JI v Disclosure and Barring Service

The first part of the first permitted ground of appeal concerns JI’s motivations and intentions in taking the actions she did in the course of the incident. It seems to us, on the evidence, that JI’s motivations and intentions were quite straightforward: she was trying to deal with a two-year-old running around in a disruptive manner (holding cutlery, by JI’s account, which we are prepared to accept) – and did so by placing the child in a highchair. We note that placing PK in a highchair was not, primarily, to assist in her having lunch; it was, primarily, a means of stopping the two-year-old running around disruptively. When the child continued to behave disruptively – now, by “screaming” (although not in a distressed way), JI dealt with this disruptiveness by picking up the highchair with PK in it, and putting her outside the room, exposed to the elements, in the hope that this would stop her behaving this way. We accept that JI’s primary motivation was not to “punish” PK; her primary motivation was to try to get PK to stop being disruptive.

Having made the findings immediately above, we do not find that they indicate any material mistake in DBS’s findings of fact: specifically, they are consistent with DBS’s core factual findings that JI acted inappropriately when:

We acknowledge the passage in DBS’s “barring decision process” document in which DBS stated that the evidence suggested that JI was attempting to punish PK for her challenging behaviour; we do consider this mistaken, insofar as it described JI’s primary motivations; however, given that (1) this finding did not make its way into DBS’s core factual findings, and (2) the finding is not repeated in the section immediately following, which records DBS’s evaluation of the evidence post representations, we find that this was not a factual finding that was material to DBS’s decision.

The second part of the first permitted ground of appeal concerns the school’s policies (formal and informal) as to putting kindergarten children in highchairs. The key point here is whether the school sanctioned, formally or informally, using highchairs as a way of stopping children in the kindergarten being disruptive (such as running around with cutlery in their hands). We find that it did not. It is clear enough from the ‘timetable’ document that the highchairs were to be used at lunchtime as an aid to children eating, if necessary. It was not a sanction for generally using highchairs as a method of stopping disruptive two-year-olds running around. We are inclined to believe JI when she says there were occasions when she saw other members of staff putting children in highchairs; but this seems to us consistent with what is said in the ‘timetable’ document about using highchairs, at lunchtime, to aid children eating, if necessary. In our view, JI was doing something different from this: she was using the highchair primarily to stop the child running around and being disruptive.

Having made the findings immediately above, we do not find that they indicate any material mistake in DBS’s findings of fact: specifically, they are consistent with those of DBS’s core factual findings cited in paragraph 14 above.

The third part of the first permitted ground of appeal concerns the precise words (and the tone and context of those words) used when JI said something to PK about the weather. The source for DBS’s core factual finding that JI told PK "it’s a bit wet and cold outside isn’t it?”, is the notes from a meeting with PM – the assistant in the kindergarten and the only witness who was not a child in the kindergarten – on 21 October 2020, the day after the incident. We find it probable that these words were said as reported by PM; and, based on the signed notes of interviews with JI on 26 and 28 October 2020, the context was that it started to rain lightly just before JI brought PK back inside. We do not, however, find that the words were said with malice or cruelty; and so, in our view, they are not materially different from JI’s own account (according to notes of the 28 October 2020 interview) of what was said (roughly, as she could not remember the exact wording), being “something along the lines of, oh, dear, it’s raining.” Whilst the tone was not vindictive or cruel, it was clearly a purpose of the words (as, indeed, it was a purpose of putting PK outside in the first place) to encourage and incentivise PK to stop being disruptive, so as to avoid the ensuing negative consequences (like being put outside in a highchair).

Having made the findings immediately above, we do not find that they indicate any material mistake in DBS’s findings of fact: specifically, they are consistent with DBS’s core factual finding that JI acted inappropriately in telling PK “it’s a bit wet and cold outside isn’t it”. The reason we find no mistake in DBS finding that JI acted inappropriately in saying this is not that JI’s intentions were cruel, as such, but rather that the words were part and parcel of the whole exercise of placing a two year old out of doors, strapped in a highchair, as a response to her behaving in a disruptive manner: DBS made no mistake in finding this exercise to be inappropriate, and it follows, in our view, that it was no mistake to find that these words, which underlined to the child the (unwelcome) consequences of that exercise (and so, of her being disruptive), were also inappropriate.

The second permitted ground concerned whether DBS’s decision, to bar JI, was disproportionate when considered in the context of all relevant and accurate facts. In terms of what those facts were, as at the time of DBS’s decision (which we consider the correct time at which to adjudge whether DBS’s decision was proportionate or not) we would include

The parameters of the law here are relatively settled: a disproportionate decision is a mistake on a point of law; but DBS’s decision as to the appropriateness of including someone in a barred list is not a question of law. The main authority put before us on the subject, B v ISA (RNC intervening) 2013 1 WLR 308, [2012] EWCA Civ 977, focused on the third and fourth of the classic questions arising in assessing proportionality: (a) the measure being no more than is necessary to accomplish the legislative object (here, safeguarding children and vulnerable adults) and (b) does the measure strike a fair balance between the rights of the individual and the interests of the community?; the case described (at [16]) the “requisite approach” as requiring “the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgement of a person with responsibility for a given subject matter and access to special sources of knowledge and advice”. The judgement there noted “the need to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation”. It also said, at [24], that public confidence (in safeguarding children and vulnerable adults) “must be placed in the scales” and “will always be a material consideration”.

Bearing in mind that inclusion in the children’s barred list is the tool at DBS’s disposal to deal with safeguarding risks to children, the essential exercise is to weigh up the adverse consequences to JI of her being included in the children’s barred list, against the safeguarding risks of her working with children. DBS’s opinion was that the safeguarding risks were material, principally because of what DBS perceived as JI’s poor problem solving and coping skills; DBS was also concerned, when making its decision, about JI’s not seeing a connection between her mental health difficulties and her actions on the day in question (JI took this position in the detailed letter she wrote to DBS on 20 September 2021, shortly before DBS’s decision). Given that assessing risk to safeguarding children is DBS’s core expertise, we are inclined to give DBS’s views on this significant weight in the balancing exercise; and, together with the public interest in safeguarding children, in our view that risk fairly outweighed, at the time of DBS’s decision, the personal detriment to JI, in not being able to pursue her desired career in working with children. We conclude that DBS did not make a mistake on a point of law, by making a disproportionate decision.

The permitted grounds of appeal have not been made out; DBS’s decision involved no mistake either in a factual finding on which it was based, or on a point of law. DBS’s decision is accordingly confirmed.