LG AGAINST THE SCOTTISH MINISTERS

---

2015SCDUM68

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

 

JUDGMENT

(Section 50, Sheriff Courts (Scotland) Act 1907)

of

SHERIFF GEORGE JAMIESON

in summary application B89/15

 

L. G.

PURSUER

against

THE SCOTTISH MINISTERS

DEFENDERS

 

Dumfries                                             22 May 2015

Act: Bryce                                           Alt: Whyte

The sheriff, having resumed consideration of the summary application, finds the following facts proved or admitted:

1. The pursuer relocated from England to Scotland after her brother had voluntarily placed his children into the care of Dumfries and Galloway Council under section 25 of the Children (Scotland) Act 1995.
2. She applied to Dumfries and Galloway Council to be the kinship carer for her nephew, now aged 13, and her niece, now aged 16. As part of that application process she required to obtain a disclosure certificate from Disclosure Scotland acting on behalf of the Scottish Ministers. In considering that request Disclosure Scotland took the decision to list the pursuer for inclusion in the children’s list kept by the Scottish Ministers under section 1 of the Protection of Vulnerable Groups (Scotland) Act 2007. In consequence of this decision, Dumfries and Galloway Council could no longer proceed with the pursuer’s application for her to be the kinship carer for her nephew and niece.
3. The pursuer returned to England but because of the defenders’ decision to include her in the children’s list she has been prevented from working with children in her employment as a counsellor. She finds this unduly restrictive and wishes to resume her role as a child counsellor.
4. She was able to return to England with her niece who was discharged from the kinship care process and as she was by then 16 and able to make the decision to accompany her aunt of her own accord. Her father did however agree to her making the move to England.
5. Her nephew has now been returned to her brother’s care. In the event he was returned to care, she would be precluded from acting as his kinship carer while she remains included on the children’s list.
6. She has convictions for offences of dishonesty and has served periods in prison in England for these offences as set out in her disclosure of previous convictions at 5/2 of process.
7. The defenders’ written reasons for listing the pursuer are set out in their letter to her at 5/1 of process.
8. The pursuer is not unsuitable to work with children.

 

THEREFORE Allows the appeal; Directs the defender to remove the pursuer from the children’s list kept by them under section 1 of the Protection of Vulnerable Groups (Scotland) Act 2007; Finds the defenders liable to the pursuer in the expenses of the action as taxed; Allows the pursuer to put in an account of those expenses; Remits to the Auditor of Court to tax and report thereon.

Sheriff George Jamieson

NOTE

Issue - Unsuitable to work with children

• [1]The defenders must include an individual in the children’s list if, after considering whether to do so, they are satisfied by information relating to the individual’s conduct that the individual is unsuitable to work with children[1].
• [2]Inclusion in the list bars the individual from regulated work and organisations from employing the individual barred from that work[2]. Contravention of the bar by the individual or organisation is an offence punishable, in the case of an individual, by imprisonment for up to five years on indictment, a fine, or both[3]. The regulated work with children which an individual on the children’s list is barred from undertaking is set out in schedule 2 to the Protection of Vulnerable Groups (Scotland) Act 2007 and includes work activities such as caring for or teaching children, working in a school or children’s home, or holding various positions such as being a children’s panel member or foster carer.
• [3]By virtue of extended definitions of “work” and “foster carer” contained in the Protection of Vulnerable Groups (Scotland) Act 2007, the pursuer’s listing prevented her from becoming a kinship carer for her nephew and niece under the Looked after Children (Scotland) Regulations 2009[4]. By reciprocal provision, inclusion on the Scottish list results in the pursuer also being barred in England from regulated activity relating to children under the provisions of the Safeguarding Vulnerable Groups Act 2006[5].

  Appeal
  The pursuer appeals in this summary application against the defenders’ decision to include her in the children’s list[6].

   

  Scope of Appeal
  In England, the equivalent appeal lies to the Upper Tribunal and is restricted to what might be termed “judicial review” grounds”[7].

• [4]Parties were agreed that in contradistinction to the position in England an appeal to the sheriff was by way of a rehearing. I was therefore not concerned in this appeal with the process by which the defenders reached their decision, or its reasonableness. The question whether the pursuer was suitable to work with children was at large for me to decide, taking into account the defenders’ reasons for their decision.

   

  Evidence

• [5]The pursuer and two social workers gave the evidence from which I have made findings in fact numbers 1 – 7. This was not particularly contested. The pursuer accepted her previous convictions and suggested these were mainly due to domestic abuse and the undue influence on her of her abuser. However, she acknowledged her first conviction was due to greed only. While I had no reason to doubt the sad history of domestic abuse in her life, her dishonest offending was not in my opinion inevitable. Social worker SB said the pursuer had never tried to hide her offending or put what she had gone through as an excuse for it. Nonetheless, the pursuer has not offended for six years. She has got her life together and is free from the domestic abuse in her past. She was holding down her current job before relocating to Scotland in her now failed attempt to act as the kinship carer for her nephew and niece. Despite her history of offending she was assessed as suitable for and capable of acting in that role by the social workers, had it not been for her inclusion on the children’s list.
• [6]She developed a particularly close bond with her niece, so much so her niece has elected to live with her aunt in England. There was no suggestion the pursuer had been barred from regulated activity in England by the Disclosure and Barring Service under the provisions of the Safeguarding Vulnerable Groups Act 2006 because of her convictions.

   

  Decision

• [7]The defenders were particularly concerned about the pursuer’s offending. Although it does not directly relate to children, it is relevant conduct for their consideration when a person is referred to them for possible inclusion on the children’s list[8]. In my opinion they properly took it into account in making their decision. However, while in my assessment it makes the pursuer unsuitable to work with children in positions requiring financial trust, it does not in my assessment do so in relation to work such as acting as a kinship carer, for which she was assessed as suitable by the social workers, or in her present job, in which she regularly counselled children prior to her listing by the defenders without apparent objection by her employers or intervention by the Disclosure and Barring Service. The listing in both jurisdictions is “all or nothing”; neither the defenders nor the court can pick and choose what types of regulated work she should be barred from doing. She is either included on the Scottish list or she is not.
• [8]In deciding whether she is suitable to work with children, I consider the court should look to the reality of the type of work she wants to do, such as being a kinship carer or child counsellor. She is suitable for this type of work. She does not present any risk of physically harming children on the evidence available to the court. She has limited scope, if any, for embezzling children’s money in this type of work. Her current employers have been willing to employ her notwithstanding her convictions.
• [9]Any decision that she should be listed on the children’s list should be a proportionate interference with her right to respect for her private life under article 8 of the ECHR[9]; in the circumstances of this case, I do not think that applies in respect of a decision to include the pursuer on the children’s list; the public interest, in preventing her from being a teacher, social worker or care home operator, for example, will in my opinion adequately be protected by the legislation requiring persons to be fit for those positions.
• [10] I am accordingly of the opinion the pursuer is suitable to work with children and I therefore allow her appeal and direct in terms of section 21(3) (b) of the Protection of Vulnerable Groups (Scotland) Act 2007 that the defenders remove her from the children’s list.

 

Expenses
The defenders conceded the pursuer would be entitled to expenses in the event the appeal succeeded. They would not have sought expenses had it failed.