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Remedy – Remittal to the DBS pursuant to section 4(6) (b) & 7 of the Act
Remedy – Remittal to the DBS pursuant to section 4(6)(b) & 7 of the Act
We are not satisfied that we should direct that the Appellant's name be removed from the barred list with immediate effect but that he should remain on the list while the barring decision is reconsidered. This is because we have upheld in part two of the DBS’s findings as not containing mistakes of fact and we have found that the findings are capable of amounting to relevant conduct. Questions of appropriateness, necessity and proportionality of barring will be for the DBS on remittal.
In light of our findings that there was a material mistake of fact in relation to the first, second (in part), third and fifth findings of relevant conduct, we have decided to remit the Appellant’s case to the DBS for a fresh barring decision based upon the findings we have made above (see sections 4(6)(b) & (7)(a) of the Act). Given that we have upheld some of the second and all of the fourth findings of relevant conduct in relation to continuing contact and not destroying medication, and we have found that this constitutes relevant conduct, it would not be appropriate for us to direct the Appellant’s removal.
The DBS will need to reconsider the appropriateness and proportionality of including the Appellant on the CBL in light of the findings we have made.
It is therefore unnecessary for us to decide whether the decision to bar the Appellant was proportionate and whether there was any other mistake of law based upon the findings it relied upon. Nonetheless, we offer some observations upon the proportionality of the barring decision to assist the DBS in re-making its decision.
- Heading
- The decision of the Upper Tribunal is to allow the appeal of the Appellant
- Rule 14 Anonymity Orders and directions
- The Background
- "Based on the enclosed information, it appears, on the balance of probabilities, that
- Fostering review meeting minutes, 27 January 2022
- Character references
- The Respondent’s barring decision dated 20 June 2022
- Findings of Relevant Conduct
- The material relied upon by the DBS at the time of barring in support of the findings of relevant conduct
- Contacting DM between 25/5/21 and 12/821
- Waking DM early and bringing him to work
- Failing to dispose of medication with which DM then overdosed 6/6/21
- Showing pornography et al in 2018
- Failed to sit at hospital with [DM] on the morning of 24/25 May 2021, as alleged or at all
- Failed to dispose of medication which DM no longer required, as alleged or at all
- Shared with DM his wishes for the outcome of the D[] Children's Services Trust investigation Caused DM physical and/or emotional harm
- Came to conclusions based on inferences that it was not entitled to draw from the evidence Came to a barring decision that was, in all the circumstances, disproportionate
- The decision to include the Appellant on the Children's Barred List was, in all the circumstances, disproportionate Law
- it is satisfied that the person has engaged in relevant conduct, and
- it is satisfied that it is appropriate to include the person in the list
- on any point of law
- If the [ Upper] Tribunal remits a matter to [DBS] under subsection (6)(b)–
- a. “on any point of law” (section 4(2)(a) of the Act)
- remit the matter to DBS for a new decision
- DBS’s submissions
- No material mistake of fact
- The decision was disproportionate
- Transferability/Proportionality
- Conclusions on the Appeal
- Discussion: Findings of Fact and Analysis of grounds of appeal
- The Appellant’s evidence
- Post Hearing application for the admission of late evidence
- The Appellant’s representations from 3 June 2021 and assessment of his reliability
- Ground 1
- Finding 2: On dates between 25 May 2021 and 12 August 2021 you continued to contact DM, aged 15, despite having being [sic] re-quested not to for the wellbeing of DM following DM being removed from yo
- Finding 3: On dates between 20 August 2020 and 24 May 2021, you woke DM, aged 15, at 5.30 a.m. on mornings before school, bringing him to work with you and having him complete work/school work prior t
- Finding 4: On a date prior to 25 May 2021 you failed to dispose of medication which DM, aged 15, no longer required, leaving remaining medication in DM's possession who subsequently took an overdose o
- Finding 5: On a date in 2018, you showed a pornographic image of oral sex that you had as your computer screensaver, showed an air gun and pellets in your drawer, and repeatedly asked three school gir
- Conclusions on mistakes of fact in five findings of relevant conduct
- Erroneous Inferences – Appellant submissions
- Remedy – Remittal to the DBS pursuant to section 4(6) (b) & 7 of the Act
- Mistake of Law - Proportionality
- Appellant’s submissions on Proportionality
- Discussion
- Conclusions