Introduction

The case of A v Disclosure and Barring Service ([2025] EWCA Civ 124) revisits the application and scope of the "regulated activity" test under the Safeguarding Vulnerable Groups Act 2006 (“SVGA”). Central to the dispute is whether an appellant, A—whose identity is anonymised—should be removed from the Children’s Barred List (“CBL”) despite assertions that he neither currently engages nor intends to engage in regulated activity with children.

A, who has a history of convictions (including a conviction for a sexual offence from 2009 and another for sexual assault in 2012) and a record of previous engagement with rehabilitation schemes, contends that the test for "regulated activity" (as set out in Schedule 4 of the SVGA) is not fulfilled since there is no concrete evidence that he will pursue a role involving close, regular contact with children. In contrast, the Disclosure and Barring Service (DBS) argues that the evidence—a combination of past behavior, inconsistent future intentions, and even the acquisition of a Level 1 Football Coaching qualification—justifies retaining his inclusion in the CBL.

The proceedings advanced from an Upper Tribunal (UT) decision, which upheld the DBS’s findings, to an appeal before the Court of Appeal. The appellant’s arguments center on the claim that the DBS erroneously applied the “might in the future” test by reading future intentions too broadly and in effect punishing him for historical conduct, despite his rehabilitation.

Summary of the Judgment

The Court of Appeal ultimately dismissed the appellant’s appeal. It confirmed that the UT had not erred in concluding that the DBS’s comprehensive and holistic approach to risk assessment—including an evaluation of the possibility that A may, in the future, engage in regulated activity—was sound. Although A highlighted his claim of changed circumstances, his inconsistent evidence, particularly regarding his intentions with respect to football coaching, failed to persuade the Court that the DBS had made any mistake of fact or law.

In reaching its decision, the Court of Appeal reaffirmed that the statutory framework in the SVGA authorizes the DBS to make decisions based not solely on past conduct, but also on what a person “might in the future” do. Consequently, with no demonstrable error in the DBS’s use of evidence and no mistake in the application of the relevant legal tests, the Court upheld the retention of A’s name on the CBL.

Analysis

Precedents Cited

The judgment refers to several leading cases and procedural guidelines that have influenced its approach:

• AB v DBS [2021] EWCA Civ 1575: This case was cited regarding the appropriate deference that tribunals must afford the specialist decision-makers. The Court reiterated that an adverse credibility finding, especially on matters of future intent, is within the remit of the specialist body.
• DBS v RI [2024] EWCA Civ 95: In reinforcing the limits of appellate review, particularly on factual findings, the judgment underscores the principle that appellate bodies do not re-weigh the entire evidentiary matrix but rather assess whether any error of law has occurred.
• Kihembo [2023] EWCA Civ 1547: The reference to guidance from the Presidential Panel of the Upper Tribunal in PF [2020] UKUT 256 (AAC), affirmed in Kihembo, supports a careful distinction between reviewing raw evidence versus reviewing the conclusions drawn from that evidence.

Legal Reasoning

The court’s reasoning prominently features an analysis of the “might in the future” test inherent in the provisions of the SVGA. The legal reasoning can be broken down as follows:

• Holistic Evidence Evaluation: The DBS is entitled to consider a broad range of factors, including an individual’s past misconduct, rehabilitation efforts, and even indications (such as obtaining a coaching qualification) regarding potential future conduct. The UT reasonably concluded that even if A’s current intentions might appear minimal, his past behavior, inconsistent evidence about future intentions, and the statutory objective of safeguarding vulnerable groups justified his continued inclusion in the CBL.
• Deference to Specialist Decision-Makers: The Court of Appeal noted that the UT had not limited its review to the evidentiary record before the DBS. Instead, it examined A’s oral testimony, supporting documentary evidence, and other submissions. The appellate court was careful to stress that it does not re-assess factual determinations unless they are so manifestly unreasonable that no rational tribunal could have reached them.
• Application of Proportionality: In balancing the risk to children against the potential impact upon A’s rights (including his Article 8 rights under the ECHR), the UT took a balanced view. It recognized the significance of rehabilitation but ultimately decided that the risk—particularly considering the potential for harm if A were to “minimally” engage again—outweighed the personal inconvenience or stigmatization associated with remaining on the CBL.

Impact on Future Cases

This judgment is poised to have significant implications for future cases involving the assessment of risk concerning regulated activity. Key impacts include:

• Clarification of the "Might in the Future" Test: The decision confirms that evidence of obtaining qualifications, even if not accompanied by an application for a specific role, can be interpreted as an indication of possible future involvement in regulated activity.
• Reinforcement of Appellate Deference: Future appellants in safeguarding cases may be limited in their ability to challenge factual determinations made by specialized tribunals, reinforcing the deference given to agencies like the DBS.
• Enhanced Emphasis on Holistic Risk Analysis: Decision-makers are encouraged to continue using a comprehensive, holistic approach that balances rehabilitation progress with the potential risk of harm, keeping in mind that safeguarding is prioritized even if the evidentiary threshold for predicting future conduct is necessarily low.

Complex Concepts Simplified

In order to clarify some of the intricate legal concepts addressed in the Judgment, below is a simplified explanation of the key terminologies:

• "Regulated Activity": This refers to activities that involve teaching, training, or instructing children on a regular basis, typically under conditions that require heightened safeguarding measures. Under the SVGA, even a potential future involvement in such activities can trigger automatic listing if risk criteria are met.
• "Might in the Future" Test: Essentially, this is an evaluative mechanism that assesses whether an individual, on the balance of probabilities, may engage in regulated activity. The test does not require definitive evidence of future intent beyond speculation; rather, it is enough that there is a reasonable basis (for example, previous qualifications or expressed interest) to believe that such activities could resume.
• “Period Condition”: This is a statutory requirement (as explained in Schedule 4 of the SVGA) stipulating that if a person engages in the relevant activity on more than three occasions in any 30-day period, they may be deemed to have fulfilled a condition for engaging in regulated activity.

Conclusion

In conclusion, the judgment in A v DBS ([2025] EWCA Civ 124) represents a robust defense of the holistic risk assessment methodology employed by the DBS. By affirming that an individual’s past behavior in conjunction with prospective indicators—such as the acquisition of a coaching qualification—suffices to meet the statutory threshold for regulated activity, the Court of Appeal reinforces a key safeguarding principle. The ruling underscores the balance between rehabilitation efforts and the overarching imperative to protect vulnerable groups, placing a premium on preventing even a minimal risk of harm to children.

For legal practitioners and public bodies, the case serves as a compelling precedent on how future intent may be assessed, clarifying that decisions made under the SVGA must be informed by a reasonable prediction of future risk, while still allowing room for the acknowledgment of demonstrated efforts at rehabilitation. This reinforces the legitimacy of the DBS’s practice and signals caution to those who might argue that a solely historical offense record should be decoupled from forward-looking risk analysis.