[2024] UKUT 85 (AAC)

The Barring Decision was made on the basis that:

The explanation that the DBS gave for the Barring Decision in its ‘Final Decision Letter’ was:

“How we reached this decision

Your representations did not challenge the findings made by us. We are now satisfied these allegations are proven on the balance of probabilities:

•

You, whilst employed as a teacher, entered into a relationship with [Pupil A], a year 11 pupil.

Having considered of [sic] all the information available to it, the DBS is satisfied that you have engaged in relevant conduct in relation to children, specifically inappropriate conduct of a sexual nature involving a child.

We are of the view that you, whilst employed as a teacher, entered into a relationship with [Pupil A], a year 11 pupil. The DBS hold concerns that you hold an exploitative attitude in that you breached a position of trust as a teacher to contact a student and form a personal relationship and it is reasonable to infer that you did so for your own gratification. We are further satisfied that you hold a significant sexual interest in teenage girls in that you have engaged in sexual activity with a 16 year old pupil by kissing her on 4 occasions. You have not recognised the harm that your actions have caused and have acted in a way that any reasonable person would deem irresponsible. Your actions have caused harm to the child in that she would cry when with her mum following the ‘relationship’ being discovered. The allegation was raised by [Father A] following a change in his daughters [sic] behaviour, he also reported a feeling of unease following the interaction at Webley [sic] stadium. There is nothing that would suggest that [Father A] had anything to gain by reporting this matter and the only reason that can be drawn from the available evidence is that police took no action due to [Pupil A]’s unwillingness to move forward with the case for fear of her identity being made public knowledge. It is also noted that the LADO substantiated the allegation against you.

It is acknowledged that these appear to be the first incidents of any kind during your time in regulated activity; however there is an imbalance of power in that you were a teacher and [Pupil A] was a student. You abused your position of trust and exploited opportunities that arose. You contacted [Pupil A] when she turned 16, despite being employed as her teacher for a number of years prior to this. Your actions have been carried out over a sustained period of time and whilst it is acknowledged that there is no indication that you, having repeated your actions during your career in regulated activity, this does not diminish the risk you could pose in the future. You have not displayed any remorse or insight into the impact of your actions and you therefore presents [sic] an unacceptable future risk of harm to anyone in your care; the DBS cannot be certain that you would not act in the same way if presented with a similar situation. It is acknowledged that a large number of character references speak of your exemplary record and your passion for teaching; however this does not diminish the risk that you pose.

Your rights as set out by Article 8 of the European Convention of Human Rights [sic] have been considered. However, the SVGA provides the DBS with the legal power to include you on the Children’s Barred List and as such affords legitimacy to such a decision. The DBS has given regard to the fact that placing you on the Children’s Barred List will last indefinitely and will interfere with your rights to earn a living within your chosen field in regulated activity. It is also recognised that your financial circumstances will be subsequently affected as a result of the restriction on your employment opportunities, as may your standard of living. Particularly as you have specifically chosen to work in the teaching sector, something you would no longer be able to do were your name to be added to the Children’s Barred List. It will also affect your other roles related to sports coaching of children. However, a safeguarding decision must take into account not only the rights of the referred individual but also those of the vulnerable groups who may be at risk of harm as a result of your harmful behaviour. Taking this into consideration, it is deemed both necessary and proportionate to put further safeguards in place and even though information may be shared on your enhanced disclosure certificate, which prospective employers will see, this current safeguard is deemed to be insufficient.

It is noted that the TRA are currently undertaking an investigation into your position, however their decision is not expected imminently and therefore it does not seem prudent to delay the decision making process further to await that outcome. If any new information comes to light following the TRA’s decision, that is likely to alter the DBS decision then a review can be requested. Therefore there are not considered to be any robust safeguarding measures currently in place and whilst there is potential stigma attached to this outcome, should you choose to disclose it, you do pose a risk of causing sexual and emotional harm to children and a barring decision is reasonable in light of this.

As a result, we included your name in the Children’s Barred List using our barring powers as defined in Schedule 3, paragraph 3 of the Safeguarding Vulnerable Groups Act 2006 (SVGA) on 14 September 2020.”