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Judicial Summary

The Disclosure and Barring Service (DBS) included the appellant on the adults鈥� barred list pursuant to paragraph 9 of Schedule 3 to the Safeguarding of Vulnerable Groups Act 2006 (SVGA 2006) because she had had two of her own children removed from her care by the Family Court. The Upper Tribunal concludes that the only lawful decision on the evidence was that the appellant should not be included in the barred list and directs her removal. The Upper Tribunal held that DBS made a mistake of law in concluding that the appellant had engaged in 鈥渞elevant conduct鈥�. 鈥淐onduct鈥� refers to behaviour or actions, not to human features such as personality traits, learning difficulties, medical conditions, or to other people鈥檚 concerns or opinions; nor does it refer to what may have been done to that person in the past (by their own parents or abusive partners) that might render them more or less likely to conduct themselves inappropriately towards others in future. In this case, the only potential 鈥渞elevant conduct鈥� of the appellant was her failure to leave her abusive ex-partner in order to care for her first child on her own. The Upper Tribunal held that that was not conduct that was capable of being repeated against a vulnerable adult so as to constitute relevant conduct within the meaning of paragraph 10(1)(b) of Schedule 3 to the SVGA 2006. Further, or alternatively, it was disproportionate to bar the appellant because the risk she poses as a result of her history of relationships with abusive partners is a risk that only arises in personal and family contexts, which (by virtue of section 58 of the SVGA 2006) are not regulated activities. There was therefore no rational connection between the objective of the barring scheme and the barring decision in this case; the risk she posed could be addressed by less intrusive measures; and barring the appellant struck the wrong balance between her private rights and the objectives of the barring scheme.