[2025] UKUT 029 (AAC)

Finally, we consider whether DBS’s decision was proportionate. We are satisfied that it was and that the decision to include her on the children’s barred list is not an unlawful interference with her rights under Article 8 of the ECHR.

We start by recognising that a barring decision is a draconian sanction. It prevents the appellant from undertaking a wide variety of work, for which she has training and experience, and prevents her undertaking it potentially for life (although she may apply for a review in 10 years). It carries with it a significant stigma, lessened only marginally by the fact that the list itself is not accessible to the general public only to employers on a ‘need to know’ basis. However, it is right also to note that in the appellant’s case the effect of the barring decision has not been as harsh as it is for some. She is relatively young, she had done other types of work before and she has been able to find alternative work since.

Against the effect on the appellant, we consider the legitimate public interest in protecting children from those who may work with them. In this respect, we note that the appellant’s conduct in pulling Child A’s hair is at the lower end of seriousness in terms of its potential for harm. However, it is by no means inconsequential. This was deliberate infliction of physical pain in order to teach a child a lesson and Child A complained of pain immediately. There is evidence that, as one would expect, it caused emotional harm to Child A, the effects of which lasted at least into the following day.

If the appellant had demonstrated insight and remorse and undertaking training or counselling to address her response to the situation, we might have been persuaded that a barring decision was disproportionate. However, the appellant has maintained her denial of the incident. She has shown no insight at all. She still thinks she did nothing wrong. The circumstantial evidence as to events of 14 June 2023 indicated a lack of empathy and coping skills as already noted and her evidence to us has reinforced those findings. In short, we are satisfied that the appellant does pose a risk of harm to children that is significant enough in principle to warrant barring her in order to protect them.

We also take into account also that DBS’s view, which was not based on any mistake of fact, was that it was appropriate and proportionate to bar the appellant. We give due weight to that view. We share it. In our judgment, the decision to bar the appellant is justified. There is no other means by which the legitimate aim of protecting children may reasonably be achieved in this case. Dismissal by her employer is not sufficient as she may find alternative work with children despite that. There is also no other regulator to whom the appellant is answerable that can prevent her from working with children. Given the appellant’s range of work experience, it is reasonable to assume that she might, if not barred, seek to work with children in other contexts. The interference with the appellant’s Article 8 rights is therefore justified and proportionate given the legitimate aim pursued.