Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Case No.  V/3182/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Rowland, Ms Linda Redford, Ms Sally Derrick

 

 

The Appellant appeared in person.

 

The Respondent was represented by Ms Zoë Leventhal of counsel, instructed by the Treasury Solicitor.

 

 

Decision:  Permission to appeal against the decisions of the Independent Safeguarding Authority dated 14 November 2012 and of the Disclosure and Barring Service dated 31 October 2013 is granted. 

 

However, the appeals against those decisions and the decision of the Independent Safeguarding Authority dated 12 June 2012 are dismissed and so all three decisions are confirmed.

 

 

REASONS FOR DECISION

 

The procedural history of this case

 

1. The Respondent, the Disclosure and Barring Service (“DBS”), is the successor of the Independent Safeguarding Authority (“ISA”), the latter’s functions having been transferred to it on 1 December 2012.  Among those functions, are the maintenance of the children’s barred list and the adults’ barred list under section 2 of the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”) and the inclusion of people in, or their removal from, the lists.  Under section 3 of that Act, those included in the lists are barred from working in regulated activity relating to, respectively, children or vulnerable adults.

 

2. On 2 June 2011, the Appellant was included in both lists by the ISA because it had been notified (apparently on 11 May 2011 in the form of a Police National Computer data report) that she had been convicted at Guildford Crown Court on 17 November 2010 of two offences under section 1(1) of the Children and Young Person Act 1933.  Such convictions required the ISA to include the Appellant in the lists but also required it to give her an opportunity to make representations, if she wished, as to why she should be removed from the lists (see paragraphs 2 and 8 of Schedule 3 to the 2006 Act as then in force (set out in paragraph 1 of the Appendix to this decision) and regulations 4 and 6 of, and paragraphs 2 and 4 of the Schedule to, the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009/37)).  She duly made representations, challenging the reports of police officers that had led to her prosecution and in effect arguing that she had been wrongly convicted.

 

3. Nonetheless, on 12 June 2012, the ISA decided not to remove the Appellant from the lists.  In its decision, it said –

 

“You have made representations disputing whether the events that gave rise to your conviction happened.  We have not considered your representations in this regard.  This is because we do not re-examine the facts that gave rise to your conviction but treat them as proven on the balance of probabilities so long as the conviction stands.

 

It is recognised that you have stated that the circumstances surrounding your conviction were born from false and malicious allegations made up by the police and Social Services.  However, there is no evidence or information to substantiate that there was collusion, malice or any other factors involved that would case doubt upon the circumstances surrounding your convictions.

 

Having considered your representations we have decided that it is not appropriate to remove you from the Children’s Barred List or the Adults’ Barred List.  This is because you have stated that that the children were not living at the address but at a chalet which was clean and tidy.  You further added that the offences were due to you visiting the address however your oldest child was interviewed by socials services and police she stated you had told her to tell people that they lived at the chalet when they in fact lived at the house.

 

It is acknowledged that you do not accept that you were neglectful to your children and it is noted that you have provided character references from your GP and Psychologist [actually a psychotherapist] which state that in their opinion you does not pose a threat to children; however Social Services have not returned your children to you and Social Services have now obtained full care orders with a care plan for adoption.  Although a reference from [the psychotherapist] states that you have complied with all requirements set out by social Services this opinion is outweighed by the fact that all contact between you and your children has now been prevented.

 

The remainder of your representations appear to be in relation to the conviction you have for animal cruelty and focus on the reasons as to why your disqualification from having an animal should be lifted, which is irrelevant to our decision.  You have provided certificates in relation to the animal care courses you have carried out but there is no corroborating information relating to the work you have carried out in relation to having your children returned to you.  You have further stated that you are at present studying a middle years award in positive parenting and child psychology but there is no documentation on file to support this.”  (Typing and grammatical errors in the original.)

 

4. On 12 September 2012, the Appellant applied to the Upper Tribunal for permission to appeal under section 4 of the 2006 Act (see paragraph 6 of the Appendix to this decision), saying that not all contact with her children had been stopped (in support of which she provided photographs) and that she wished to prove that lies had been told against her and so clear her name. 

 

5. On 14 November 2012, the ISA removed the Appellant’s name from the adults’ barred list in the light of the coming into force of section 67 of the Protection of Freedoms Act 2012 (see paragraph 2 of the Appendix to this decision).  It said –

 

“Based on the information currently available to the ISA it does not appear that you have worked, are currently working, or are likely to work in regulated activity with vulnerable adults in the future.  Accordingly your name has been removed from the Adults’ Barred list on 14 November 2012.

 

As your name is no longer included in the Adults’ Barred List, we do not intend to defend this aspect of your appeal.  Please note however that this does not affect the continuation of your appeal against your inclusion on the Children’s Barred List.”

 

6. On 7 December 2012, Judge Rowland issued directions, stating that the part of the Appellant’s appeal relating to the adults’ barred list could be treated as having lapsed so that the appeal would be treated as solely against the inclusion of the Appellant in the children’s barred list and directing the Respondent to provide the documentary material considered by the ISA when making its decisions.  That information was provided on 7 January 2013.  It included the information the ISA had been able to obtain from the police and from the children’s services department as well as the documents submitted by the Appellant. The police had provided a print-out from the Police National Computer, which included a list of the Appellant’s convictions and abbreviated police reports relating to her convictions under the 1933 Act, including notes of what the Appellant had said in interview and also what her daughter had said in a video-recorded “achieving best evidence” interview (“ABE interview”).  The children’s services department had been less forthcoming, providing – after referring the ISA’s request for information to its lawyers – only a single page in which it said –

 

“Following your request for information regarding [the appellant] please see … Childrens’ Services involvement with her children, …

 

23.03.10 - Surrey Childrens’ Services carried out a Joint Investigation Home Visit to the family home in … following a referral.  As a result of this Joint Investigation Visit, the children were removed from [their parents’] care by means of a Police Protection Order and placed with Surrey Foster Carers where they have remained to date.

 

10.10.2010 – Royal Society for the Protection of Animals [sic] obtained prosecutions against [the Appellant] (and [her husband]) for cruelty to animals.  Both pleaded guilty to a umber of charges and were banned from keeping dogs or pets for seven years.  This ban was later reduced to four years.

 

15.04.2011 – [The Appellant] was convicted at Guildford Court for Child Neglect.

 

19.07.2011 – Full Care orders were obtained at Guildford Court, with a Care Plan for adoption.

 

[The Appellant] has never accepted the Court’s decision to grant Full Care orders on her children.”  (Apostrophes as in the original.)

 

7. On 21 February 2013, Judge Rowland gave permission to appeal, saying –

 

“1. The Independent Safeguarding Authority appears not to have spelled out the implication of full care orders having been made.  One implication is that there must have been a judicial finding that the threshold condition for making a care order has been satisfied.  Section 31(2) of the Children Act 1989 provides –

 

“A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control.”

 

Grounds for finding that threshold condition to be satisfied would amount to “relevant conduct” for the purpose of paragraph 9 [sic, this should have been a reference to paragraph 3] of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

 

2. The court must also have considered that it would be better for the children that care orders be made than it would be not to make care orders.  Section 31(5) provides –

 

“Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.”

 

3. The Appellant’s case appears to imply that the Upper Tribunal should go behind both the convictions and the findings made in the care proceedings.  That in turn raises important questions as to the circumstances in which it is appropriate for the Respondent or the Upper Tribunal to go behind a conviction that does not lead automatically to barring and as to the information that should be provided to the Respondent and Upper Tribunal about care proceedings.

 

4. It is clearly arguable that neither the Respondent nor the Upper Tribunal should go behind a conviction or other judicial finding made after a full hearing of the merits of the case. 

 

5. However, in this case it appears that there was no finding by a criminal court on the matters in issue in this case because the Appellant was convicted on her pleas of guilty and she was refused permission to change her pleas before she was sentenced.  In relation to the care proceedings, the details provided by the local authority are so sketchy that it is unclear what findings of fact were made in the care proceedings and, in particular, whether the court made any findings of fact in relation to the matters that had been the subject of the criminal proceedings or whether it simply relied upon the convictions.  It is, of course, possible that it found the threshold condition satisfied on entirely different grounds.

 

6. Having regard to paragraphs 5, 7 and 9 of the Schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008 (SI 2008/3265), it is arguable that the Respondent could require the local authority to provide it with far more information than has been disclosed on doc 173 and could, in particular, require it to disclose findings made by the court and reports and witness statements relied upon in the court proceedings.  …”

 

8. In the light of those observations, the Respondent asked that “the matter be remitted back to the DBS” so as to enable it “to review the further information provided by the Appellant and request, and give consideration to, any further information from the Local Authority”.  Judge Rowland did not consider “remittal” to be the right concept but, on 21 February 2013, stayed the proceedings before the Upper Tribunal.

 

9. On 31 October 2013, the Respondent issued a further decision, which it explained as follows –

 

“We believe that you might in the future be engaged in regulated activity with children. This is due to your letter dated 17 October 2011, in which you state 'I also wish to work with children'.

 

As mentioned in the then Independent Safeguarding Authority's (ISA) letter dated 02 June 2011, we have taken the following into account:

 

·         Conviction for two counts of 'Doing an Act of Cruelty to a Child or Young Person Under 16 Years' at Guildford Crown Court on 17 November 2010.

 

We previously explained that your representations cannot challenge cautions, convictions or competent body findings and therefore we have disregarded any challenge relating to these.

 

Having assessed all the information held, including your representations, we have reached the view that, on the balance of probabilities:

 

- Your home (…) was in an unacceptable condition for children when police attended on 18 March 2010. This was then followed by a joint police/social services visit on 23 March 2010.

(Flags I1 J1 K1 L1 N1 O1 S1 Z1 D2 M2 P2 Q2 R2 S2 T2 U2 V2 W2 X2 Y2 Z2 E3 K3 L3 M3)

 

- [The home] had previously been found to be in an unacceptable condition in 2004, with your family being involved with social services since 2003.

(Flags A2 M2 P2 S2 T2 U2 Y2 Z2 C3 E3 M3)

 

- Your daughter's (…) presentation was poor, being unkempt and smelling of urine. This relates to when she was collected from school on 23 March 2010 and also prior to this.

(Flags I1 D2 Q2 R2 S2 T2 U2 W2 X2 Y2 Z2 E3 F3 L3 M3)

 

- When taken into police protection, your son (…) smelt of urine and also had dog faeces between his toes.

(Flags I1 J1 K1 L1 N1 D2 Q2 R2 U2 W2 X2 E3 L3 M3)

 

- Your children (…) were living at … at times in which it was in a wholly unacceptable condition.

(Flags I1 J1 K1 L1 N1 O1 S1 D2 E2 M2 P2 R2 T2 U2 Y2 Z2 D3 E3 L3 M3)

 

- You coached [your daughter] to turn her against the police and social services.

(Flags M2 C3 M3)

 

Please note, a full annex of the flagged documents considered is attached to this letter.

 

In the light of the above findings, we believe that on balance, a barring decision is the appropriate course of action at this time.

 

In reaching this decision we have noted the support offered to you by both [the GP and the psychotherapist]. We also acknowledge the significant number of academic courses you have completed relating to the care of children.

 

Furthermore, it is also clear from the photographs on file, that you have made considerable progress in improving the condition of your home. It also appears that there have been time periods in the past where the condition of the home has been at an acceptable standard.

 

Whilst we accept parenting a child differs to looking after a child on a professional basis, we remain concerned that you have an inability to accept opinions/advice of professionals more generally, should such individuals hold a view contrary to your own, especially if this is critical of you.

 

We believe this has been demonstrated in relation to a number of professionals, over a considerable period of time. We consider that the professionals in this case had the welfare of your children at the forefront of their minds, making your failure to accept their views concerning. We consider that if this was to occur in relation to a child you were caring for in a professional capacity, then the child may be exposed to an unnecessary risk of harm.

 

We also believe you have failed to take responsibility for the conditions you allowed your children to live in. We believe your inability to take responsibility for this, continuing to deny your children were present, when the evidence is clearly to the contrary, could potentially have negative consequences for any child you may potentially care for in a professional capacity.

 

Therefore, we conclude that your continued inclusion in the Children's Barred List is the most appropriate course of action. As a result, your name remains included in the Children's Barred List using our barring powers defined in Schedule 3, paragraph 3 of the Safeguarding Vulnerable Groups Act 2006 (SVGA).”

 

10. The Respondent also provided to the Upper Tribunal the documents it had used in making its decision.  Most of these – about 600 pages – had been obtained from the children’s services department and related to the care proceedings.  These included the (re-dictated) judgment of His Honour Judge Rylance, in which he gave his reasons for making the care orders in respect of the Appellant’s children in Guildford County Court on 19 July 2011, and a substantial number, but not all, of the witness statements and reports in those proceedings.  There were also the sentencing remarks of His Honour Judge Addison made when he had sentenced the Appellant at Guildford Crown Court on 15 April 2011.  In addition, there were the detailed comments made by the Appellant on those documents and submitted to the Respondent.  Finally, there was the Barring Decision Process document, in which the Respondent set out how it had evaluated the evidence before it and reached its six specific findings of fact and how it had reached its decision that it was not appropriate to remove the Appellant from the children’s barred list.

 

11. On 5 November 2013, the Appellant wrote to the Upper Tribunal, denying each of the six specific findings of fact made by the Respondent except the first – that the house was in an unacceptable condition on 18 March 2010 – which she effectively suggested was irrelevant because she had denied that the children were living there.  We treat that letter as an application for permission to appeal against the decision of 31 October 2013.

 

12. The Respondent made its formal response to the Appellant’s appeal on 14 January 2014, to which the Appellant replied on 28 March 2013, providing an up-to-date reference from her psychotherapist.  On 8 September 2014, Judge Rowland directed that there be an oral hearing at which the Upper Tribunal would wish to hear argument as to whether it was entitled to, or should, go behind the findings of fact made by Judge Rylance.  An oral hearing took place before us on 17 October 2014 and there were subsequent submissions on two further issues of law raised at the hearing.

 

The proceedings in the Crown Court and the County Court and their background

 

13. Judge Rylance recorded that police files showed that there had been 29 occasions when the Appellant and her husband had come to the attention of the police, generally as a result of verbal discord or abuse but sometimes due to one of them complaining of physical violence from the other.  On 18 March 2010, the police were again called out and PC Hench attended their house in Surrey.  His description of the state of the house is set out in Judge Rylance’s judgment –

 

"When I arrived at the address [the Appellant’s husband] answered the door. His son, …, was upstairs crying. I shall refer to the son as …. As soon as I entered the premises I was immediately aware of the overwhelming rancid smell of ammonia. The inside of the house was in a disgusting state and there was a large puddle of dog urine in the hall by the front door. [The Appellant’s husband] explained that his wife, …, had left the premises with their daughter, …, prior to my arrival. We entered the lounge, which was also in a state. Immediately behind the door were two steel cages, one of top of the other. The lower cage was empty but the top cage had an adult white Scottie type dog in it. There was paper on the bottom of the cage but this was completely sodden and the paper was falling through to the cage below. There were piles of dog faeces across the bottom of the cage. The dog was whining and clawing at the cage door. The rest of the lounge was also in a complete mess and there was still an overpowering smell of dog urine. At this point [the Appellant’s husband] went upstairs to get [their son], who was still crying. Shortly afterwards [the Appellant] came back to the house with [her daughter]. She explained her side of events in front of the children, using the strongest language, frequently using the words 'fuck' and 'cunt'. She appeared to be highly agitated and kept referring to wanting another baby by [her husband] and referred to how he no longer wanted her and how she desperately needed a sperm injection. She talked very quickly and appeared to me to have mental health issues. During this [her daughter] was watching her mother intently. Whilst we were discussing the reasons for the argument [her son] was placed on the floor of the lounge. He was wearing a nappy and a small leather jacket. The small Scottie type dog, which has been released from its cage and was covered in urine and faeces, ran over to [her son] and started licking his face and putting his paws on him. I know that it was dog faeces on his fur because at one point he ran over to me and put his paws up on my uniform trousers. They left brown marks and smelt of dog faeces. Both [the Appellant’s husband and she] appeared completely unconcerned by this."

 

14. As a result of his visit, police and a social worker attended on 23 March 2010.  The state of the premises was similar.  A police photographer took photographs.  The social worker subsequently said in a statement recorded by Judge Rylance –

 

"In the third bedroom there was a cot and a single bed. There was dog faeces all over the floor in this room and the smell in the room was very overpowering, so much so that I decided not to enter the room. The smell was so bad my eyes were stinging because of the strength of the smell and I had to keep holding my breath. I opened the door to the bathroom and noticed a pile of soiled nappies by the sink. The soiling was on the outside of the nappies and the soiling was faeces."

 

The Appellant and her husband were there with their son who was then aged 20 months.  Their daughter, then aged six and a half years, was at the local primary school.  Both children were taken by the social worker to a place of safety and emergency protection orders were subsequently obtained.  On the following day, RSPCA inspectors and police entered the property and removed 19 dogs, four from inside the house, one from a car outside and the remainder from pens in the garden.  The Appellant and her husband were charged with nine offences relating to the dogs.

 

15. They were also charged with offences in respect of the children.  We have been unable to find in the documents before us the precise terms of the counts under section 1(1) of the Children and Young Persons Act 1933 to which the Appellant pleaded guilty.  All we know is that there were three counts against the Appellant on the indictment and the Appellant pleaded guilty to two that alleged neglect, one in respect of each of her children.  The third count was directed to lie on the file.  The charges against her husband were also dropped, the reason for which Judge Rylance found “hard to fathom”. 

 

16. However, of rather more practical importance than the terms of the counts on the indictment is the Appellant’s formal “basis of plea”, which is helpfully set out at paragraph 21 of the judgment of Judge Rylance –

 

"I plead guilty to count one and count two of the indictment on the agreed basis that between 18th March 2010 and 23rd March 2010 [the children] were residing at [the house in Surrey] for a few hours, not every day. Regrettably, [the children] may have stayed overnight at the property on one occasion. Normally the children would sleep overnight at my chalet in … Kent. I accept that the lodgings at [the house in Surrey] were not adequate. I ought to have known that there was a risk to [the children’s] health, however I state at the time the house was being decorated, new carpets were to be laid in each room and a new bathroom and a kitchen were due to be fitted. I accept that there was a presence of dog faeces and urine in the hallway and children's bedroom. I state that [my son] did not come into contact with the dog faeces or urine, however [my daughter] may have one occasion entered the children's bedroom. I accept that I should have taken the time to clean the dog faeces and urine. I did not place nappies on the floor with the intention to allow the dogs to defecate and urinate upon the nappies. The dogs were placed in the room for a period of time and one dog in particular defecated and urinated upon the clean nappies."

 

Judge Addison’s sentencing remarks confirm that the Appellant was sentenced on that basis. 

 

17. None of the parties in the care proceedings accepted that the basis of plea in the criminal proceedings accurately reflected the facts of the case.  The local authority submitted that the Appellant and her children had been living at the house in Surrey all along.  The Appellant’s case was that the children had not lived in that house even for the few hours between 18 and 23 March that she had admitted to in the Crown Court.  She said she was living in the chalet she owned in Kent while her husband was redecorating the house in Surrey, that she travelled from Kent to Surrey on most school days so that her daughter could go to school and that she would go into the house to collect post, do some washing and feed the dogs but her son would generally stay with a neighbour.  This case was supported by her husband.

 

18. Judge Rylance rejected the Appellant’s case for a number of reasons.  First, the Appellant had told both a psychiatrist and a psychologist that she had moved to the chalet, or at least out of the home, in the February, whereas it was subsequently proved that the chalet was only available when the site opened on 1 March.  Secondly, the photographs taken by the police showed no evidence of building or decorating works being carried out.  The father called a witness who said that he had frequently visited the home between 1 and 17 March and it was being done up everywhere, but the Judge disbelieved him because the witness accepted that the place had not been in the state shown in the photographs taken on 23 March and he was unable to explain how he had remembered the dates of the visits when asked to give a witness statement over a year later and had been unable to explain the apparent deterioration in the state of the house between 17 and 23 March if his evidence was correct.  The judge concluded that the witness had been “set up” by the Appellant’s husband and he also concluded that a neighbour called by the Appellant had been “put up” to giving evidence for her.  The neighbour was the one with whom the mother had said she generally left her son and she said that she had been unwell on 23^rd March and so could not help the Appellant that day.  The judge did not accept that the neighbour could properly identify that day in particular. 

 

19. However, he added that this witness “may have come close to the truth in saying that it was only for about one week that the mother came up from Kent”, although “I would be very slow to act on her evidence at all”.  He also did not place much weight to what the Appellant’s daughter said in her ABE interview as to when she was in Kent or Surrey although he considered that “there may be much truth in what she said about the mother [and children] going down to Kent when rows erupted between the parents”.  He continued –

 

“26. … On the other hand, children are able to be more accurate when talking about simple facts. I do, therefore, accept what she said about dogs being in the children's room and that they did "poo and wee" in there and her very telling-description and acting out – I watched the DVD – of having to tiptoe around the poo. Whether she was speaking of March or before then I cannot say but it does not matter. This was a description of a general state of affairs, not something that had just happened whilst the mother was away and observed, as she claimed, by [her daughter] when she went upstairs on one visit without permission.

 

27. [The Appellant’s daughter] also spoke graphically to her foster mother, whose evidence I accepted, about the dog poo on the floor.

 

20. The inconsistencies between the parents’ evidence and the other evidence and the inconsistencies in the Appellant’s evidence on matters of detail – although she was consistent in general terms – led him to doubt the parents’ credibility and, having considered whether they might have lied about some things but not others, he did not accept that the Appellant and her children spent virtually no time in the Surrey house from 1 March, although he accepted that there might have been some nights when they did not.

 

21. There was a specific dispute as to whether the Appellant’s son was in the home when PC Hench went there on 18 March.  The parents denied that he was there, let alone that he was upstairs.  Judge Rylance rejected that evidence, considering PC Hench to be an impressive witness.  “He was firm and clear in his recollection of the events, which has impacted strongly on him.”  There as also a dispute as to whether, after the Appellant had arrived, her son was on the floor and a dog covered in faeces jumped up and licked him.  Again, Judge Rylance preferred the evidence of PC Hench to that of the parents.  The parents alleged that the nappies seen by the social worker had been planted by the police.  Judge Rylance rejected that as “total fantasy”, partly because the Appellant had said in a police interview that she had left dirty nappies on the floor of the bathroom because the bin was full.

 

22. In relation to the allegation that the home had also been in an unacceptable state in 2004, with nappies full with excrement lying in the hallway, Judge Rylance relied on a contemporaneous police report.  Although the Appellant and her husband did not accept the reference to the nappies, Judge Rylance considered that it chimed with what had been found in 2010 and, since he doubted the parents’ evidence on other things, he saw no reason to doubt the police report.

 

23. In relation to the Appellant’s daughter’s presentation, Judge Rylance said –

 

“44. … I heard evidence from [the Appellant’s daughter’s] head teacher. I thought that she was an impressive, patently truthful and careful witness who was appropriately concerned for her pupils. I accept her evidence that [the Appellant’s daughter’s] appearance was often unkempt and that her body and clothes smelt and that some sort of powder was put on her in an attempt to mask the smell. It was an ongoing problem, she said. The parents denied this but they also said that the house did not smell. They were so used to it that it is highly possible that they thought that the house and [their daughter] did not smell but it did and she did, I find. The parents attributed [their daughter’s] unkempt look to her state at the end of an active school day. [The head teacher’s] answer to that was that most children look less tidy by the end of the school day but she said, ‘I am not concerned about most children.’ [The Appellant’s daughter’s] presentation was consistent with other evidence, which I shall come to.

 

45. Finding 19(a)(i) [on the local authority’s schedule of proposed findings] concerns reports of [the Appellant’s daughter’s] poor language skills and knowledge and understanding of the world around her. I am not clear of the basis of the parents' denial of this. It is the clear evidence of [the head teacher], who says that [the Appellant’s daughter] was well behind her peers and is consistent with the expert evidence of [a child psychologist]. The lack of knowledge and understanding of the world was very much in keeping with the poignant notes written by the foster mother at Christmas that [the appellant’s daughter] did not know what a Christmas cracker was or about the hanging up of stockings for presents.

 

…

 

48. Finding 21 concerns [the Appellant’s son’s] state when taken into police protection. It is said that he, his clothes and the blanket in which he had been wrapped by the mother smelt of urine. The blanket had black stains on it. [His] fingernails were full of a black substance and he had what was believed to be dog excrement between his toes. When his nappy was removed faeces were dried into his bottom. The parents deny or explain away all of this.

 

49. Finding 22 concerns the similarly un-kept and smelly presentation of [the appellant’s daughter] when picked up from school. This is not accepted by the parents upon the basis that she was clean and well presented when she went to school. The state of both children would be consistent with the disgusting conditions in which I have found that they were living. The direct evidence comes from …, the social worker involved in the children's removal, and from …, the foster mother into whose care they were placed. [The foster mother] was an honest, careful witness and a good caring foster mother to the children. She was clear that both children smelt of urine and that it was dog urine and not of [the Appellant’s son’s] dirty nappy or of [the Appellant’s daughter] having wet her knickers.  She said [the Appellant’s daughter’s] hair was matted, almost stiff to the touch. Both had very dirty, black toenails. [The Appellant’s son] seemed unused to a bath and [her daughter] said he had never been in one before. Earlier she had told …, the assistant team manager, that [the Appellant’s son] does not have a bath at home. [She] seemed afraid of having her hair shampooed. I have no hesitation in accepting [the foster mother’s] evidence and on this, that of [the social worker], save that there is, however, no evidence, only suspicion, that the dirt between Nigel's toes was dog excrement.”

 

24. In relation to the Appellant coaching her daughter, Judge Rylance said –

 

“56. … there is convincing evidence that in direct and telephone contact the mother has tried to influence [her daughter] in what she says and has tried to turn her against the social worker and the police. This comes from what [her daughter] herself has said in the second ABE interview and to [the foster mother] and from what [the foster mother] has overheard during telephone contact. The mother was callous enough to show [her daughter] a picture of a little boy who had died and said to her that this is what the social worker was going to do to her children. She also told [her daughter] that she, the mother, would go to prison unless Maria said that they had been living in Sheerness.”

 

25. In the light of all those matters, Judge Rylance found that –

 

57. … the section 31 threshold is amply made out upon the basis of these matters.  The children, particularly [the Appellant’s daughter] will have suffered in their emotional development and [she] has suffered in her educational development.  In the absence of removal both were at considerable risk from suffering further significant harm in their physical health and emotional and educational development.”

 

26. He also considered a number of experts’ reports and received oral evidence from a consultant clinical psychologist and an independent social worker who had prepared a parenting assessment and he accepted the unanimous opinion of the experts that neither parent, either together or separately, had the capacity to parent the children to a good enough standard.  The Appellant would need at least 18 to 24 months psychotherapy.  Moreover, he doubted that she would manage to separate from her husband and was satisfied that if the children were to return to a home with both of them, there would again be domestic discord and the physical environment would deteriorate again.  “The father seems oblivious to the mess.  The mother is not equipped reliably to avoid a deterioration and she is dominated by the father.”  Accordingly, he made the care orders sought by the local authority with a view to the children being adopted if placements could be found.

 

The arguments before the Upper Tribunal

 

27. The Appellant submits that the Respondents’ decisions were based on mistakes of fact.  In respect of the events in and before March 2010, her case is substantially the case she advanced before Judge Rylance.  She says that she was pressurised into pleading guilty in the Crown Court and was not able to put her case fully in the County Court.  She also says that the Respondent was wrong in both November 2012 and October 2013 to find that she might work with children as she has no intention of doing so.

 

28. She again says that she was living in Kent during March 2010 and that the children were not allowed to go into the house in Surrey during that period.  Her husband had put yard dogs into the house while she was away.  What she says now – and there seems to have been no mention of this particular point in the care proceedings – is that when she and the children were in Surrey, they stayed in a motorhome on their drive and the children were not allowed into the house.  She says that the reason there was no food in the house was that they were not living there.  She says that the evidence of the police officers and social worker was fabricated or exaggerated.  She accepts that the photographs were accurate but says that things had been moved around by the police.  Black bags were full of her husband’s correspondence rather than rubbish.  Orange juice and a bucketful of water had been spilt on the floor and accounted for much of the dampness, rather than urine.  The dog that greeted PC Hench had mud on its paws rather than faeces.  She accepts, though, that the yard dogs had defecated in the children’s bedroom since she had been at the chalet.  Her daughter went into the house against instructions and tiptoed round the poo and that, she says, was what her daughter had been describing in the ABE interview.  She denies that there were nappies with human faeces on them.

 

29. In relation to the state of the house in 2004, she says the police were lying and that, in any event, the social services involvement then was for different reasons and the allegations about the state of the house were different.

 

30. In relation to her daughter’s presentation, she says that she had gone to a meeting at the school about her daughter being unkempt but that she would never have sent her to school in the state described although her daughter might be untidy by the time she came home.  Her daughter, she said, had been bullied at school and the head teacher was prejudiced against her because she, and more particularly her husband, had friends who were Travellers.  She said there had been an incident when her daughter was hurt at school that had not been in the accident book and that her daughter had picked up bad language at the school – although she did admit that she had used bad language in front of her and should not have done so.

 

31. In relation to her son’s presentation, she said he could not have had dog faeces between his toes because he had not walked in the house and the only way he could have smelled of urine was if he had wet his nappy.  She bathed him at home or at her aunt’s home when she was in the motorhome but she only had a shower in the chalet.  She used nappy bags and had not put the soiled nappies in the bathroom.  The dogs, she suggested, could have opened nappy bags that had been there some time since she and the children were not living there.

 

32. The Appellant denies that her daughter was coached by her as to what to say.  She says that her daughter got confused as to where was home and she would also have been aware that the Appellant did not want people generally to know about the chalet.  She suggested that the foster mother had to say what she did to maintain her relationship with the local authority.

 

33. More generally, she was keen to emphasise that allegations that her children had not been vaccinated and that her daughter had had tooth decay had been shown to be unfounded and that her son had been injured by hair straighteners while in foster care and had been involved in a road traffic accident while in a car driven by a social worker.  She also produced, as she had to the Respondent, evidence of courses she has attended in relation to the caring of both animals and children and letters of support from her psychotherapist.  In response to a question by us, she said that she and her husband no longer saw their children.

 

34. Understandably, she has not raised, or argued, points of law.

 

35. The Respondent submits that there is no mistake of fact or law in the decision of 31 October 2013.  In its response, it says –

 

“For the reasons set out in the Barring Decision Making Process document (“BDMP”), it is submitted that there can be no real doubt that the events underlying the Appellant’s convictions are proved on a balance of probabilities.  The analysis in the BDMP notes Judge Rylance’s acceptance of virtually the entirety of the case against the Appellant.”

 

36. The Respondent further argues that the effect of the decision of 31 October 2013 is to cure any defect in the decision of 12 June 2012.

 

37. The parties’ submissions raise a number of points of law that we need to consider before turning to the Appellant’s arguments.

 

The law – the scope of appeals and the effect of reviews on appeals

 

38. The scope of appeals to the Upper Tribunal is determined by section 4 of the 2006 Act (set out in paragraph 6 of the Appendix to this decision), which was considered in MR v Disclosure and Barring Service [2014] UKUT 5 (AAC) where it was said –

 

“8. Where an appeal is allowed, subsection (6) appears at first sight to confer on the Upper Tribunal a broad discretionary power either to remove a person from the list or to remit the matter to the Respondent.  However, it is noteworthy that it does not confer a power to confirm the person’s inclusion on the list on grounds other than those relied upon by the Respondent and it is important to read subsection (6) in the context of subsections (3) and (5), which make it clear that the Upper Tribunal is not entitled to substitute its own view as to whether or not it is appropriate for an individual to be included in a barred list for that of the Respondent.  In those circumstances, it seems to us that the Upper Tribunal is entitled to remove a person from a barred list under subsection (6)(a) only either if the Respondent accepts that that is the decision that should be made in the light of the error of fact or law found by the Upper Tribunal or if the Upper Tribunal is satisfied that that is the only decision that the Respondent could lawfully make if the case were remitted to it.”

 

39. Therefore, subsections (5) and (6) largely impose duties on the Upper Tribunal rather than powers and they do not permit the Upper Tribunal to uphold a decision of the respondent to the appeal if it has found there to be any mistake of law or fact.  But it cannot have been intended that cases should be remitted where there was a minor mistake of fact that could not possibly make any difference to the outcome.  The implication is that “mistake” in this context means only a mistake made by the respondent at the time of its decision that is material in the sense that it could, at the time of the Upper Tribunal’s decision, make it appropriate that, contrary to the view expressed in the decision under appeal, the appellant should not be included in the relevant list and so should be removed from it. 

 

40. It is also plain from section 4 and paragraph 18A of Schedule 3 (set out in paragraph 5 of the Appendix to this decision) that decisions on appeals and reviews both look forward.  An error in a decision to include a person in a list may result in the person being removed from the list but it does not follow that the person may not still be convicted of an offence under section 7 of the 2006 Act if he or she worked, or tried to work, in any relevant regulated activity while included in a list.

 

41. It is for this reason that, in our judgment, an appeal lapses if a person is removed from the relevant list while the appeal is pending.

 

42. If, on the other hand, a review while an appeal is pending does not result in the appellant being removed from a list, the position is slightly more complicated.  Ms Leventhal referred us to AKM v Disclosure and Barring Service [2014] UKUT 66 (AAC).  That case was similar to the present one in that the ISA had first decided under paragraph 2 of Schedule 3, prior to its amendment by the 2012 Act, not to remove the appellant’s name from the list (“decision (a)”), and then, while an appeal against decision (a) was pending, the Disclosure and Barring Service decided not to remove him from the list following a review under paragraph 18A (“decision (b)”).  There were appeals against both decisions.  The Upper Tribunal said –

 

“27. Ms Hannett submits that there are three possible ways of dealing with such a situation i.e. that:

 

(a) both decisions are extant and must be determined;

 

(b) the right of appeal in relation to the first decision, under section 4(1)(b) of the 2006 Act, is superseded by that existing in relation to the second decision under section 4(1)(c); or

 

(c) that both continue to exist but in general the Upper Tribunal would stay the first one.

 

28. We discount (b) as it would require express statutory language to take away a right of appeal and there is none.  Which out of (a) or (c) should happen will depend on the circumstances of the case.  In many situations, whether a person’s name should continue on the Barred List will be a matter whose principal importance is looking forward.  In such a case, what is most important in terms of protecting vulnerable groups, defining an individual’s freedom of activity and making effective use of Upper Tribunal and other resources, is the second decision, taken with the benefit of further information, taking account of recent changes of circumstances or having rectified any error which may have occurred.  That is what has happened in the present case which is why the appeal against decision (a) was stayed and this decision has concentrated on decision (b).  It is now possible to say that now the respondent has gathered further evidence, it is apparent that any shortcomings there may have been in decision (a) are not material.  Though it is not necessary to decide the point, if the respondent did make insufficient findings about what the acts consisted of in respect of which the appellant was convicted, it has now remedied that and the evidence supports its, rather than the appellant’s, case.  Nor do we consider that the respondent has failed to address any of the other possible flaws in decision (a).”

 

43. We agree that it is difficult to find an approach that would be appropriate in all cases.  As the present case illustrates, a review decision may look at only one aspect of a decision (i.e., the question whether the person included on a list might engage in regulated activity in the future) or it may have the effect of completely replacing an earlier decision.  In AKM, the Upper Tribunal drew attention to one implication of this for the writing of review decisions –

 

“32. The situation where there is a decision and a review decision is likely to place demands on the respondent’s decision-writing skills.  If the review decision is adopting the reasoning of the original decision, merely topping it up by consideration of an additional piece of evidence or a new circumstance which has occurred, then it would be advisable for the review decision letter to say so.  The respondent may have considerable difficulty in demonstrating that its reasons meet the legal test of adequacy if it is left as a matter of conjecture to what extent it continues to rely on the reasoning of the earlier decision as part of the review decision.”

 

44. We also agree that a temporary stay of one appeal may be appropriate while a review and any appeal against the review are being considered and that the focus of any appeal is likely to be on the last effective decision in respect of each issue.  However, once any appeal against a review decision has been determined, it seems to us that it should always be possible to determine all appeals that are before the Upper Tribunal and that staying an appeal sine die will not be appropriate. 

 

45. This is because, as was recognised in AKM, where the effect of a review decision is to remedy errors in an earlier decision, the errors in the earlier decision will have ceased to be material “mistakes” by the time the appeal against the earlier decision is determined.  On the other hand, where a review decision does not remedy all material errors in an earlier decision, the Upper Tribunal will be obliged to allow the appeal against the earlier decision and so make a decision under section 4(6).  Often, therefore, the decision on an appeal against the earlier decision will be the same as the decision on the appeal against the review decision.  However, where for instance there has been a change of circumstances since the earlier decision was made, it is possible to envisage an appeal against the earlier decision being dismissed even though an appeal against the review decision is allowed.  Equally, where for instance a review decision is made under article 8 of the Protection of Freedoms Act 2012 (Commencement No.3) Order 2012 (see paragraph 8 of the Appendix to this decision), it is possible to envisage an appeal against an earlier decision being allowed while an appeal against the review decision is dismissed.

 

46. Ms Leventhal submitted that there had been two material reviews in this case since the Appellant appealed against the decision of 12 June 2012 not to remove her from the two lists – one leading to the decision of 14 November 2012 and one leading to the decision of 31 October 2013.  However, she submitted that, in its decision of 31 October 2013, the Respondent had considered all issues in the case so that, if we were to dismiss the appeal against that decision, any errors in the earlier decisions would have ceased to be important. 

 

47. Although we accept that it is implicit in the decision of 14 November 2012 that the ISA considered that the Appellant might then engage in regulated activity relating to children, we are not entirely convinced that it actually made a formal, appealable decision not to remove her from the children’s barred list.  However, the point is academic in the light of the subsequent decision and we are prepared to accept that it did make such a decision and to treat the Appellant as having applied for permission to appeal against it.  We also agree with Ms Leventhal that the application for permission to appeal against the decision of 31 October 2013 needs to be considered first and that, in this case, that will determine the outcome of the appeal and application for permission to appeal in respect of the two earlier decisions.

 

The law – findings of fact made in other proceedings

 

48. Although paragraph 16 of Schedule 3 to the 2006 Act (see paragraph 4 of the Appendix) makes provision as to findings of fact made by the competent authorities mentioned in paragraph 16(4), the Act is silent as to the effect of findings made by courts or other tribunals.  We must therefore look to the general law for guidance.  DBS and the Upper Tribunal are not strictly bound by the rules of evidence that apply in courts, but the rules of evidence in civil proceedings have become much more pragmatic over the last half-century and there seems no good reason not to apply most of them in the present context.

 

The relevance of the criminal proceedings in this case

 

49. The mere fact that the Appellant has been convicted of offences under section 1(1) of the 1933 Act means that, for the purposes of paragraph 2(1) of Schedule 3 to the 2006 Act, one “of the criteria prescribed for the purposes of this paragraph is satisfied in relation to” her, irrespective of whether she actually committed the offence.  There may in some cases be a question as to the accuracy of information about convictions obtained by DBS, which can be settled by obtaining a certificate from the relevant court, but, once a relevant conviction is proved, a prescribed criterion will be satisfied.  For these purposes it is not necessary to know the precise details of the offence charged.  It follows that a conviction is conclusive for the purpose of inclusion in the children’s barred list under paragraph 1 of Schedule 3.

 

50. However, the precise details of the offence of which a person has been convicted may become very relevant when one turns to the question whether it is “appropriate for the person to be included in the list” (see the former version of paragraph 2(4) of Schedule 3 and the new version of paragraph 2(8)(c) in paragraphs 1 and 2 of the Appendix).  It is at that stage that it becomes important to know exactly what the person concerned did or did not do and, indeed, it is open the person to argue that he or she did not commit the offence at all.

 

51. Section 11 of the Civil Evidence Act 1968 provides –

 

11.—E+W(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or of a service offence (anywhere) shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.

  (2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or of a service offence—

(a) he shall be taken to have committed that offence unless the contrary is proved; and

(b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose.

  (3) Nothing in this section shall prejudice the operation of section 13 of this Act or any other enactment whereby a conviction or a finding of fact in any criminal proceedings is for the purposes of any other proceedings made conclusive evidence of any fact.

…”

 

Thus, generally, a conviction is evidence that the person committed the crime of which he was convicted, but it is not conclusive.

 

52. This is so, even in the light of Hunter v Chief Constable of the West Midlands Police [1982] AC 529 in which, as the headnote records, the House of Lords held –

 

“that where a final decision had been made by a criminal court of competent jurisdiction it was a general rule of public policy that the use of a civil action to initiate a collateral attack on that decision was an abuse of the process of the court; and that such fresh evidence as the plaintiff sought to produce fell far short of satisfying the test to be applied in considering whether an exception to that general rule of public policy should be made, which, in the case of a collateral attack in a court of co-ordinate jurisdiction, was whether the fresh evidence entirely changed the aspect of the case.”

 

53. It was plainly not the intention of the House of Lords to render section 11 of the 1968 Act worthless.  Not every argument that a person did not commit a crime of which he or she has been convicted amounts to a collateral attack on the conviction and, in Arthur JS Hall & Co v Simons [2002] 1 AC 615; [2000] UKHL 38 in which the issue was the extent to which solicitors enjoyed an advocate’s immunity from suit, it was emphasised that Hunter had not laid down an inflexible rule but that the principle should be used only where it would be manifestly unfair to a party or would bring the administration of justice into disrepute for an issue to be re-litigated. 

 

54. Ms Leventhal submitted that we should take the same approach in these proceedings as a civil court would take and, in the absence of legislation to the contrary, there seems no good reason not to do so.

 

55. It follows, as Ms Leventhal accepted, that the statements contained in both the decision of 12 June 2012 and that of 31 October 2013 to the effect that representations by the Appellant that implied that she had not committed the offences had not be taken into account betrayed an erroneous approach.  However, those errors of law are not material if the Respondent did not actually make a mistake of fact in the light of that erroneous approach and it is plain that, in the decision of 31 October 2013, it was the decision of Judge Rylance in the care proceedings that was relied on rather than the convictions.

 

56. The truth is that the convictions do not by themselves provide much assistance on the question whether it was appropriate for the Appellant to remain included in the lists.  The precise terms of the counts to which she pleaded guilty are not known to us and the basis of plea is not accepted by the Respondent any more than it is by the Appellant.  Moreover, the guilty pleas were plainly entered under a certain amount of pressure and the Appellant had reservations about them at the time.  This is not a criticism of the Appellant’s barrister; given the evidence that we have seen and the pending care proceedings, perfectly proper advice could well have induced the Appellant to plead guilty even if in fact she was not.  It is arguable that the Hunter approach would prevent the Appellant from going behind her basis of plea but it is unnecessary to consider that in the light of Judge Rylance’s judgment.

 

The relevance of the civil proceedings in this case

 

57. In her skeleton argument, Ms Leventhal argued that section 11 of the 1968 Act reflected the underlying principle of issue estoppel, which applies also to findings in civil proceedings and therefore would apply to the findings of Judge Rylance in the care proceedings in this case.  However, strictly speaking, issue estoppel, or estoppel per rem judicatam, applies only where the parties to both the set of proceedings in which the issue was decided and the set of proceedings in which it is asserted there is an estoppel are, or are effectively, the same (see Hunter).  As the party against the Appellant was the Crown in the criminal proceedings and the local authority in the care proceedings and neither the Crown nor the local authority is the respondent in these proceedings, the Appellant is not estopped from arguing that she did not commit the offences of which she was convicted and did not do the acts that Judge Rylance found her to have done.

 

58. Indeed, section of the 1968 Act was introduced to reverse in part the very strict approach to issue estoppel taken in Hollington v F Hewthorne & Co Ltd [1943] KB 587.  In that case, the Court of Appeal held that the High Court had been wrong to admit evidence of a defendant’s conviction of careless driving in an action for damages for negligence bought by the father of a man injured in a road traffic accident who had since died.  The defendants had elected to make a submission of “no case” rather than call evidence to contradict the conviction and so the consequence of the Court of Appeal’s decision was that judgment was entered in favour of the defendants.  The decision of the Court of Appeal has been much criticised, not least in Hunter, but it has not been overruled and there are at least two elements of the Court’s reasoning that remain important.  One is simply that proving that the defendant had driven carelessly would not necessarily have proved that the relevant accident was caused by that carelessness.  The other is that the opinion of one court, based on evidence that it has heard, is not relevant in proceedings before a different court that must form its own opinion. 

 

59. This latter approach has been relied upon by the House of Lords in Three Rivers District Council v. Governor and Company of The Bank of England (No.3) [2001] UKHL 16; [2003] 2 AC 1 and by the Court of Appeal in Rogers v Hoyle (Secretary of State for Transport intervening) [2014] 3 WLR 148; [2014] EWCA Civ 257 where reports compiled by, respectively, a senior judge and the Air Accident Investigation Branch of the Department of Transport were admissible insofar as they contained statements of the evidence (which were admissible as hearsay evidence) but not insofar as they contained expressions of opinion, although in the latter case a distinction was drawn between expert opinions within the specialist expertise of the investigators (which were admissible as expert evidence) and non-expert opinion.  In the Three Rivers case, the opinions of the judge were not regarded as admissible even for the purposes of an argument that those who did not accept the findings he had made in his report had no reasonable prospect of success and should have their cases struck out.

 

60. This approach limits the scope of the Hunter approach in relation to collateral challenges to decisions in civil proceedings.  In Secretary of State for Trade and Industry v Bairstow [2004] Ch 1; [2003] EWCA Civ 321, it was accepted in the light of Arthur J.S. Hall & Co v Simons that Hunter could in principle apply in relation to civil proceedings but the Court of Appeal did not consider it to be unfair to require the Secretary of State to call one witness, rather than using the Judge’s order in the earlier proceedings as a short cut.  More importantly for present purposes, it was also held that, in the light of Hollington v F Hewthorne & Co Ltd, the judge’s findings of fact, as opposed to his order, in the earlier proceedings were not admissible in the later proceedings.  See also Conlon v Simms [2008] 1 WLR 484; [2006] EWCA Civ 1749. 

 

61. In the present case, the Respondent relied not just on the evidence before Judge Rylance but also on his findings, which were in some instances based on the relative credibility of two witnesses, whom he heard and saw give live evidence and be cross-examined, or on his impression of the ABE interview, which he watched on DVD whereas the Respondent and we have seen only a written summary and not even a full transcript. 

 

62. However, in our judgment, the DBS and the Upper Tribunal are not obliged to take quite such a strict approach to relevance as the courts still take in this area.  In ordinary life, the opinion of others is often considered relevant to the forming of one’s own opinions.  The identity of another person, the circumstances in which an opinion is formed and the reasons given for the opinion are matters that go to the weight that his or her opinions are given. 

 

63. Even courts are now entitled to receive hearsay evidence in written documents.  How much weight is given to such evidence depends on the circumstances.  Courts and tribunals may consider such evidence to be worthless but, if it is important, this requires balancing the possible unfairness to one party in being required to call the witnesses to give oral evidence (which may also involve cost and inconvenience to the witnesses themselves and to the tribunal system) against the risk of unfairness to the other party through an error of fact being perpetuated.  The fact that the Upper Tribunal may receive written evidence does not mean that it is always fair to do so; it has to consider whether fairness demands that there should be an opportunity for cross-examination.  On the other hand, the fact that there has been cross-examination in earlier proceedings may make it less necessary to allow cross-examination again.

 

64. In making these judgements, regard has to be had to realities of litigation and to the relative importance of the other proceedings, to the quality of reasoning behind the court’s findings and, of course, to the availability of new evidence that may change “the aspect of the case”.  The realities of litigation and the relative importance of proceedings may, for instance, be relevant when considering whether a party could reasonably have been expected to call evidence in, or appeal against a decision given in, earlier proceedings. 

 

65. Here, the question is whether the Respondent, and now the Upper Tribunal, is entitled to place weight on findings made by a court exercising a jurisdiction co-ordinate to that of the Upper Tribunal, where the judge gave detailed reasons for his decision.  Moreover, the care proceedings before that judge were far more important to the Appellant, and generally, than the present proceedings and she was represented in those proceedings.  Her counsel cross-examined the local authority’s witnesses and was able to call evidence on the Appellant’s behalf, including the Appellant herself.

 

66. The Appellant has said in general terms that she was not able to put her case in the care proceedings, but that is plainly not true.  Both her witness statements and Judge Rylance’s record of her case show that the case she was making then was fundamentally the one she makes now. No doubt all represented litigants think that there are times when they would have asked different questions or have made slightly different submissions from those asked or made by their representatives but we are quite satisfied that no point that could realistically have made any difference was not put to Judge Rylance.

 

67. Accordingly, in this case, we are satisfied that we can properly take into account Judge Rylance’s findings.

 

The relevance of findings by competent bodies

 

68. There is no finding by a competent body relevant to this case, but we nonetheless make some observations about paragraph 16 of Schedule 3 to the 2006 Act.  It would be odd if findings of the competent bodies mentioned in paragraph 16(4) carried more weight than those of a court and Ms Leventhal submitted that that was not the effect of the paragraph.  She submitted to us that it did not preclude the DBS from undertaking its own review of the facts and going behind the competent body’s findings in exceptional circumstances, which might include the availability of new evidence or compelling evidence of a procedural unfairness in the proceedings before the competent body.  That might be one reason for paragraph 16(3) being expressed in terms of the scope of permissible representations rather than in terms of findings being binding, although one might ask why the person concerned may not make representations on any point that the DBS is entitled to consider.  It may also be arguable that, even if paragraph 16 limits the DBS’s powers, it does not have any relevance on an appeal to the Upper Tribunal when the Upper Tribunal is considering whether the DBS made a mistake of fact.  Alternatively, it may be arguable that “findings of fact” do not include every minor finding of primary fact but only findings that particular allegations, comparable to counts on an indictment, are proved.  On any of those bases, the effect of paragraph 16 may be merely to put findings of competent bodies in the same position as findings of other courts and tribunals, which would be sensible but is not the most obvious construction of the paragraph.

 

Is the Appellant a person who “might in future be engaged in regulated activity relating to children”?

 

69. Before we turn to the main issue in the case, we consider whether the Respondent made a mistake of fact or law on 31 October 2013 when deciding that the Appellant might in future be engaged in regulated activity relating to children.  Ms Leventhal accepted that, if it did, we could direct that the Appellant be removed from the children’s barred list on that ground alone, but she submitted that it did not.

 

70. The Respondent accepts that the Appellant has never been engaged in regulated activity relating to children but relies on a letter written by the Appellant on 14 October 2011 and received by the ISA on 17 October 2011 in which she said –

 

“It is very hurtful to be on this register when I shouldn’t be on it.  I also wish to work with children.  I am studying on an Open Learning child care course.”

 

71. The Appellant’s case is simply that, while she then wished to work with children and still loves children very much, her experience with the care proceedings and now these proceedings has persuaded her that it would be too much trouble and stress for her.  She has said –

 

“… I do not intend getting employment with children.  I love children, don’t get me wrong, but due to the fabrication that I have been set up with my own children, who in their right mind would want to be set up again by being employed with other people’s children?”

 

72. We quite understand the Appellant’s position and, of course, if she were removed from the list and she did then try to engage in regulated activity she would no doubt swiftly be included in the list again as matters now stand.  (It is arguable that, even if we did consider that she will not engage in regulated activity, we could still deal with the other issues in the case (see Welsh Ministers v Care Standards Tribunal [2008] 1 WLR 2097; [2008] EWHC 49 (Admin).)  However, the threshold for finding that a person might in future engage in regulated activity is low – merely that there is a risk that is more than fanciful and therefore cannot sensibly be ignored – and it is material that having engaged in regulated activity in the past is sufficient as an alternative ground even without other evidence of there being a continuing risk. We also observe that, to the extent that the Appellant does not intend to engage in regulated activity, the practical disadvantage to her in being included in the children’s barred list is limited.  Given the Appellant’s statements that she loves children, the fact that she no longer sees her own children and her comparatively recent desire to work with children, we are satisfied that the Respondent did not make a mistake of fact on either 14 November 2012 or 31 October 2013 in finding that the Appellant might in future be engaged in regulated activity relating to children.

 

Did the Respondent make a material mistake of fact on any other issue?

 

73. Each of the six findings of fact made by the Respondent on 31 October 2013 was based on more detailed findings.  For the reasons given above, we approach this case on the basis that if, for instance, we were to accept that the house in Surrey was in an unacceptable condition in March 2010 but we were to find that not all the detailed findings recorded in the Barring Decision Process document were made out, we should find there to have been a mistake of fact if, on our more limited findings, the Respondent might have made a different decision on the question whether it was appropriate for the Appellant to be included in the barred children’s list.  We could not disregard such a mistake just because we would still have considered it appropriate for her to be included in the list, because that judgement is not for us to make.  But, equally, if we were to be satisfied that facts not relied upon by the Respondent were proved and that in the light of those facts the Respondent would be bound to find that it was not appropriate to remove the Appellant from the list, we would not be obliged to allow the appeal.

 

74. We do not consider it necessary to rely upon the convictions as providing support for any particular findings of fact.  Plainly, by themselves, they do not support all the detailed findings made by the Respondent on 31 October 2013 and it is not necessary for us to consider what, if any, findings they might support. 

 

75. However, for the reasons given above, we do consider Judge Rylance’s findings to be relevant and helpful, although not conclusive on any particular issue.  He was not obliged to make findings on every tiny dispute before him and he did not do so.  Thus, he did not make a finding as to the extent that the Appellant and the children might have been living at the chalet in Kent during March 2010.  He did not need to do so because, as he pointed out when considering the ABE interview, once he was satisfied that the children had been living at some stage in conditions described by the police, it did not matter a great deal precisely when that was.  We are in the same position.  We have formed the same view of the claimant’s evidence to us as he did of her evidence to him and we see no reason not to rely on his impressions of the evidence he heard and that we have not.

 

76. The evidence that, on 18 and 23 March 2010, the Appellant’s house in Surrey was in a state that was not a fit environment for children is overwhelming and even the Appellant accepts that that was so and that the children were consequently not allowed into it.  That some of the rubbish bags may have contained correspondence rather than rubbish and that some of the dampness on the floor may have been orange juice or water rather than urine is really beside the point.  It is beyond doubt that there were dog faeces and urine in the house and that the state of the premises, particularly upstairs, was disgusting so that any dog or person walking in that part of the house was liable to come into contact with the faeces and urine.  The house was simply not fit for human habitation.  We see no reason not to accept Judge Rylance’s finding that there were also dirty nappies on the bathroom floor.  The police officers’ statements are unequivocal and we agree that it is difficult to see why they should have wished to make anything up or why they should be mistaken on the most significant issues.

 

77. Judge Rylance did not hear oral evidence from the police or the local authority about the state of the Appellant’s home in 2004 and we are therefore in as good a position as him to form a view on this issue.  We agree with his reasoning, based on the police report, and on the balance of probabilities we find that the house was a dangerous environment for a young child at that time, although the evidence is that it was not in as filthy a state as it was in 2010.  The Respondent has not made any mistake of fact as to that.  However, this might not by itself be a particularly significant finding in the present case.  As the Respondent accepts, there is evidence that the home has been in a satisfactory state at some times.  It is not in dispute that there was social services involvement with the family but the Respondent has not made any finding as to the precise nature of it so it is unnecessary for us to do so either.

 

78. We accept Judge Rylance’s finding as to the presentation of both of the Appellant’s children on 23 March 2010 and of her daughter on previous occasions.  He has described the evidence he heard and we are not surprised that he made the finding he did for the reasons he gave.  The Respondent’s reliance on Judge Rylance’s findings is entirely appropriate and we are satisfied that it has not made a mistake of fact.  It has carefully considered the points raised by the Appellant and we agree with its reasons for rejecting them.  The Appellant has also argued that the head teacher was prejudiced against Travellers and that that might have influenced her view of the Appellant’s daughter.  However, her allegations were generalised and unconvincing and we reject them.  What the head teacher said about the Appellant’s daughter’s presentation on previous occasions was entirely consistent with the evidence of other witnesses as to her condition on 23 March 2010.

 

79. It is also – as both Judge Rylance and the Respondent have noted – entirely consistent with the Appellant’s daughter having lived in the sort of filthy home environment that existed on 18 and 23 March 2010, as was her son’s presentation on the latter date.  We are quite prepared to accept that the Appellant took the children to the chalet during March 2010 and that there may have been days when they drove up from there to Surrey in the morning and back in the evening due to the state that her husband had allowed the house in Surrey to get into.  There was evidence before Judge Rylance that the journey would take about an hour with clear roads but much longer during rush-hour.  We are also prepared to accept that, if that was so, the condition of the house might well have deteriorated in the Appellant’s absences.  It is even possible that the Appellant made some use of the motor home during that period although it seems most unlikely that she made any extensive use of it because, if she had done so as a way of avoiding being in the house, it is extraordinary that, although there is a mention in one statement of the vehicle being outside the house, that the Appellant should not have made her use of it an important factor in her case before Judge Rylance.  However, there was overwhelming evidence before Judge Rylance that the children had lived in the squalor for at least short periods.  In particular, we rely on his findings in the light of the ABE interview.  If the Appellant’s daughter was living there, it is reasonable to infer that her son was too, as her daughter in fact said.  Moreover, as the Respondent observed, the fact that the Appellant’s son was in the premises on both 18 and 23 March 2010 is significant and we rely on Judge Rylance’s finding, made after he had heard oral evidence from both parents and PC Hench, that the Appellant’s son was upstairs by himself when PC Hench arrived on 18 March.

 

80. Finally, we also rely on Judge Rylance’s finding that the Appellant had coached her daughter to mislead the police and social workers on matters material to the criminal and care proceedings.  Like him, we find it implausible that police or social workers would have brainwashed the Appellant’s daughter or put words into her mouth and he had the advantage of hearing oral evidence from the foster mother and watching the DVD of the ABE interview.

 

81. For these reasons, we are satisfied that the Respondent did not make any material mistake of fact within its six specified findings in the decision of 31 October 2013. 

 

82. The Respondent also made a number of findings in its Barring Decision Process document under the headings “Cognitive Factors – Harm-supportive thinking, attitude and beliefs”, “Emotional Factors – Relationships” and “Behavioural Factors – Self management and lifestyle”.  They are all made by reference to reports that were before Judge Rylance and which he generally accepted.  Of particular relevance are findings that the Appellant had no insight into her failings, that her refusal to accept those failings made it difficult for her to work constructively with professionals, that there had been occasions when she had exhibited unwarranted hostility to professionals and that she had been prepared to lie in the care proceedings.  Again we agree with these findings. 

 

Did the Respondent make any mistake of law?

 

The decision of 31 October 2013

 

83. Although the Appellant did not raise any specific point of law, we have looked carefully at the decision of 31 October 2013.  We are satisfied that the Respondent did not make any material mistake of law in that decision.  Its reasoning is clear and full and its judgment that it was appropriate for the Appellant to remain included in the children’s barred list was one it was entitled to make.  Indeed, it is difficult to see how it could properly have reached any other conclusion on the evidence before it, tested as it had been in the care proceedings.

 

84. In particular, the Respondent clearly took account of the opinions of the psychotherapist whose letters of support had been relied upon by the Appellant but it was equally clearly not obliged to place a great deal of weight on those opinions.  It is clear that the opinions were substantially based on what the Appellant had told him and that he had limited knowledge of the facts of the case.  His latest letter would not persuade us that it was not appropriate for the Appellant to be included in the children’s barred list even if we were entitled to make our own judgment on that issue.

 

85. However, we consider that the Respondent was wrong to rely on its “barring powers defined in Schedule 3, paragraph 3 of the Safeguarding Vulnerable Groups Act 2006”.  Although, as Judge Rowland said when giving permission to appeal against the decision of 12 June 2012, making a care order implies a finding that there has been what would amount to relevant conduct for the purpose of paragraph 3 and so is plainly relevant to a person’s inclusion in the children’s barred list, the position here was that the Appellant had been included in the list under paragraph 2 and the review was carried out under paragraph 18A.  Accordingly, the question was whether DBS considered that it should remove the Appellant from the list because it was satisfied that, in the light of the information that it did not have on 12 June 2012 or 14 November 2012 or in the light of any change of circumstances or any error by ISA, it was no longer appropriate for the Appellant to be included in the list.  The decision should have been phrased in those terms, relying on paragraph 18A rather than paragraph 3.  However, this is a matter of form rather than substance and does not justify allowing the appeal.

 

86. We add that there is no reason in principle why, in considering whether it is appropriate for a person to be included in a list under the new version of paragraph 2 of Schedule 3, regard may not be had to facts (including relevant conduct) other than the facts of which the conviction is evidence.  The conviction merely provides a threshold, equivalent to relevant conduct under paragraph 3.  Thus, even if a judgment in care proceedings is relied on to a greater extent than the conviction in deciding whether to include a person in a list, it would still usually be more appropriate to include the person in the list under paragraph 2, rather than paragraph 3, if at least some of the material facts are related to the conviction.

 

The decision of 14 November 2012

 

87. As we have said above, we are not entirely convinced that a formal decision in respect of the children’s barred list was actually made on this date but the point is now academic in view of the decision of 31 October 2013.  It has also ceased to be material that the decision does not make clear whether the review was paragraph 18A of Schedule 3 to the 2006 Act (on the basis that the amendments made to the 2006 Act by the 2012 Act had been a “change of circumstances relating to the [Appellant]”) or whether it was carried out under articles 8 and 9 of the Protection of Freedoms Act 2012 (Commencement No.3) Order 2012 (on the basis of a deemed application for review by the Appellant) or whether it was possibly carried out under both provisions on the basis that article 9 of the Commencement Order raised the question whether “the Appellant had been engaged or, on the date on which she was barred, might in the future be engaged in regulated activity relating to vulnerable adults” (our emphasis) but paragraph 18A enabled it to have regard to the question whether it had ceased to be likely that the Appellant would engage in regulated activity due to a change of circumstances. 

 

 

The decision of 12 June 2012

 

88. The decision of 12 June 2012 has also been overtaken by the decision of 31 October 2013 and we agree with Ms Leventhal that it has become unnecessary for us to consider whether there were mistakes of fact or law in the earlier decision.  It is right to say that the Respondent did have evidence other than the computer records of the convictions themselves, including statements made by police officers for the purposes of the criminal proceedings, but it had not then obtained either the basis of plea or Judge Addison’s sentencing remarks and it had hardly any information about the care proceedings.  Had it not obtained the further documentary evidence it considered on 31 October 2013, the Respondent might nonetheless have persuaded the Upper Tribunal that it was not necessary to call oral evidence in order to resist the appeal.  However, that is by no means certain, whereas, if ISA had obtained Judge Rylance’s decision and the other documents in the care proceedings before it made its decision on 12 June 2012, it is unlikely that the Appellant would have been given permission to appeal.

 

Conclusion

 

89. It would be open to us now to refuse permission to appeal against the decisions of 14 November 2012 and 31 October 2013 but, since those decisions have raised points of law of some interest, we prefer to give permission.  However, we dismiss the appeals against those decisions and the decision of 12 June 2012 for the reasons we have given above.

 

90. We appreciate that this decision will be disappointing for the Appellant.  We recognise that she is desperately sad about losing her children and that she has also been greatly affected by a termination she had in 2004 about which she also told us.  We also accept that the state of the house may have been largely the fault of her husband on whom she is clearly very emotionally dependent.  However, there is clear evidence that she did not protect her children from the risk of harm and that they were neglected in a number of ways. In these circumstances, it would clearly not be appropriate for her to engage in regulated activity with other people’s children.

 

 

Signed on the original by the presiding judge

 

 

 

Mark Rowland

Judge of the Upper Tribunal

23 April 2015

 

 

Appendix - The Legislation

 

1. As in force at the time that the ISA made its decision on 2 June 2011, paragraphs 1 to 4 of Schedule 3, to the 2006 Act, relating to the children’s barred list, provided that –

 

1. (1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.E+W

  (2) If it appears to the Secretary of State that this paragraph applies to a person the Secretary of State must refer the matter to ISA.

  (3) On the reference being made, ISA must include the person in the children's barred list.

E+W

2. (1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.E+W

  (2) If it appears to the Secretary of State that this paragraph applies to a person the Secretary of State must refer the matter to ISA.

  (3) On the reference being made, ISA must—

(a) include the person in the children’s barred list;

(b) give the person the opportunity to make representations as to why he should be removed from the children's barred list.

  (4) If it appears to ISA that it is not appropriate for the person to be included in the list, it must remove him from the list.

 

3. (1) This paragraph applies to a person if—E+W

(a) it appears to ISA that the person has (at any time) engaged in relevant conduct, and

(b) ISA proposes to include him in the children's barred list.

  (2) ISA must give the person the opportunity to make representations as to why he should not be included in the children's barred list.

  (3) ISA must include the person in the children's barred list if—

(a) it is satisfied that the person has engaged in relevant conduct, and

(b) it appears to ISA that it is appropriate to include the person in the list.

  (4) …

  (5) …

 

4. (1) For the purposes of paragraph 3 relevant conduct is—E+W

(a) conduct which endangers a child or is likely to endanger a child;

(b) conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;

(c) conduct involving sexual material relating to children (including possession of such material);

(d) conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to ISA that the conduct is inappropriate;

(e) conduct of a sexual nature involving a child, if it appears to ISA that the conduct is inappropriate.

  (2) A person's conduct endangers a child if he—

(a) harms a child,

(b) causes a child to be harmed,

(c) puts a child at risk of harm,

(d) attempts to harm a child, or

(e) incites another to harm a child.

  (3) …

  (4) …

  (5) …

  (6) …”

 

2. Section 67 of the Protection of Freedoms Act 2012 made substantial amendments to paragraphs 1, 2, and 3 with effect from 10 September 2012.  In particular, paragraph 2 has been remodelled so that the person concerned is now given the opportunity to make representations before being included in the list and both that paragraph and paragraph 3 now require a person to be put on the children’s barred list only if he or she “is or has been, or might in future be, engaged in regulated activity relating to children”.  Thus paragraph 2 then provided –

 

“2. (1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.E+W

(2) If the Secretary of State has reason to believe that—

(a) this paragraph might apply to a person, and

(b) the person is or has been, or might in future be, engaged in regulated activity relating to children,

the Secretary of State must refer the matter to ISA.

  (3) Sub-paragraph (4) applies if (whether or not on a reference under sub-paragraph (2)) it appears to ISA that—

(a) this paragraph applies to a person, and

(b) the person is or has been, or might in future be, engaged in regulated activity relating to children.

  (4) ISA must give the person the opportunity to make representations as to why the person should not be included in the children's barred list.

  (5) Sub-paragraph (6) applies if—

(a) the person does not make representations before the end of any time prescribed for the purpose, or

(b) the duty in sub-paragraph (4) does not apply by virtue of paragraph 16(2).

  (6) If ISA—

(a) is satisfied that this paragraph applies to the person, and

(b) has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children,

it must include the person in the list.

  (7) Sub-paragraph (8) applies if the person makes representations before the end of any time prescribed for the purpose.

  (8) If ISA—

(a) is satisfied that this paragraph applies to the person,

(b) has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and

(c) is satisfied that it is appropriate to include the person in the children's barred list,

it must include the person in the list.”

 

3. Paragraphs 7 to 10 of Schedule 3 have at all times made provision in respect of the adults’ barred list that is similar to the provision made by paragraphs 1 to 4 in respect of children’s barred list.

 

4. At the time of his decision of 12 June 2012 not to remove the Appellant from the lists, paragraph 16 provided –

 

16. (1) A person who is, by virtue of any provision of this Schedule, given an opportunity to make representations must have the opportunity to make representations in relation to all of the information on which ISA intends to rely in taking a decision under this Schedule.E+W

  (2) Any requirement of this Schedule to give a person an opportunity to make representations does not apply if ISA does not know and cannot reasonably ascertain the whereabouts of the person.

  (3) The opportunity to make representations does not include the opportunity to make representations that findings of fact made by a competent body were wrongly made.

  (4) Findings of fact made by a competent body are findings of fact made in proceedings before the Secretary of State in the exercise of the Secretary of State’s functions under section 141B of the Education Act 2002, or in proceedings before one of the following bodies or any of its committees—

(a) …;

(b) the General Teaching Council for Wales;

(c) the Council of the Pharmaceutical Society of Great Britain;

(d) the General Medical Council;

(e) the General Dental Council;

(f) the General Optical Council;

(g) the General Osteopathic Council;

(h) the General Chiropractic Council;

(i) the Nursing and Midwifery Council;

(j) the Health Professions Council;

(k) the General Social Care Council;

(l) the Care Council for Wales.

(5)The Secretary of State may by order amend sub-paragraph (4) by inserting a paragraph or amending or omitting a paragraph for the time being contained in the sub-paragraph.”

 

5. Paragraph 18 provided for reviews after the minimum barred period but, from 10 September 2012, paragraph 18A was inserted by section 71 of the 2012 Act and provided –

 

“18A. (1) Sub-paragraph (2) applies if a person's inclusion in a barred list is not subject to—

(a) a review under paragraph 18, or

(b) an application under that paragraph,

which has not yet been determined.

  (2) ISA may, at any time, review the person's inclusion in the list.

  (3) On any such review, ISA may remove the person from the list if, and only if, it is satisfied that, in the light of—

(a) information which it did not have at the time of the person's inclusion in the list,

(b) any change of circumstances relating to the person concerned, or

(c) any error by ISA,

it is not appropriate for the person to be included in the list.”

 

6. At the time when the Appellant first submitted her appeal, section 4 of the 2006 Act provided –

 

 “4.–(1) An individual who is included in a barred list may appeal to the Upper Tribunal against—

(a) a decision under paragraph 2 or 8 of Schedule 3 not to remove him from the list;

(b) a decision under paragraph 3, 5, 9 or 11 of that Schedule to include him in the list;

(c) a decision under paragraph 17 or 18 of that Schedule not to remove him from the list.

  (2) An appeal under subsection (1) may be made only on the grounds that ISA has made a mistake—

(a) on any point of law;

(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

  (3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

  (4) An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.

  (5) Unless the Upper Tribunal finds that ISA has made a mistake of law or fact, it must confirm the decision of ISA.

  (6) If the Upper Tribunal finds that ISA has made such a mistake it must—

(a) direct ISA to remove the person from the list, or

(b) remit the matter to ISA for a new decision.

  (7) If the Upper Tribunal remits a matter to ISA under subsection (6)(b)—

(a) the Upper Tribunal may set out any findings of fact which it has made (on which ISA must base its new decision); and

(b) the person must be removed from the list until ISA makes its new decision, unless the Tribunal directs otherwise.

 

7. Paragraph 44 of Schedule 9 to the 2012 Act made amendments to section 4(1) of the 2006 Act in consequence of the amendments to Schedule 3 that came into force on 10 September 2012.  Paragraph (a) was omitted, references to paragraphs 2 and 8 of Schedule 3 were included in paragraph (b) and paragraph (c) was extended to the new paragraph 18A of the Schedule 3.  Only the last of those amendments is directly relevant to this case.

 

8. Transitional provisions relating to amendments made to the 2006 Act by the 2012 Act include articles 7 to 10 of the Protection of Freedoms Act 2012 (Commencement No.3) Order 2012 (SI 2012/2234), which provided at the time of the ISA’s decision of 14 November 2012 –

 

“7.  Articles 8 to 10 apply from 10th September 2012.

8.—(1) Any person who is on the children’s barred list or the adults’ barred list (within the meaning of section 2 of the 2006 Act …), at the time that section 67 of … the [2012] Act comes into force, may apply to ISA for a review of their inclusion in the children’s barred list or the adults’ barred list (as the case may) in the circumstances set out in paragraph (2).

  (2) The circumstances are that the person considers that ISA would not, if it were now considering whether to bar that person under paragraphs 2, 3, 5, 8, 9 or 11 of Schedule 3 to the 2006 Act …, as amended by section 67(2) to (4) and (6) to (8) of … the [2012] Act, have reason to believe that the person is or has been or might in future be engaged in regulated activity relating to children or vulnerable adults (as the case may be).

9.  On receiving an application under article 8, ISA must remove the person from the children’s barred list or the adults’ barred list (as the case may be) if it does not have reason to believe that the person has been engaged, or, on the date on which they were barred, might in the future be engaged in regulated activity relating to children or vulnerable adults (as the case may be).

10.  Section 4 of the 2006 Act and Article 8 of the 2007 Order apply to any decision of ISA not to remove a person from the children’s barred list or the adults’ barred list (as the case may be) under article 10 of this Order.”