KB v Disclosure and Barring Service: [2021] UKUT 325 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Jones on 9 August 2021.
Read the full decision in .
Judicial Summary
The Appellant appealed the decision of 18 June 2019 of the Respondent (the Disclosure and Barring Service or ‘DBS’) to include her name in the Children’s and Adults’ Barred Lists (“CBL” and “ABL”) pursuant to paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”).
The Upper Tribunal dismissed the appeal.
The Appellant made repeated statements regarding harming her own children at a time when she was psychiatrically unwell.
Paragraph 3 and 4 of Schedule 3 to the Act required the Tribunal to consider whether in making the statements it found the Appellant to have made, she engaged in relevant conduct - conduct which endangered a child or was likely to endanger a child (para 4(1)(a)).
The Tribunal was not satisfied that the conduct, the statements made by the Appellant, endangered a child or was likely to endanger a child for the purposes of paragraphs 4(2)(a), (b), (d) or (e). The conduct of making the statements did not, nor was likely, to harm the children, cause the children to be harmed, attempt to harm the children nor incite another to harm the children. There is no evidence that the children were present when the statements were made nor that they could have understood the statements given their young age. She took no further actions consistent with her statements.
Paragraphs 3 and 4 required the Tribunal to focus on the conduct (the making of the statements) and the effect on the children rather than simply whether the Appellant was at risk of harming her children in some way. This requires an objective assessment of the conduct itself (what would be the actus reus in criminal proceedings) rather than requiring an assessment of the precise form of mens rea or mental state behind the conduct (whether that be intent or recklessness to engage in the conduct etc). However, any finding regarding the mental element may well be relevant to the degree of future risk posed and the appropriateness, rationality or proportionality of the DBS including a person on the list.
Nonetheless, the Tribunal was satisfied that in making the statements, the Appellant was engaging in conduct putting Child A at risk of harm.
First the statements evidenced the Appellant’s mental state and behaviour (‘behaviour’ being the title to paragraphs 3 & 4 of schedule 3) which was at risk of causing harm to Child A or both her children (whether that be some form of physical, emotional or psychological harm). This is a matter of objective assessment rather than deciding the Appellant’s subjective desire or intents.
Second in making the statements, the Appellant expressed the risk she was presenting, and further her temporary wish at that time to harm Child A, even though at the same time she may have hoped and desired that the children would be removed from her and even thought she later denied any intent to harm Child A. She could not know whether the children would be immediately or permanently removed from her care at the time she made the statements.
While the statements were of a time limited nature, they were a repeat of similar statements made and then retracted or denied in 2016 and 2017 as recorded on the Adult Risk form while she was still acutely mentally ill.
The Tribunal was satisfied that the correct approach when assessing the proportionality of the barring decision is to decide afresh whether it was proportionate for the Discosure and Barring Service to include the Appellant on the Children’s Barred List and Adult’s Barred List in June 2019. In doing so it considered whether there was an error of law in the DBS’ decision to include the Appellant in the barred lists as at June 2019 on the basis that it was not disproportionate to do so.
Determining proportionality primarily involves determining whether the Appellant posed a continued risk of harm to children and /or vulnerable adults at that time of inclusion on the lists. However, it also involves taking into account the impact of the Appellant on the barring decision and answering the four questions set out in Aguilar Quila. In doing so the Tribunal afforded weight to DBS’ view of risk given its expertise as acknowledged in ISA v SB but the Tribunal decided independently whether there was an error of law in finding it proportionate to include her on the lists.
In assessing whether there was an error of law in relation to proportionality in June 2019, the Tribunal had regard to the material available at the time of the decision and the material which might have been available, because it existed at the time and is now available by the time of the hearing.
The Tribunal also heard evidence in relation to subsequent events, in particular an incident in September 2020 where the Appellant took cocaine suffered psychosis and was admitted to hospital. It also received the section 37 reports of the Children’s Services in September and November 2020 recommending supervised contact with her children. Therefore, its approach to this subsequent evidence was simply as a check against the decision made in June 2019. It was not using hindsight to assess proportionality as at June 2019. However, there would be an element of unreality not to admit evidence and take into account the fact that subsequent events have supported the risk assessment made by the DBS in June 2019.
Nonetheless, the Tribunal was not making a decision as to whether there is an error of law in the Appellant remaining on the list as at the date of hearing in 2021 but only at the time of her inclusion in 2019. There was no such error in the DBS’s decision in 2019.