Automated Summary
Key Facts
NNM appealed against DBS's decision to include him in the children's barred list under section 4(2)(a) of the Safeguarding Vulnerable Groups Act 2006. DBS found that between 2021 and 2023, NNM failed to provide appropriate care to his child, including subjecting him to physical abuse and witnessing domestic violence. NNM, a teacher who had recently qualified, admitted to hitting his son but claimed it was culturally appropriate discipline. The Upper Tribunal confirmed DBS's decision, finding NNM lacked insight into safeguarding issues and his attitudes would affect his ability to work collaboratively with professionals. The Tribunal assessed proportionality and concluded that protecting children outweighed NNM's Article 8 rights.
Issues
The main legal issue is whether the Upper Tribunal should confirm DBS's decision to include NNM in the children's barred list under section 4(2)(a) of the Safeguarding Vulnerable Groups Act 2006, considering whether his attitudes and beliefs would affect his ability to recognise safeguarding issues when working as a teacher and whether the decision was proportionate given the objective of protecting children from harm
Holdings
The Upper Tribunal confirmed the Disclosure and Barring Service's decision to include the appellant (NNM) in the children's barred list under section 4(2)(a) of the Safeguarding Vulnerable Groups Act 2006. The Tribunal found that DBS did not make mistakes in law or in the findings of fact on which its decision was based. The decision was deemed proportionate given the need to protect children from harm, outweighing the interference with the appellant's Article 8 Convention rights. The appellant failed to discharge the burden of showing that DBS made a mistake in its decision.
Legal Principles
- The Upper Tribunal assesses evidence on the balance of probabilities when making findings of primary fact. Oral evidence may be heard and assessed against documentary evidence. The Tribunal may view oral and written evidence as a whole to make its own findings.
- The burden of showing a mistake rests on the appellant (NNM) to demonstrate that DBS made a mistake of law or fact. The appellant must satisfy this burden to succeed on appeal. The Upper Tribunal is not required to make findings of fact unless the appellant has discharged this burden.
- The Upper Tribunal applied the proportionality test from Bank Mellat v Her Majesty's Treasury (No 2) [2014] AC 700 at [74] to assess whether DBS's decision to include NNM in the children's barred list was disproportionate under section 4(2)(a) of the Safeguarding Vulnerable Groups Act 2006. The four elements assessed were: (1) whether the objective of protecting children from harm is sufficiently important, (2) whether the measure is rationally connected to that objective, (3) whether a less intrusive measure could have been used, and (4) whether balancing the severity of effects against the importance of the objective, the former outweighs the latter. The Tribunal concluded the protection of children outweighs the interference with NNM's Article 8 rights.
Precedent Name
- B v Independent Safeguarding Authority
- XYZ v Disclosure and Barring Service
- Disclosure and Barring Service v JHB
- Bank Mellat v Her Majesty's Treasury
- CM v Disclosure and Barring Service
- PF v Disclosure and Barring Service
- RI v Disclosure and Barring Service
- R (Royal College of Nursing) v Secretary of State for the Home Department
- KS v Disclosure and Barring Service
- SD v Disclosure v Barring Service
- Disclosure and Barring Service v RI
Cited Statute
- Tribunals, Courts and Enforcement Act 2007
- Safeguarding Vulnerable Groups Act 2006
Judge Name
- Edward Jacobs
- John Hutchinson
- Suzanna Jacoby
Passage Text
- NNM adopted three approaches when being questioned. Each was an attempt to divert attention from the point of the question, but only succeeded in drawing attention to his resistance to answering a clear, direct question. Together they show that he still lacks the insight that would be necessary to render DBS's decision disproportionate.
- On the other side of the balance is the harm that might occur to children if NNM were allowed to work in regulated activity. DBS identified its concerns and we have found that they were valid on the evidence available at the time of the decision and on the evidence available to us. On our own assessment, we have come to the same conclusion as DBS: the protection of children outweighs the interference with NNM's Article 8 rights.
- DBS did not make mistakes in law or in the findings of fact on which its decision was based. DBS's decision is confirmed.