relevant statutory provisions and authorities are set out in the Appendix to this decision. Therefore, we only draw attention to the most relevant law at this stage.

There are, broadly speaking, three separate ways under Part 1 of Schedule 3 to the Act in which a person may be included in the CBL, which can generally be described as: (a) Autobar (for Automatic Barring Offences), (b) Autobar (for Automatic Inclusion Offences) and (c) Discretionary or non-automatic barring.

The third category applies in this case. The appeal concerns discretionary barring where a person does not meet the prescribed criteria (has not been convicted of specified criminal offences), but paragraph 3 of Schedule 3 to the Act applies.

Paragraph 3 of Schedule 3 to the Act, sets out the provisions in relation to “relevant conduct”. It provides that, following an opportunity for and consideration of representations, DBS “must” include a person on the List if: (i) it is satisfied that they have “engaged in relevant conduct”; (ii) it has reason to believe that they have been (or might in future) be “engaged in regulated activity relating to children”; and (iii) it is satisfied that it is “appropriate” to include them. Under paragraph 3(3) of Schedule 3 the DBS must include the person in the children’s barred list if:

it is satisfied that the person has engaged in relevant conduct, and

it is satisfied that it is appropriate to include the person in the list.

An activity is a “regulated activity relating to children” for the purposes of paragraph 2(8)(b) of Schedule 3 if it falls within one of the subparagraphs in paragraph 1 of Schedule 4 to the Act; that provision broadly defines “regulated activity” and includes, in relation to children, “any form of teaching, training or instruction of children, unless the teaching, training or instruction is merely incidental to teaching, training or instruction of persons who are not children”.

‘Relevant conduct’ is defined under paragraph 4 of Schedule 3 to the Act as set out in the Appendix. Paragraph 4(1) of the same, sets out the meaning of “relevant conduct”. It includes: (i) “conduct which endangers a child or is likely to endanger a child”; (ii) “conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him”. Paragraph 4(2) of the same, provides that conduct “endangers a child if” among other things it: (i) “harms” a child; or (ii) puts a child “at risk of harm”.

Section 4 of the Act provides:

An individual who is included in a barred list may appeal to the [ Upper]1 Tribunal against– [...]

a decision under [paragraph 2, 3, 5, 8, 9 or 11]3 of [Schedule 3]4 to include him in the list;

a decision under [paragraph 17, 18 or 18A]5 of that Schedule not to remove him from the list.

An appeal under subsection (1) may be made only on the grounds that [DBS] has made a mistake–

on any point of law;

If the [ Upper] Tribunal finds that [DBS] has made such a mistake it must–

direct [DBS] to remove the person from the list, or

remit the matter to [DBS] for a new decision.

If the [ Upper] Tribunal remits a matter to [DBS]6 under subsection (6)(b)–

As underlined above, the Applicant may appeal against the barring on the ground that the DBS has made a mistake:

However, for these purposes “the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact” (section 4(3))

The only issue in this appeal therefore is whether there was a material mistake of law or fact in including the Applicant on the CBL.

In Khakh v Independent Safeguarding Authority [2013] EWCA Civ. 1341 the Court of Appeal stated:

At para 23 the Court said of the DBS duty to give reasons:

Despite the exclusion of ‘appropriateness’ from the Upper Tribunal’s appellate jurisdiction, it is “empowered to determine proportionality” - B v Independent Safeguarding Authority [2012] EWCA Civ. 977 - see the appendix for further details.

In CM v DBS (2015) UKUT 707 the following proposition was cited with approval:

The jurisdiction for the Tribunal to consider a challenge based on a mistake of fact was considered in PF v DBS UKUT [2020] 256 AAC where a three-judge panel stated at [51]:

The Court of Appeal has further considered the mistake of fact jurisdiction recently in DBS v RI [2024] EWCA Civ. 95 and confirmed that PF represents the correct interpretation of the UT’s fact-finding jurisdiction at [28]-[29]:

PF should also be read in the light of the judgment in DBS v AB [2021] EWCA Civ 1575 where Lewis LJ, for the Court of Appeal, stated at [43] and [55]:

Therefore, the UT has a full jurisdiction to identify and make findings on the evidence heard as to whether there has been a mistake of fact. An assessment of risk however is generally speaking for the DBS, as the expert assessor of risk, and what is and is not a fact should be considered with care.

Only if a risk assessment is made by the DBS in error of fact, eg. based on an incorrect fact, or made in error of law, for example, that a risk assessment relied upon by the DBS is irrational (one that no properly directed decision maker could reasonably have arrived at on the evidence before it), can the barring decision on which it is based be disturbed on appeal.

Thus, the role of the Upper Tribunal on an appeal is to consider if the DBS has made a mistake on any point of law or in any finding of fact. It cannot consider the appropriateness of listing (see section 4(3) of the Act). That is, unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity with children or vulnerable adults, is a matter for the DBS.

If the Upper Tribunal finds that DBS made a mistake of law or fact, as described in section 4(2), section 4(6) requires the Upper Tribunal to either:

direct DBS to remove the person from the list, or

remit the matter to DBS for a new decision.

After AB the usual order will be remission back to the DBS unless no other decision than removal is possible on the facts found.

The Appellant gave evidence and made oral submissions in support of her appeal which we have incorporated and addressed above and below.

Mr Lewis made submissions on behalf of the DBS in resisting the appeal, many of which we agree with and adopt in our reasoning below.

We have examined all the evidence in the case, both that which was before the DBS and that submitted by the Appellant as part of her appeal (which was not available to the DBS at the time it made its Decision). We make findings of fact as set out below.

The evidence that was before the DBS when it made its Decision did not include any factual and legal representations made on behalf of the Appellant. The factual representations made during the hearing, denying the allegations, were in similar terms to the notice of appeal dated August 2022 (but more detailed).

In light of these, we consider whether the DBS made mistakes of fact in accordance with the approach set out in PF v DBS. The burden of proof remained on the DBS when establishing the facts and making its findings of relevant conduct in its barring decision. Thereafter on the appeal to the UT, the burden was on the Appellant to establish a mistake of fact (see PF at [51]):

Furthermore, ‘In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose…. In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it...The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise.’

We note that the Appellant attended the hearing of the appeal, gave evidence and was cross examined. This is in contrast to the DBS’s witnesses who did not. Their evidence was written and untested, it consisted of typewritten notes of answers given to question in interview.

While potentially less weight is to be given to the written evidence of those DBS witnesses, and their reliability and credibility has been impugned by the Appellant, we have had to balance this against our assessment of the Appellant’s reliability and credibility having heard her give oral evidence.

We are not satisfied that the Appellant was a reliable and credible witness. We set out our reasoning for this in the section below when addressing Grounds 1 and 2 (mistake of fact in relation to the findings of relevant conduct).

In essence, we are satisfied that the Appellant’s evidence is inconsistent with the contemporaneous evidence and a number of witnesses who gave evidence against her. Her written and oral evidence to the Tribunal was also internally inconsistent and contradicted the earlier accounts given to the school, her employer and the LA.

Finally, we found that the Appellant’s answers in cross examination tended towards a bare denial and the assertion that all the witnesses the DBS relied upon were wrong. The Appellant maintained her behaviour was satisfactory at all times - this demonstrated a lack of insight or an inability to make any reasonable concessions. The Appellant’s explanation for the injuries sustained by her son, which she has relied on since August 2022, was implausible and inherently unlikely – it also deviated and was inconsistent with the more contemporaneous accounts she gave to the School and LA.

The finding that the Appellant Assaulted / abused her son physically was the first finding of relevant conduct by the DBS.

The key point, advanced by C, it would seem, is that C did not, in fact, “assault” the Son: all she did was take steps which were no-more-than-reasonable) to restrain him, in light of his own aggressive behaviour towards her. Any relevant injury caused to the Son, by her, was not caused by any intentional assault.

We are not satisfied that DBS made a mistake in finding that C had indeed carried out an assault on the Son. We, like the DBS are satisfied “on the balance of probabilities” that the Appellant assaulted the son in February 2021 causing him the injuries as alleged.

The fact that there was no action by the police and no criminal proceedings were instituted reflects the markedly higher standard of proof in those proceedings and the criminal prosecution is not (or not sufficiently) relevant.

There are a number of reasons why we reject the Appellant’s evidence.

First, there was/is the important evidence relating to the Medical Examination of the son [158], carried out, just a few days after the Assault, by a suitably-qualified medical practitioner. The following injuries were noted and recorded, following the Medical Examination [158]:

The conclusion of the Medical Examiner was clear:

The injuries were in “areas which do not usually get bruised accidentally”.

Second, there was/is the relatively detailed account of the Assault given by the Son himself given to the LA [150]-[151], taken at or close to the time, which appears to be materially consistent with the evidence of injury to his body. Related to that, there was/is evidence that the Son was generally relatively well-behaved at the School and described as “fairly placid” [76] [93]. We are not satisfied that the son was mistaken or lying or that he made up his account.

Third, there was/is the record of the general account by C [150], provided close to the time, and the views about that account from those (trained professionals on behalf of the LA) who heard it along with associated observations. Relevant matters include:

In addition, it was recorded that C (unlike the Son) was not observed to have had any injuries [151]. This undermines any account that she was acting in self-defence in restraining him or to protect him or any person from harm.

Fourth, there was/is the fact that the LA, having considered all the material before it, decided that it was necessary to put in place a safety plan, a child in need plan, and a child protection plan (and/or similar plans), for both of the Children, and, in the case of the Son, specifically due to the risk of physical harm from C [135]. Further, the evidence is that the police had (at least initially) logged the Assault as an “assault” [92].

Fifth, we note the evidence about C’s apparent general approach to disciplining children, from the earlier set of disciplinary proceedings brought by the School against C (for which C was suspended but not, in the end, subjected to any serious sanction). In the investigation meeting, C is recorded as having [127]: (a) complained that “School do not discipline naughty children”; and (b) moreover, said (with emphasis added): “I have told [the Son] that he needs to hit back where a child hits him and it’s not an accident”.

We are satisfied on the balance of probabilities that – hitting a child when confronted with some form of attack from them – is exactly what C would go on to do with her own 11 year old son, a couple of years later in the privacy of her own home.

Sixth, we reject the oral evidence the Appellant gave during the hearing as unreliable and not credible. There has always been a lack of detail and a lack of plausibility in the account put forward by C. Even now, in the context of the Appeal, C has provided relatively few details (and little persuasive or supporting evidence).

During her evidence C was less than open and candid, at best, in a number of situations, about other (but related) significant matters: e.g. in relation to the Boyfriend and her relationship with him during the initial visit; and in relation to her representations to the School about there being no or no significant ongoing concerns/matters relating to the involvement of social services etc [69]). Further, there is the simple fact that C did not take the Son into school the day after the Assault (and a lack of evidence of an alternative/ innocent reason for that non-attendance, along with the Son’s account that “he wasn’t allowed to go in to school even though he wanted to”) [107, 105].

Seventh: any account by the Daughter that C did not assault the Son because she was only acting in self-defence (which is said to support C’s account of the Assault) needed and needs to be considered with due caution. Apart from anything else, she would, it seems, have been only 6 years old at the time of the incident. There has also been an allegation that C had sought to pressurise the Daughter (and the Son), in relation to other matters, to act in ways that assist C and were not open and honest [154, 158, 107].

In all the circumstances, we are satisfied that:

We are also satisfied that the associated absence of insight, remorse, understanding by C supports a finding that she remains at risk of causing harm to children.

There was no mistake of fact by DBS in relation to such an assessment of risk; particularly in the context where C had not provided any representations prior to barring (which is where such matters would generally be set out). Moreover, C denied any assault and/or refused to accept any culpability (and has continued to do so). No evidence was provided that C had any meaningful regard, insight, understanding, remorse, etc, into the harmful impact of the Assault on the Son. A similar conclusion was reached, in relation C lacking “insight”, by the chair of the LA’s meeting [93].

We note the persistent concerns (well into summer of 2021) regarding C’s insight/remediation: that C does “not appear to be taking on board the concerns around [the Children’s] emotional well being” [141]; that C “does not appear to be working to the safety plan” [142]. It is also noteworthy that C was recorded to have refused to undertake a course in “non-violent resistance” [143]; and that the professional view was there “remains a significant risk of further physical abuse” [143].

We dismiss ground 1. There was no material mistake of fact in the DBS’s first finding of relevant conduct – the assault is established on the balance of probabilities.

The DBS’s second finding of relevant conduct was that:

Taken in the round: Mr Lewis submitted there was no material mistake of fact by DBS in respect of this conclusion.

The key evidence is the investigatory interview with the School on 23 April 2021 (as recorded by signed notes [69-71]). We accept the notes are a reliable record of the interview as signed by C herself contemporaneously.

We consider that C presented a picture to the School (as her employer, and in the serious and formal context of a disciplinary investigation into highly-relevant matters), about the involvement of social services and related matters, which was inaccurate and misleading.

Among other things, C is recorded as having stated/indicated:

“Obviously Social Services got involved and obviously [the Son] went for a medical and nothing came of it.” [69]

When asked again about the outcome of the Medical Examination: “No, nothing came of it. It was a case of being down to me and [the Son] having differences and that was it really. Nothing else was further [sic].” [69]

When asked if, following the Medical Examination, any professionals had fed back to her: “Social Worker, who said not a lot really… She was happy with everything and to be quite honest Social’s not been involved all that much… No one has done anything… I think I am the professional here.” [69-70]

When asked specifically about whether the Children “have been subject to a child protection plan or section 47”: “No they are not” [70].

When asked whether at any point a social worker had “suggested” the Children are being subject to a child protection plan: “No” [70].

When asked if there was anything else C wished to say in relation to “allegation 2”: “No, not really” [71].

At the time of that meeting on 23 April 2021, we are satisfied that it is likely C knew that the picture she painted, about social services involvement (past, current, or future) in particular, was inaccurate and misleading, even if there is/was some scope for confusion regarding the precise terms involved (e.g. about particular types of plans, assessments, interventions, etc).

Among other things, there is evidence of the following having all occurred in the run up to the investigation meeting:

There was the visit on 05.02.21 by agents of the LA [150]. Following which, the Children went to live with the Father and C was not allowed unsupervised contact with the Children (at least initially), as part of a “safety plan” made on the same day [151].

The Son appears to have been living with the father (and grandparents) for a period of time - at least for a week after the incident in February 2021 [113-114, 107].

Section 47 enquiries commenced on or around 07.02.21, with the Medical Examination on 08.02.21 [162].

There was the LA “strategy meeting” on 07/08.02.21 [149, 151].

The referral to social services, according to the evidence, came via NSPCC [150] [92].

If nothing else, we are satisfied that it must have been clear to C, at that time of the interview on 23 April 2021, that there was an ongoing interest and involvement from social services in relation to the children and C’s role as their parent. We consider that C was under an obligation to convey that, in some reasonably accurate and fair way, to her employer at the interview on 23 April 2021; that she failed to do so. That was a culpable omission, designed to “cover up” the seriousness of the situation and its ongoing nature, in order to try to protect (as she saw it) her own interests in avoiding a sanction and/or keeping her job.

Nonetheless, we do find that there was a material mistake of fact in relation in to the second finding of relevant conduct. We are not satisfied of the specific finding on the balance of probabilities that:

We are not satisfied that there was a failure to inform the school prior to the interview in the particular manner alleged in the decision letter relating to the period 7 to 15 February 2021. Rather we are satisfied that she misled her employer about the general extent of social services involvement with her children when specifically asked about it on 23 April 2021.

We accept that the reason that the Appellant did not inform the school of the intervention in February 2021 as alleged was because she believed they were already aware of this involvement of social services following the intervention in February 2021. Indeed, the School did not uphold “allegation 2” in a decision letter dated 26 May 2021. The School accepted that it was already aware of the Social Services intervention and the Appellant reasonably did not believe she needed to do anything more to inform it of this.

Allegation 2 relied upon by the School was a decision looking backwards at what C had (or had not) disclosed previously to the School by the time of the disciplinary hearing on 25 May 2021– see [73]:

The DBS finding of relevant conduct fails to make clear that it is focused on the failures to disclose matters properly, to the School as C’s employer, within the Investigation Meeting on 23 April 2021 itself as opposed to at any time before or after. The finding instead focuses on the specific intervention in February of which the School were already aware and for which it was reasonable for the Appellant not to need to inform them. The section 47 enquiries started on 7 February 2021 and the Appellant was suspended from school on 9 February 2021.

The specific finding in the DBS barring decision also involves mistakes of fact because it is unclear what level of intervention from Social Services the Appellant or the children were subject to at the time of the interview on 23 April 2021 or before. It is clear that the Appellant herself was not subject to any plan (the allegation is that ‘you were subject to a social services plan’) and this is a mistake of fact.

The extent of social services intervention is not clear but it appears that the children were subject to a section 47 proceedings for eight days between 7 and 15 February 2021, which was then downgraded to a child in need plan from 7 April 2021. It only became a child protection plan in May 2021, after the interview on 23 April 2021. The result is that there was no child in need or protection plan in place in February that the Appellant could have failed to disclose and no child protection plan in place at the time of interview in April 2021.

Nonetheless: even though there was a mistake of fact in relation to the specific finding of relevant conduct relied upon by the DBS, we have still found that C failed to inform/disclose to the School as to the extent of social services involvement with her children and the developments thereafter and misled the School at the interview on 23 April 2021.

There is no need to go on to consider whether the finding of fact we have made, if had it been relied upon by the DBS - rather than the second finding of relevant conduct as actually made – would amount to ‘relevant conduct’ as a matter of law for the purposes of para 4 of Schedule 3 to the Act. We make no determinative finding as to whether the conduct as found by us amounts to conduct which endangered a child or was likely to endanger a child or if repeated, would endanger a child (harm a child or put them at a risk of harm). However, we can see the argument that failing to inform and misleading an employer of school as to the extent of social services’ involvement with one’s own child or any person’s child might, if repeated, put a child (whether one’s child or any child under one’s care at school) at risk of harm. On one view, it might be seen as a standard safeguarding requirement.

Furthermore, the Appellant’s failure to disclose relevant information to the school in interview on 23 April 2021 and attempt to mislead them was a matter that the DBS could and should have taken into account and further informed the decision to bar.

However, and in any event, while we are satisfied that there was a material mistake of fact in relation to the second finding of relevant conduct made by the DBS, we are satisfied that it is inevitable that the same outcome would have been reached to include the Appellant on the CBL purely based on the Assault (the first finding of relevant conduct) and the concerns associated with it.

While there were material mistakes of fact in relation to the second finding of relevant conduct, these were not material to the ultimate barring decision – it is inevitable that the DBS would have made the same decision in light of the factual findings we have made.

We now address the written grounds of appeal set out in the Appellant’s notice of appeal.

The DBS did not make any material error in barring the Appellant despite the fact that the Children had “remained” in C’s care. In fact, there were times when they, or the Son, had not in been in her direct care, being with the Father and/or Grandparents for a week in February 2021. And there is ample evidence that professionals have been markedly concerned about C’s ability to safely care for the Children. In any event, the law relating to whether parents can have unsupervised contact (“private law proceedings”), or indeed whether children should be taken into local authority care (“public law proceedings”), has a different purpose and procedures to the relevant law relating to safeguarding vulnerable groups in society under the Act.

The School was notified of “the incident”, at the time (and suspended C, before going on to dismiss). The School was made aware of various concerns (because, mainly it would seem, the Children happened to attend the School as pupils and/or the School employed C) – by others mainly. Nonetheless that is to miss the point of the relevant failure by C at the interview in April 2021 to disclose Social Services’ involvement with the Children (as set out above).

Although the Assault was, in a literal sense, a single act, it was not, when considered fairly in context, an “isolated incident”. There were/are a number of relevant concerns/incidents, spanning a wider period of time (and including emotional harm to both the Children). It appears that there has, on the evidence (including the evidence of an admission by C herself), and despite a claim to the contrary in the Grounds [5], been at least one further relevant incident regarding physical harm. This was a hit to the Son’s back which he reported on 23 March 2021 which C initially denied and then appears to have admitted – see [110]-[113].

The DBS did not make a finding about whether C was or is “passionate” about working with young people or children.

There is nothing in this ground of appeal. While it is always possible for decision-making bodies such as DBS to have more information, it had sufficient material/information to make the decision(s) it was required to make. In particular: the DBS had ample information before it, at the time of the Decision, that C’s position, in response to the allegation she had assaulted the Son, had been that any injury caused to the Son by her was the result of her taking steps to “restrain” him (in light of his aggression) and/or “protect” others from harm. That had been C’s position and the DBS decision-maker would have been aware of that claim/assertion/ defence.

Further, the DBS cannot properly be blamed for C having not provided any representations for it to consider in response to its “minded to bar” letter and the information attached to it. That was C’s opportunity to set out her case “fully”, provide any additional relevant documentary material, and emphasise any particular matters. Moreover, only limited information would appear to have been provided by C in the Appeal; notwithstanding the efforts of the UT to provide opportunities (both before and after the OPH). It was unhelpful, for example, that C did not provide a witness statement, despite being strongly encouraged by the UT to do so in the directions [218 (e.g. para 7-8)] following the OPH – although we draw no adverse inference against her, given she is not legally represented.

We are satisfied that the first finding of fact by the DBS, the assault, is established and amounted to Relevant Conduct within the broad definition permitted by the Act.

Even, taking into account the mistakes of fact in relation to the second finding of relevant conduct, it was not a “perverse” decision by DBS to have included the Appellant on the CBL. There is a high bar for perversity/irrationality challenges to barring decisions and we are satisfied that the decision to bar was neither perverse nor irrational but one the DBS was entitled to reach. Further, we are satisfied it was inevitable that the same decision would have been reached based upon the first finding of relevant conduct alone. It is also supported by the findings we have made about C misleading her former employer about social services’ intervention concerning her children.

The decision that it was “appropriate” in all the circumstances to bar C is outside our jurisdiction to examine but we will always need to consider the proportionality of any barring decision.

In summary, questions of the proportionality of DBS’s decisions to include individuals on the barred lists should be examined applying the tests laid down by Lord Wilson in R (Aguilar Quila) v Secretary of Stage for the Home Department [2012] 1 AC 621 at para 45:

are they no more than are necessary to accomplish it?

In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Authority v SB [2012] EWCA Civ 977 at [17] as set out above).

We are satisfied that each of questions a)-d) should be answered in favour of barring.

On a reasonable and objective view, we are satisfied that the DBS was entitled to conclude that it was appropriate and reasonably necessary to bar C in order to achieve its (important and) legitimate safeguarding aims. The DBS expressly carried out the “balancing act” exercise required. We are satisfied that the DBS was entitled to consider that the Appellant presented a risk of harm to children at the time of the decision. Her lack of reliability, insight and acceptance at the appeal hearing regarding the incident with her son confirmed that the risk she posed of repeating similar acts remained ongoing at the time of the barring decision. Barring was therefore a proportionate decision with regard to that risk.

We are satisfied that the DBS was entitled to conclude that C, on the evidence available at the time and now heard, was an individual unsuited, at the time of the Decision, to be trusted to work with children in regulated activity.

The DBS also expressly had regard to the adverse impact that a barring decision would or may have on C’s Article 8 rights to private and family life– in particular the impact on her employment opportunities to work with children. It correctly concluded that no other measures were in place sufficient to adequately safeguard children from C participating in regulated activity and committing further acts of misconduct/neglect etc.

While it might in principle be possible for C to change her attitude/ approach, and/or to control her emotions/impulses, etc, to the extent that she might be regarded at some point in the future as a tolerably low risk, C had/has not demonstrated that she has the necessary insight or tools to do so at the time of the barring decision. Paragraphs 18 and 18A of Schedule 3 to the Act allow for reviews of the barring decision to be conducted if fresh evidence comes to light and is presented by the Appellant or on the expiry of the minimum barring period in this case.

Although, we have found that there were material mistakes of fact in relation to the second finding of relevant conduct, given the seriousness of the first finding that has been proved not to contain any mistake, it is inevitable that the DBS would have made the same decision to bar the Appellant from working with children. The mistaken finding was not material to the ultimate decision – it is inevitable that the DBS would have decided it appropriate and proportionate to bar the Appellant based on the established finding of relevant conduct.

As noted above, the issue of whether it was “appropriate”, in such circumstances, to place C on the List is beyond the jurisdiction of the UT, unless the same was either irrational or disproportionate. We are satisfied that the Appellant has not established that barring was either irrational nor disproportionate for the reasons we set out above.

We are therefore satisfied that the DBS did not make mistakes of fact or mistakes of law material to the barring decision on 15 July 2022 to include the Appellant on the CBL.

For the reasons set out above, the Appellant’s appeal should be dismissed.

We conclude for the purposes of section 4(5) of the Act that there were no mistakes of fact nor mistakes of law material to the ultimate DBS decision to include the Appellant on the CBL.

The Decision of the DBS to include the Appellant on the CBL is confirmed.