Court of Appeal upholds DBS decision in safeguarding case

Introduction

The Court of Appeal has upheld a decision by the Disclosure and Barring Service (DBS) to retain an individual, anonymised as 'A', on the Children's Barred List (CBL). The decision followed an appeal against the Upper Tribunal's ruling, which also supported the DBS's decision. The case centred around whether 'A' might engage in regulated activity with children in the future, and the proportionality of maintaining his barred status.

Background

The appellant, 'A', has a history of criminal convictions, including offences with a sexual element. Despite these convictions not involving minors, the DBS determined that 'A' posed a risk to children, particularly physically mature females under 18. This decision was based on past conduct and the potential for future engagement in regulated activities, such as coaching children's football.

Legal Framework

The legal framework for the case is grounded in the Safeguarding Vulnerable Groups Act 2006 (SVGA). Under this legislation, the DBS is responsible for maintaining the CBL and Adult Barred List (ABL). A person is barred from regulated activity with children if included in the CBL. Appeals against such decisions can be made to the Upper Tribunal, which can only overturn a DBS decision if a mistake of law or fact is found.

Arguments on Appeal

'A' argued that the DBS and Upper Tribunal erred in concluding he might engage in regulated activity with children. He maintained he had no intention of coaching and that his expired coaching qualification and a permanent suspension from football by the FA made future involvement unlikely. He also challenged the proportionality of the decision, given his rehabilitation and lack of recent offences.

Court of Appeal's Decision

The Court of Appeal reviewed the Upper Tribunal's decision, focusing on whether it had correctly applied the law and assessed the facts. The court found no error in the tribunal's conclusion that 'A' might engage in future regulated activity. The tribunal had considered documentary evidence and 'A's' past statements expressing interest in coaching.

Proportionality and Risk Assessment

The Court of Appeal upheld the tribunal's proportionality assessment, which balanced the safeguarding risks against 'A's' rights under Article 8 of the European Convention on Human Rights. The court noted the seriousness of the past offences and the specific risk identified to a small group of children. It found the DBS's decision to retain 'A' on the CBL was justified to protect vulnerable groups.

Conclusion

The Court of Appeal's decision highlights the importance of safeguarding in DBS assessments and the rigorous standards applied in evaluating potential risks. The case underscores the DBS's role in protecting children from harm, even when past offences did not involve minors.

Learn More

For more information on safeguarding and regulatory frameworks, see BeCivil's guide to English Data Protection Law.