‘We are satisfied that you meet the criteria for regulated activity. This is because you worked as a Midday Supervisor with [] PRIMARY AND NURSERY SCHOOL. We have considered all the information we hold and are satisfied of the following: - in April 2021, you abused your son, H, by causing bruising and scratches to his face; - you failed to inform your employer that you were subject to a Social Services Plan. Having considered this, DBS is satisfied you engaged in relevant conduct in relation to children. This is because you have engaged in conduct which endangered a child or was likely to endanger a child. We are satisfied a barring decision is appropriate. This is because it is clear from the case material that you have assaulted your son. You stated that you were going through a difficult time at home with your son H who was getting violent at home. When asked about the allegation of assaulting H, you alleged that it was H being violent to you and in stopping him punching and kicking you he sustained a bruise and scratch to the right hand side of his face. Clearly this is concerning. You have demonstrated no regard for your son and the physical and emotional harm that you have caused him. There is no evidence to suggest an understanding from you of the impact of your actions. As a result, there is also no evidence of remorse being shown towards your son. It is also clear from the case material that you have attempted to cover up your actions, failing to notify your employer, [] Primary and Nursery School. It was stated by Social Services that the case went into Section 47 on07/02/2021 which ended on15/02/2021 however you failed to notify the school this despite being aware that this was a requirement of your contract of employment. It is acknowledged that these issues arose within the domestic setting and your actions were against your own child. There is no evidence to suggest that these actions have been carried out whilst you were working within regulated activity and nothing similar has been reported. However, you have failed to demonstrate any understanding of the harm that you have caused your child both physically or emotionally. You believe that physical chastisement is acceptable and that you are justified to carry this out. There is a risk that, if presented with challenging behaviour in regulated activity from a child, you would react in a similar manner. There are also concerns that you would fail to report any similar behaviours by others or intervene as you are of the belief that these behaviours are a justifiable way to treat children. It is recognised that a decision to place you on the Children's Barred List will interfere with your Article 8 rights and have a significant impact on your future employment opportunities given that you have previously worked as a Midday Supervisor at [] Primary and Nursery School. As a result, there may be a detrimental impact on your earning potential through the reduction in employment opportunities which may have an adverse impact on your standard of living. It is also accepted that inclusion in the Children's Barred List will limit the opportunities for you to be involved in voluntary work and may restrict the types of hobbies and pastimes you can be involved in as well as potentially having a negative stigma associated with it. A safeguarding decision however must take into account not only the rights of the referred individual but also those of the vulnerable groups who may be at risk of harm. Given the potential risk of physical and emotional harm that you pose, it is both appropriate and proportionate to place you in the Children's Barred List.’
‘(i) in April 2021, you abused your son, H, by causing bruising and scratches to his face; (ii) you failed to inform your employer that you were subject to a Social Services Plan.’
‘I consider the Disclosure and Barring Service have made an error as my children remain in my care. At the time of the incident relating to my son I was employed at his school as a midday supervisor therefore they were notified of the incident and suspended me from my role before dismissing me. My children have remained in my care and there has been no further incidents regarding physical harm and non-prior, this is an isolated incident. I do not feel that full information has been shared with yourselves as I restrained my son whilst he became physically challenging towards me, I did this to prevent him hurting himself and myself further. My younger daughter was also present and I felt I needed to act to safeguard her also. I dispute the findings of the medical advisor relating to non-accidental injuries to my son. I am passionate about working with young people and this is an area in which I want to continue to work in and request I am able to continue to work with children and young people.’
“18 …A point of law…includes a challenge on Wednesbury grounds and a human rights challenge. But it will not otherwise entitle an applicant to challenge the balancing exercise conducted by the ISA [ now DBS ] when determining whether or not it is appropriate to keep someone on the list. In my view that is plain from traditional principles of administrative law but in any event it is put beyond doubt by section 4(3) which states in terms that the decision whether or not it is appropriate to retain someone on a barred list is not a question of law or fact. It follows that an allegation of unreasonableness has to be a Wednesbury rationality challenge i.e. that the decision is perverse.”
“23.I would accept that the ISA must give sufficient reasons properly to enable the individual to pursue the right of appeal. This means that it must notify the barred person of the basic findings of fact on which its decision is based, and a short recitation of the reasons why it chose to maintain the person on the list notwithstanding the representations. But the ISA is not a court of law. It does not have to engage with every issue raised by the applicant; it is enough that intelligible reasons are stated sufficient to enable the applicant to know why his representations were to no avail.”
‘We therefore reject the argument that our jurisdiction is limited to what is often termed Wednesbury unreasonableness – that the actions of ISA are so unreasonable that no reasonable body of a similar nature could have reached that decision. The Upper Tribunal will have in all cases the duty to ensure that proper findings of fact are made. This will include both considering any alleged factual errors in the ISA decision and also whether ISA has both identified all relevant evidence and given an appellant a chance to make representations on all relevant evidence. Conversely ISA must ignore irrelevant evidence. In cases of dispute it will be for the Upper Tribunal (and of course the courts on further appeal) to indicate what is relevant.’
‘28.I agree with the observation that there is no longer any point of legal principle raised by this appeal which requires determination by the court, but I do not accept that the parties are in agreement as to the interpretation and scope of the mistake of fact jurisdiction. Far from it. In their further supplementary skeleton argument on behalf of RI Mr Kemp and Mr Gillie write:- "The Upper Tribunal is entitled to make a finding that an appellant's denial of wrongdoing is credible, such that it is a mistake of fact to find that she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS based its decision. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal)." 29.That is in my view an accurate description of the mistake of fact jurisdiction and corresponds with the guidance given by the Presidential Panel of the Upper Tribunal in PF, approved by this court in Kihembo.’
‘43. By way of preliminary observation, the role of the Upper Tribunal on considering an appeal needs to be borne in mind. The Act is intended to ensure the protection of children and vulnerable adults. It does so by providing that the DBS may include people within a list of persons who are barred from engaging in certain activities with children or vulnerable adults. The DBS must decide whether or not the criteria for inclusion of a person within the relevant barred list are satisfied, or, as here, if it is satisfied that it is no longer appropriate to continue to include a person's name in the list. The role of the Upper Tribunal on an appeal is to consider if the DBS has made a mistake on any point of law or in any finding of fact. It cannot consider the appropriateness of listing (see section 4(3) of the Act). That is, unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity with children or vulnerable adults, is a matter for the DBS. 55. Section 4(7) of the Act provides that where the Upper Tribunal remits a matter to the DBS it “may set out any findings of fact which it has made (on which DBS must base its new decision)”. It is neither necessary nor feasible to set out precisely the limits on that power. The following should, however, be borne in mind. First, the Upper Tribunal may set out findings of fact. It will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to a marriage being a "strong" marriage or a "mutually-supportive one" may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third "finding" would certainly not involve a finding of fact. Secondly, an Upper Tribunal will need to consider carefully whether it is appropriate for it to set out particular facts on which the DBS must base its decision when remitting a matter to the DBS for a new decision. For example, an Upper Tribunal would have to have sufficient evidence to find a fact. Further, given that the primary responsibility for assessing the appropriateness of including a person in the children's barred list (or the adults’ barred list) is for the DBS, the Upper Tribunal will have to consider whether, in context, it is appropriate for it to find facts on which the DBS must base its new decision.’
‘The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.’
‘you failed to inform your employer that you were subject to a Social Services Plan. … It is also clear from the case material that you have attempted to cover up your actions, failing to notify your employer, [] Primary and Nursery School. It was stated by Social Services that the case went into Section 47 on07/02/2021 which ended on15/02/2021 however you failed to notify the school of this despite being aware that this was a requirement of your contract of employment.’
‘you failed to inform your employer that you were subject to a Social Services Plan. … It is also clear from the case material that you have attempted to cover up your actions, failing to notify your employer, [] Primary and Nursery School. It was stated by Social Services that the case went into Section 47 on07/02/2021 which ended on15/02/2021 however you failed to notify the school this despite being aware that this was a requirement of your contract of employment.’