Child counsellor wins appeal against decision to include her name on children’s list

A sheriff allowed the appeal and ordered that her name be removed from the children’s list kept under section 1 of the Protection of Vulnerable Groups (Scotland) Act 2007.

Sheriff George Jamieson heard that the pursuer, referred to as “LG”, 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.

She applied to the local authority to be the kinship carer for her nephew, now aged 13, and her niece, now aged 16, and as part of the application process she required to obtain a disclosure certificate from Disclosure Scotland, acting on behalf of the defenders, the Scottish Ministers.

In considering that request Disclosure Scotland took the decision to list the pursuer for inclusion in the children’s list, which meant that the council could no longer proceed with the pursuer’s application for her to be the kinship carer for her nephew and niece.

The pursuer then returned to England but because of the defenders’ decision to include her in the children’s list she was prevented from working with children in her employment, which she argued was “unduly restrictive” as she wished to resume her role as a child counsellor.

She was able to return to England with her niece who was discharged from the kinship care process as she had turned 16 and was able to make the decision to accompany her aunt of her own accord, though her father did agree to her making the move to England.

The pursuer’s nephew was later returned to her brother’s care, but 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.

She had convictions for offences of dishonesty and domestic abuse and served periods in prison in England for these offences, as set out in her disclosure of previous convictions, but despite her history of offending she was not considered unsuitable to work with children and 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.

The pursuer therefore appealed against the defenders’ decision to include her in the children’s list.

Allowing the appeal, the sheriff ruled that the pursuer was suitable to work with children and directed in terms of section 21(3)(b) of the 2007 Act that the defenders remove her from the children’s list.

In a written judgment, Sheriff Jamieson said: “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.

“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.

“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.

“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; 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.”