Human rights or wrongs?

in Children

The High Court has just ruled that part of the legislation intended to prevent people convicted or cautioned for certain crimes from working with children or vulnerable adults breaches human rights law. Will this decision protect perpetrators of offences over those vulnerable individuals whose protection The Safeguarding Vulnerable Groups Act 2006 seeks?

The Act was introduced after the Soham murders and was designed to protect children and vulnerable adults by preventing those posing a known risk from gaining access to them through their work. There was no real dispute that the previous system had to be reviewed.  Formerly there were two barring lists relating to children, List 99 and the Protection of Children Act (POCA) list.  Furthermore, the CRB check only enabled the employer to gain knowledge of a person at the time of the application.

The main aims of the vetting and barring scheme are as follows:

(i) unsuitable individuals should be barred from working with children (or vulnerable adults);

(ii) employers should be able to check that a person is not barred from working with children (or vulnerable adults);

(iii) suitability checks should be an ongoing assessment of suitability to identify those who transgress following an initial suitability check.

The Act defines two types of activity relating to children or vulnerable adults, ‘regulated activity' and ‘controlled activity'.  Regulated activity covers the situations where a person has direct contact with the children or vulnerable adults, for example, teaching, social work, healthcare, counseling, guidance, and driving school buses. ‘Controlled activity' is activity that, although it gives some opportunity for contact with children or vulnerable adults, does not fall within the definition of regulated activity.

An individual who wishes to work with children or vulnerable adults must apply for a check following the procedure required by the Act.  Once a person applies for a check, information is collated about him. While this is in progress, the investigator may receive information from a variety of sources. The decision as to barring status will be made and communicated to the individual, and where appropriate, to his employer. A decision to bar can only be reviewed after a certain period of time.

The Act creates several offences.  For example, offences are committed by an individual who seeks or engages in regulated activity with children or vulnerable adults when either he is barred, or not subject to monitoring (ie he has not applied for a check). The system of automatically banning those convicted for or who admit certain crimes from working with children and vulnerable adults without allowing them to make representations breached their rights to a fair trial.

Earlier this year, complaints about the complexity of the system and bureaucratic problems had caused the Government to put the registration scheme on hold while to considered further action.  Now the High Court has ruled that the vetting and barring scheme may breach human rights.

In its recent judgment in the case of The Royal College of Nursing & Ors R v Secretary of State for the Home Department & Anor, the High Court said that the automatic banning from working with children and vulnerable adults of people convicted for, or admitting, certain crimes without allowing them to make representations breached their rights to a fair trial.

In this case the claimants were nurses. Two of them were the subject of police cautions for leaving their children at home unsupervised which they had accepted;  one claimant had been convicted of giving a child an unauthorised kiss; the was the subject of a disciplinary investigation into all allegation of drunkenness at work.

The first three had all been placed automatically on the barred list after accepting their cautions or being convicted.  After challenges had been made, their status was changed and their names removed from the barred lists, but only after months of being unable to work.

The claimants brought a successful claim saying that the vetting and barring scheme is contrary to Articles 6 (right to a fair trial) and 8 (right to private and family life) of the European Convention on Human Rights.  The scheme places a duty on the Independent Safeguarding Authority to automatically place individuals who have been convicted or cautioned for a wide range of offences on the barred lists.  Such individuals do not have the right to make representations before their names are listed.

In its defence, the Secretary of State argued that the potential consequences of not barring perpetrators of certain offences could lead to serious abuse.

Rejecting the defence's argument, the court said that  the lengthy delay between the offences being reported and the claimants' names appearing on the barred lists, suggested the scheme was not as fast or effective as it envisaged. Most importantly, the particular claimants in this case, who had been convicted of relatively minor offences, were the type of people who would suffer most from the automatic barring measures.

It will be interesting to see how this issue of balancing the right of vulnerable persons to be protected, against the rights of this caught in the vetting and barring legislation is tackled and we will await developments with interest.

Russell HR Consulting provides expert knowledge in the practical application of employment law as well as providing employment law training and HR support services. For more information, visit our website at www.russellhrconsulting.co.uk or call a member of the team on 0845 644 8955.

Russell HR Consulting offers HR services to businesses nationwide, including Buckinghamshire (covering Aylesbury, High Wycombe, Milton Keynes, Bedford, Banbury, Northampton, Towcester and surrounding areas), Nottinghamshire (covering Chesterfield, Mansfield, Nottingham, Sheffield, Worksop and surrounding areas) and Hampshire (covering Aldershot, Basingstoke, Reading, Farnborough, Fareham, Portsmouth, Southampton and surrounding areas).

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Kate Russell has 1 articles online

Kate Russell started Russell HR Consulting in 1998 and now divides her time between advising businesses of all sizes on HR issues, and delivering a range of highly practical employment law awareness training to line managers, including a range of public workshops. Her unique combination of legal background, direct line management experience and HR skills, enables Kate to present the stringent requirements of the law balanced against the realities of working life. She is a senior presenter for several companies and a popular public speaker. Kate completed an MA in strategic human resource management in 2004.

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This article was published on 2010/11/12