Clarke v Secretary of State

Factual and Procedural Background

The Applicant applied under section 4A of the Protection of Children Act 1999 for an order directing the removal of her name from the list of individuals considered unsuitable to work with children, maintained by the Respondent under section 1 of the Act. Removal from this list would also result in removal from List 99, which includes individuals subject to employment restrictions related to working with children.

The application required leave of the Tribunal under section 4B, which was formally granted after the Tribunal found that the Applicant's name had been on the list for over ten years, she had made no previous applications in that period, and her circumstances had changed sufficiently to merit leave.

The Applicant's name was originally placed on the list following findings at a disciplinary hearing related to her conduct while employed at a residential home for vulnerable children, where she was found to have assisted a child to abscond and engaged in unprofessional conduct. The disciplinary hearing took place after a prolonged investigation, during which the Applicant had already ended her employment and did not attend the hearing.

Subsequently, the Applicant made an unsuccessful appeal attempt in 2004 and later exercised her statutory right in 2011 to apply for removal from the list. The Tribunal heard the application following directions and preparatory steps.

Legal Issues Presented

1. Whether the Applicant is no longer unsuitable to work with children, such that her name should be removed from the list maintained under the Protection of Children Act 1999.
2. Whether the Applicant's circumstances have sufficiently changed since her inclusion on the list to justify granting leave to apply for removal under section 4B of the Act.
3. The burden of proof lies on the Applicant to demonstrate, on the balance of probabilities, that she is no longer unsuitable to work with children.

Arguments of the Parties

Applicant's Arguments

• The Applicant contended that over the approximately 14 years since the incidents, she has matured and gained insight and understanding, particularly through raising her two children.
• She asserted that she would not repeat the mistakes made during her employment at the residential home.
• The Applicant emphasized that she does not wish to return to work with children but is restricted in her parental role by her inclusion on the lists, particularly in voluntary activities involving children.

Respondent's Arguments

• The Respondent, represented by counsel, did not oppose the granting of leave for the application but highlighted that the burden of proof rests on the Applicant to show she is no longer unsuitable.
• Evidence from a safeguarding official expressed reservations about the Applicant’s insight and empathy, suggesting her name should remain on the lists.
• The Respondent’s witness relied on findings from the disciplinary hearing, particularly the Applicant’s persistence in promoting inappropriate relationships and contravening policies despite alleged warnings.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Tribunal acknowledged that this was the first case under section 4A of the Protection of Children Act 1999 and that the statutory test was straightforward: whether the individual is no longer unsuitable to work with children. The burden rested on the Applicant to prove this on the balance of probabilities.

The Tribunal reviewed the background circumstances, including the serious misconduct found at the disciplinary hearing, but noted the Applicant’s lack of experience, absence of induction or supervision, and a workplace culture lacking firm boundaries at the time.

While recognizing the gravity of the Applicant's complicity in a child absconding, the Tribunal found significant mitigating factors relating to the Applicant’s youth, inexperience, and the environment.

The Tribunal considered evidence from the safeguarding official who was initially unconvinced of the Applicant's changed circumstances but ultimately found the Applicant’s oral evidence persuasive, particularly her expressions of insight and empathy developed through parenting and maturity gained over time.

The Tribunal emphasized that the test does not require certainty that the Applicant will avoid future mistakes but requires a balance of probabilities assessment of continuing unsuitability. The Tribunal found the Applicant had sufficiently changed and was no longer unsuitable to work with children.

Holding and Implications

The Tribunal directed that the Applicant's name be removed from the list kept by the Respondent under section 1 of the Protection of Children Act 1999, which also results in automatic removal from List 99.

The direct effect of this decision is that the Applicant is no longer legally barred from working with children. No broader legal precedent was established, as this was the first application under section 4A and the decision was fact-specific.

The Tribunal also maintained a Restricted Reporting Order to protect the identity of any child involved in the proceedings.