[2023] UKUT 275 (AAC)

Schedule 3 to the 2006 Act applies for the purposes of DBS determining whether an individual is included in either or both Barred Lists.

By section 59 of the 2006 Act “child” means a person who has not attained the age of 18.

By section 60 of the 2006 Act, a vulnerable adult means any adult to whom an activity which is a regulated activity relating to vulnerable adults by virtue of any paragraph of paragraph 7(1) of Schedule 4 is provided.

Under Section 3(2)(a) of the 2006 Act a person is barred from “regulated activity” relating to children if they are included in the children’s barred list. Under Section 3(3)(a) a person is barred from “regulated activity” relating to vulnerable adults if they are included in the adults’ barred list.

MM has been included by the DBS on the Barred Lists pursuant to Schedule 3, Part 1, paragraph 3 of the SVGA (which relates to children and is headed “Behaviour”) and Schedule 3, Part 2, paragraph 9 (the equivalent provision relating to vulnerable adults, which is also headed “Behaviour”).

Paragraph 3 of Part 1 of Schedule 3 to the 2006 Act provides:

“3.

(1) This paragraph applies to a person if –

(a)

it appears to DBS that the person—

(i)

has (at any time) engaged in relevant conduct, and

(ii)

is or has been, or might in future be, engaged in regulated activity relating to children, and

(b)

DBS proposes to include him in the children’s barred list.

(2)

DBS must give the person the opportunity to make representations as to why he should not be included in the children’s barred list.

(3)

DBS must include the person in the children’s barred list if —

(a)

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

(aa) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and

(b)

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

...”

By section 5(1) of the 2006 Act, a reference to regulated activity relating to children must be construed in accordance with Part 1 of Schedule 4. Regulated activity relating to children includes any form of care or supervision of children (paragraph 2(1)(b) of Schedule 4), and any form of advice or guidance provided wholly or mainly for children (paragraph 2(1)(c) of Schedule 4) carried out frequently by the same person (paragraph 1(1)(b) of Schedule 4).

“Relevant conduct” in relation to children is explained in paragraph 4 of Part 1 of Schedule 3 to the 2006 Act as follows:

“4.

(1) For the purses of paragraph 3 relevant conduct is –

(a)

conduct which endangers a child or is likely to endanger a child;

(b)

conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;

(c)

conduct involving sexual material relating to children (including possession of such material);

(d)

conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to DBS that the conduct is inappropriate;

(e)

conduct of a sexual nature involving a child, if it appears to DBS that the conduct is inappropriate.

(2)

A person’s conduct endangers a child if he –

(a)

harms a child,

(b)

causes a child to be harmed,

(c)

puts a child at risk of harm,

(d)

attempts to harm a child, or

(e)

incites another to harm a child.

…”

The DBS have also included MM on the Adults’ Barred List pursuant to paragraph 9 of Part 2 of Schedule 3 to the 2006 Act. That paragraph provides:

“9.

(1) This paragraph applies to a person if-

(a)

it appears to DBS that the person—

(i)

has (at any time) engaged in relevant conduct, and

(j)

is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and

(b)

DBS proposes to include him in the adults’ barred list.

(2)

DBS must give the person the opportunity to make representations as to why he should not be included in the adults’ barred list.

(3)

DBS must include the person in the adults’ barred list if-

(a)

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

(aa)

it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and

(b)

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

By section 5(2) of the 2006 Act, a reference to regulated activity relating to vulnerable adults must be construed in accordance with Part 2 of Schedule 4. By section 60 of the 2006 Act, a vulnerable adult means any adult to whom an activity which is a regulated activity relating to vulnerable adults by virtue of any paragraph of paragraph 7(1) of Schedule 4 is provided.

“Relevant conduct” in relation to vulnerable adults is explained in paragraph 10 of Part 2 of Schedule 3 to the 2006 Act as follows:

“10.

(1) For the purses of paragraph 9 relevant conduct is –

(f)

conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;

(g)

conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;

(h)

conduct involving sexual material relating to children (including possession of such material);

(i)

conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to DBS that the conduct is inappropriate;

(j)

conduct of a sexual nature involving a vulnerable adult, if it appears to DBS that the conduct is inappropriate.

(2)

A person’s conduct endangers a vulnerable adult if he –

(f)

harms a vulnerable adult,

(g)

causes a vulnerable adult to be harmed,

(h)

puts a vulnerable adult at risk of harm,

(i)

attempts to harm a vulnerable adult, or

(j)

incites another to harm a vulnerable adult.

…”