Sections 1- 4: Department of Health List
11.Section 1 imposes a duty on the Secretary of State to establish a list of people who are considered unsuitable to work with children; provides that the new list should comprise fresh names and names taken from the existing, administrative list (the Consultancy Service Index); and confers a power to remove names.
12.Section 2 specifies the procedure and the criteria for inclusion on the new statutory list. Whilst child care organisations (as defined in section 12) must refer eligible names, it will be permissible for other organisations also to make references. All references fall to be treated in the same way regardless of whether they are compulsory or permissive. Thus:
Subsection (1) requires “child care organisations”, and permits any other organisation, to refer to the Secretary of State for possible inclusion on the list certain individuals who are or have been employed in child care positions, provided the conditions in subsections (2) or (3) are fulfilled.
“child care organisation” is defined in section 12(1) to mean an organisation –
(a)which is concerned with the provision of accommodation, social service or health care services to children or the supervision of children;
(b)whose activities are regulated by or by virtue of any prescribed enactment; and
(c)which fulfils such other conditions as may be prescribed.
(It should be noted that this definition includes organisations which may be licensed or controlled under a prescribed enactment.)
“child care position” is defined to mean a position which –
(a)is concerned with the provision of accommodation, social services or health care services to children or the supervision of children; and
(b)is such as to enable the holder to have regular contact with children in the course of his duties; and
(c)is not in a position within subsection (3) below…..
As defined in subsection (2), the first of the alternative conditions which have to be satisfied for individuals to be eligible for referral for listing are that they have been dismissed, transferred or suspended on the grounds of misconduct (whether or not in the course of their employment) which harmed a child or placed a child at risk of harm, or who would have been dismissed, or who would have been considered for dismissal, on such grounds had they not resigned or retired.
Subsection (3) provides a further set of criteria which may trigger a referral. Pursuant to the subsection a referral should or may be made where the organisation has dismissed the individual, he has resigned or retired, or the organisation has transferred him to a position within the organisation which is not a child care position; that information not available to the organisation at the time of the dismissal, resignation, retirement or transfer has since become available; and that the organisation has formed the opinion that, if the information had been available at the time and if (where applicable) the individual had not resigned or retired, the organisation would have dismissed him, or would have considered dismissing him, on the grounds of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm.
Subsections (4) – (8) set out how references are to be received and determined, including provisionally. The Secretary of State, after inviting observations from appellants and relevant employers, and after considering all the relevant information before him, must confirm an individual’s inclusion on the list if he is of the opinion both that the referring organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of employment) and that the individual is unsuitable to work with children.
Subsection (9) applies the effect of section 2 with appropriate modifications in the case of references from employment agencies and agencies for the supply of nurses.
Subsection (10) provides that child care organisations will not be under a duty to refer cases where the dismissal, resignation, retirement or suspension took place prior to the commencement of section 2. It also provides that the obligation will not arise in relation to referrals made under subsection 2(3) where the opinion which triggers a referral was formed before the commencement of section 2.
13.Section 3 provides for the transfer of names from the existing Consultancy Service Index to the new statutory list created by section 1. Essentially, it applies the effect of section 2 to persons listed in the Consultancy Service Index.
14.Section 4 provides for appeals against inclusion on the list
Subsection (1) provides that, except for those included provisionally, appeal from decisions of the Secretary of State should lie to the Tribunal and, with the leave of the Tribunal, against decisions made under section 1(3) not to remove a name from the list;
Subsection (2) provides that, where an individual has been provisionally included on the list under section 1 for more than nine months, they may – with the leave of the Tribunal and subject to subsection (5) – have the issue of their permanent inclusion determined by the Tribunal rather than by the Secretary of State under section 2;
Subsection (3) provides that the Tribunal must either allow appeals against inclusion on the list, or determine the matter in the individual’s favour if it is not satisfied that the individual is guilty of the misconduct as alleged, or that the individual is unsuitable to work with children, or confirm the Secretary of State’s decision or direct that the individual should be included in the list if they are;
Subsection (4) provides that no finding of fact in a criminal court in the case of a relevant conviction may be challenged before the Tribunal. The reason for this is to prevent both attempts to revisit criminal trials at an inappropriate hearing and the expense and delay that could be caused by allowing such attempts;
Subsections (5) and (6) specify that, for the purposes of applications for leave under subsection (2), no application may be made where the alleged misconduct is subject to any civil or criminal proceedings until six months after the determination of those proceedings. This is to allow reasonable time for the Secretary of State to consider whether, in the light of the proceedings, the name should be included in the list under section 2.