CXZ v Children’s Guardian

1. [1]

   BASTEN JA: On 1 October 2014 the applicant applied to the Children’s Guardian for a “working with children check clearance” pursuant to s 13 of the Child Protection (Working with Children) Act 2012 (NSW) (“Child Protection Act”). On 2 December 2016 the Children’s Guardian wrote to the applicant advising him that his application had been refused. Pursuant to s 18(2) of the Child Protection Act, the Children’s Guardian must grant a clearance unless satisfied that the person poses a risk to the safety of children. Having undertaken a risk assessment, pursuant to s 15(1) of the Child Protection Act, the Guardian expressed his satisfaction that the applicant posed a risk to the safety of children. He gave the applicant reasons for that decision.

2. [2]

   On 3 January 2017 the applicant filed an application for review in the NSW Civil and Administrative Tribunal (“NCAT”). Twenty grounds were listed in the application. On 14 February 2018 NCAT set aside the decision of the Children’s Guardian and substituted a decision to grant the applicant a working with children check clearance. [1]

3. [3]

   On 14 March 2018 the Children’s Guardian filed an appeal in the Common Law Division. The appeal was heard by Walton J in November 2018, judgment being delivered on 22 August 2019. [2] The judge upheld the appeal; on 30 August 2019 orders were made setting aside the decision of NCAT and remitting the matter to NCAT to be determined according to law.

4. [4]

   Rather than have the matter reconsidered on remittal, the applicant sought to challenge the orders made by Walton J. The applicant required leave to appeal and, on 22 November 2019, filed a summons seeking leave. The draft notice of appeal accompanying the summons contained the following four grounds:

5. [5]

   In his submissions in reply, the applicant contended that the questions in the proposed appeal (which was set down for hearing concurrently with the leave application) were as follows:

6. [6]

   Unless the case involves (i) an issue of principle, or (ii) an error which is more than merely arguable, or (iii) there is otherwise an apparent miscarriage of justice, it is inappropriate to grant leave to appeal. [3]

7. [7]

   In my view no issue of principle is raised for the following reasons.

8. [8]

   With respect to error, there was no challenge to the application of that test by the trial judge, on the assumption that it was the applicable test. Indeed, it is tolerably clear that NCAT did not adopt that approach but, with respect to at least some of the allegations, contented itself with the finding that it could not be satisfied that the misconduct occurred as alleged. It did not suggest that the conduct, if it did occur, would have been irrelevant to the exercise to be undertaken under s 18(2), nor did it express itself to be satisfied that the allegations were entirely groundless or without substance. There was therefore no clear error or miscarriage.

9. [9]

   There is a further reason for refusing leave, based on the limited material before the primary judge. The judge noted:

10. [10]

    If it were necessary for this Court to be satisfied that the primary judge had erred in the application of relevant principles, or that there had been a miscarriage of justice, the absence of the material referred to in the allegations would prevent this Court from assessing such matters. It appeared that the material available in this Court was even more limited than that available to the primary judge.

11. [11]

    Although in these circumstances the appropriate course is to refuse leave to appeal, in deference to the submissions for the applicant, it is appropriate to give some further explanation in relation to the proposed issue of principle.

Manner of assessing risk to safety of children

1. [12]

   The manner in which the law deals with the assessment of future risk depends in part on the source of the risk. Three examples are helpfully demonstrated by three decisions of the High Court determined within a short period.

2. [13]

   M v M was a case, similar to the present case, where the risk to a child or children lay with the person seeking to have access to the child. In such cases, a finding of a risk is to be made which takes the individual outside the general level of risk; it will usually be based on prior conduct of a kind which may demonstrate a capacity for, or tendency to engage in, unacceptable behaviour.

3. [14]

   There are differences between questions of custody or access and clearances under the Child Protection Act. There are three factors which are likely to render the assessment of risk more precise in family law proceedings than in proceedings under the Child Protection Act. First, applications for parental access involve a particular child, or children within a family. The obligation which arises under the Child Protection Act is to determine risk in relation to what is potentially an undefined class of children.

4. [15]

   Secondly, and as an extension of the first point, proceedings for custody or access can be made the subject of conditions which are apt to reduce any risk which may have been identified. That means of mitigating risk is not available under the Child Protection Act

5. [16]

   Thirdly, from a procedural point of view, the assessment of risk in family law proceedings is likely to involve a disputed adversarial hearing at which the allegations may be aired, with supporting material where available, and denied or contradicted. The present proceedings illustrate that material relied on under the Child Protection Act is rarely likely to be the subject of an adversarial hearing. Thus, NCAT found itself unable to be satisfied that an allegation made by a former wife of the applicant was true in circumstances where the wife did not give evidence, but the applicant did, denying the allegations. In such circumstances, in order for the Child Protection Act to fulfil its purposes, the Children’s Guardian and NCAT may need to take into account less well-established risks than would be accepted in family law proceedings.

6. [17]

   A second and separate category of cases, which nevertheless illustrate a similar approach to the assessment of future risk are applications for protection visas under the Migration Act 1958 (Cth). To establish a claim under the Convention Relating to the Status of Refugees (1951), an applicant has to establish a well-founded fear of persecution in his or her country of nationality. [8] In Chan Yee Kin v Minister for Immigration and Ethnic Affairs, [9] Mason CJ adopted a test based on the expression “a real chance” of persecution, “because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring”. [10] He did so on the basis that such language was used in the criminal law in defining the scope of the words “likely to cause death” in a definition of culpable homicide. [11]

7. [18]

   The relationship between past events and the possible motivation of the authorities in another country were further analysed in Minister for Immigration and Ethnic Affairs v Guo, [12] again in the context of assessing future risks on the basis of past events.

8. [19]

   Indeed it seems plausible (though not necessary to decide for present purposes) that findings as to past events may need to be made with a degree of flexibility not usually accepted in civil proceedings. In Minister for Immigration and Multicultural Affairs v Rajalingam, [13] Sackville J stated (North J agreeing):

9. [20]

   That reasoning continues to apply with respect to the current statutory regime, as explained by Kenny, Kerr and Perry JJ in DAO16 v Minister for Immigration and Border Protection: [14]

10. [21]

    Thirdly, only six months after delivering judgment in Chan, the High Court considered the appropriate means of assessing damages based on future or hypothetical effects of an injury. As explained by Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd: [15]

11. [22]

    There is no reason to suppose, as was submitted by the applicant, that these statements of principle with respect to the assessment of future risk and hypothetical events, operating across different areas of the law, do not have general application. That is not to say that they are to be applied as rules or immutable standards in all situations. However, failure to apply general principles in circumstances which invite their application may well constitute error of law.

12. [23]

    Legislation such as the Child Protection Act is, by its nature, protective; it does not impose penalties on individuals but is more closely analogous to licensing legislation which is designed to protect the public from persons who are not of good character or otherwise cannot be trusted to maintain professional discipline and trust in the exercise of authority or power over others.

13. [24]

    The Child Protection Act provides no constraint on the kind of material which may be relied on by the Children’s Guardian in making an assessment of future risk. In circumstances where the Children’s Guardian is not required to hold a hearing, some latitude must be allowed to the Guardian in determining what material is relevant and what inferences should be drawn from the material, subject no doubt to general obligations to allow the applicant to respond. (There may be circumstances in which information is supplied confidentially and where it is not appropriate to provide it, or at least its source, [16] to an applicant for response.) The same approach should be adopted by NCAT, acknowledging that different procedures apply.

14. [25]

    In these circumstances, the approach to assessing the risk of abuse in determining parental access to a child, as explained in M v M, provides helpful guidance for the consideration of risk to the safety of children under the child Protection Act. Indeed, the Children’s Guardian (and NCAT on an application for review) should arguably be less constrained in dealing with allegations and other material than the direct application of the reasoning in the High Court in M v M might suggest. Further, as Sackville J noted in Rajalingam, “there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the [tribunal] must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct.” [17]

15. [26]

    In some cases it will be necessary to have regard to what may be described as lingering doubts or suspicions; in other cases such a course will be inappropriate. That language finds no necessary place within the principles articulated in the authorities referred to above, including those of general application and those specific to the present Act, Tilley and BKE. Ultimately, NCAT must be consider whether a clearance will create a real and not fanciful risk to the safety of children.

Conclusion

1. [27]

   For these reasons, the Court should refuse the applicant leave to appeal. The applicant must pay the costs of the Children’s Guardian in this Court.

2. [28]

   McCALLUM JA: I agree with Simpson AJA that the appeal should be allowed. As Basten JA has noted, this Court in Tilley at [34]-[35] approved the approach taken by Beech-Jones J in BKE where his Honour applied the principles identified by the High Court in M v M (a family law case involving allegations of sexual abuse) to the similar task of assessing future risk to children raised by s 18(2) of the Child Protection (Working with Children) Act. I agree with Basten JA that the principles stated in the relevant passage in Tilley do not involve a gloss on the section but provide a method for a court to assess future risk.

3. [29]

   I also agree with what his Honour has said at [7(e)] that the proposition that a “lingering doubt or suspicion” should “count against” the applicant has no legal force or significance. That is not to derogate from the method for assessing future risk approved in Tilley, but only to recognise that the judicial explanation of a method for undertaking a statutory task can never supplant the terms of the statute.

4. [30]

   In my view, as Simpson AJA has explained, the case does involve an error in the application of the principles approved in Tilley which is such as to warrant a grant of leave. I also agree that ground 4 should be upheld. The primary judge found that the Tribunal failed to consider “the accumulated weight of the allegations”. However, his Honour’s explanation of that conclusion is anchored to the conclusions his Honour reached as to the Tribunal’s putative failure to undertake “the third stage of the inquiry”. To find error on that basis is to elevate the judge-approved method for assessing risk to a set of hardened rules the application of which, if care is not taken, will supplant the statutory test. I agree with Simpson AJA that the Tribunal did not err in the application of that test. I agree with the orders her Honour has proposed.

5. [31]

   SIMPSON AJA: The issue of principle ventilated in this application for leave to appeal concerns the approach to be taken by the NSW Civil and Administrative Tribunal (“the Tribunal”) in the determination of an application under s 27 of the Child Protection (Working with Children) Act 2012 (“the Child Protection Act”) for administrative review of a decision under s 18(2) thereof. Section 18(2) provides:

Relevant legislation

1. [32]

   The relevant legislation is the Child Protection Act as it stood in 2014. Some amendments have since been enacted. I will, nevertheless, refer to the relevant provisions in the present tense. The long title of the Child Protection Act is:

2. [33]

   The object of the Child Protection Act is stated in s 3 as:

3. [34]

   Section 4 provides:

4. [35]

   Section 8 imposes restrictions on engaging in child-related work (as defined in s 6). By s 8(1) a worker must not engage in child-related work unless he or she holds a “working with children check clearance” (to which I will refer as a “clearance”) of one of the two classes (volunteer and non-volunteer) for which s 12 makes provision. By s 13(1) a person may apply to the Children’s Guardian (appointed under s 115 of the Children’s Guardian Act 2019 (NSW)) for a clearance. Sections 14 to 17 appears in Part 3, Division 3 of the Child Protection Act. By s 14, in some circumstances (listed in Schedule 1) an applicant for a clearance is subject to an “assessment requirement”. By s 15(1), if the Children’s Guardian becomes aware that an applicant for a clearance is subject to a risk assessment requirement, the Children’s Guardian must conduct a risk assessment. By subs (3) of s 15 the Children’s Guardian may, in any event, conduct a risk assessment of an applicant for a clearance.

5. [36]

   Subsection (4) of s 15 sets out circumstances the Children’s Guardian may consider in making a risk assessment. As set out above, by s 18(2) (which appears in Pt 3, Div 4) the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless satisfied that the person poses a risk to the safety of children. By s 19, if it is proposed not to grant a clearance to an applicant, the Children’s Guardian must notify the applicant in writing of that proposed decision and the applicant may make a submission within the time specified in the notice.

6. [37]

   By s 20 the Children’s Guardian must notify the applicant in writing of a decision to refuse to grant a clearance. By s 27 an applicant who has been refused a clearance may (within 28 days) apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”) of the decision. By subs (4), the applicant must fully disclose to the Tribunal any matters relevant to the application. Section 30 of the Child Protection Act sets out circumstances that the Tribunal must consider in determining an application under s 27. These circumstances largely replicate those that, by s 15(4), the Children’s Guardian may consider.

7. [38]

   By s 63(1) of the ADR Act the Tribunal is “to decide what the correct and preferable decision is having regard to the material then before it, including… any relevant factual material [and] any applicable written or unwritten law”. The effect of subs (2) is to confer on the Tribunal all of the functions of the Children’s Guardian in making the decision. By subs (3) the Tribunal may decide to affirm, vary or set aside the decision and, if it decides to set aside the decision, may substitute its own decision or remit the matter for reconsideration in accordance with any directions or recommendations it makes.

8. [39]

   By cl 17(1)(a) of Schedule 3 of the of the Civil and Administrative Tribunal Act 2013 (NSW), an appeal lies to the Supreme Court against a decision of the Tribunal on a question of law. By sub cl (2) the Supreme Court may make such orders as it considers appropriate in light of the decision, including (but not limited to) affirming, varying or setting aside the decision, and, if it considers it appropriate to do so, substituting another decision. The Court may also order that the proceeding be remitted to be heard and decided again by another Tribunal in accordance with directions the Court may give.

Factual background

1. [40]

   On 1 October 2014, the applicant applied under s 13 of the Child Protection Act for a clearance. By error in the Office of the Children’s Guardian (henceforth, in relation to the present proceedings, I will refer to the Children’s Guardian as “the respondent”) he was considered to be a person who, under s 14, was subject to an assessment requirement. An assessment was conducted. On 2 December 2016 his application was refused and he was notified accordingly. The applicant applied under s 27 to the Tribunal for administrative review of the decision. In opposition to the application, the respondent raised a number of allegations of what were said to be instances of past misconduct on the part of the applicant relevant to his suitability to work with children. On 14 February 2018 the Tribunal set aside the decision of the respondent and, in substitution therefor, decided that the applicant was to be granted a clearance: CXZ v Children’s Guardian [2018] NSWCATAD 36. The respondent appealed to the Supreme Court. On 22 August 2019 Walton J (“the primary judge”), for reasons he gave, determined that the appeal should be allowed and the orders of the Tribunal set aside: Children’s Guardian v CXZ [2019] NSWSC 1083 (“the primary judgment”). On 4 September 2019 he made orders to that effect, and remitted the proceedings to the Tribunal, differently constituted, to be dealt with according to law (White folder 107, tab 4).

2. [41]

   The applicant seeks leave to appeal against that decision. Leave is required because the “matter at issue” in the proceeding is not of the value of $100,000 or more: Supreme Court Act 1970 (NSW) s 101(2)(r). Leave will (generally speaking) be granted only where the application involves issues of principle, questions of public importance, or in circumstances where it is reasonably clear that an injustice, going beyond what is merely arguable, has occurred: The Age Company v Liu [2013] NSWCA 26 at [13], per Bathurst CJ (Beazley and McColl JJA agreeing).

3. [42]

   The applicant has identified four proposed grounds of appeal, each of which concerns the principles on which s 18(2) of the Child Protection Act is to be applied. The proposed grounds of appeal are formulated as follows:

4. [43]

   As will appear below, in my opinion the applicant has identified an issue of principle sufficient to warrant a grant of leave.

5. [44]

   At [195] the primary judge expressly accepted (as, by clear implication, he did in other parts of the reasons) that the Tribunal was required to apply “the principles in CFW” and those stated by the High Court in M v M (1988) 166 CLR 69; [1988] HCA 68 and those stated in BKE v Office of Children’s Guardian [2015] NSWSC 523. No doubt that is correct. In BKE Beech-Jones J held that the reasoning in M v M is applicable to fact finding and the process of risk assessment required to be undertaken by the Tribunal. It has at all times been the contention of the respondent that “the principles” stated in M v M are the principles to be applied. The salient question is to identify what those “principles” are and what is required by them in a s 27 review by the Tribunal of a decision of the Children’s Guardian to refuse a clearance.

6. [45]

   M v M concerned an application under the Family Law Act 1975 (Cth) by an estranged husband for access to the daughter of the marriage who was in the custody of the wife. Resisting the application, the wife alleged that the husband had sexually abused the child. The husband denied the allegations. Access was at first instance refused because the judge was not satisfied that the child had not been abused (nor was he satisfied that the child had been abused). He considered that, if he were satisfied that the husband had sexually abused the child, he should refuse access; and he considered that, if he were not so satisfied, but also was not sure that the abuse had not taken place (“in other words, if I have lingering doubts”) he should also refuse access (M v M, p 74). An appeal against the decision to the Full Court of the Family Court was, by majority, dismissed.

7. [46]

   In the High Court the allegations of sexual abuse were treated as “central to the case” (p 71). The Court recognised, however, that (in circumstances where the relevant legislation enjoined the court to regard the welfare of the child as “the paramount consideration”), the court could not be “diverted by the supposed need to arrive at a definitive conclusion on the allegations of sexual abuse” (p 76). In that context, the Court said (p 77):

8. [47]

   This passage is the source of the respondent’s submission in this Court that:

9. [48]

   The respondent’s position throughout these proceedings has been that, in considering whether an applicant for a clearance poses a risk to the safety of children, the decision-maker (in this case, the Tribunal) must adopt the “three step approach” outlined in the submissions extracted above. This was also clearly stated in the respondent’s submissions to the primary judge, where the respondent submitted:

10. [49]

    Although, as will appear below, the primary judge accepted and acted on that construction of the judgment in M v M, it is not, in my opinion, correct. It represents a misunderstanding of what the High Court said. It should be rejected.

11. [50]

    In considering the application of M v M to the Child Protection Act, it is necessary to bear some distinguishing features in mind. M v M was concerned with legislation that gave paramountcy to the “welfare of the child”. Section 4 of the Child Protection Act makes comparable provision. But the issues that arise under the Family Law Act involve competing claims, usually of the two parents. Even so, the High Court rejected the proposition that the Family Court was required to try the case as though it were no more than a contest between the parents to be decided solely by reference to acceptance or rejection of (in that case) the allegations of sexual abuse. It was in that context that the High Court made the observations extracted above.

12. [51]

    Those observations are recognition that, while some allegations can be determined as substantiated, and some can be found to be without foundation (“groundless”) “very many cases” will not lend themselves to definitive factual determination. In those cases:

13. [52]

    Nowhere does the High Court say, or suggest, that every individual allegation is to be assessed as either “well founded” or “groundless”. Nowhere does the High Court say, or suggest, that all allegations must be treated as falling into one or other of those categories. Indeed, it explicitly says the opposite. In those cases which do not fall into one or other of those categories the court or tribunal must decide whether the evidence is such as to justify a finding that there is a relevant risk.

14. [53]

    In the context of the Child Protection Act this assessment will depend upon a number of things: among them, the seriousness of the allegations, the strength of any evidentiary support for the allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant.

15. [54]

    The view I have expressed above that the proposition that a three-step process is required should be rejected is in accordance with what Beech-Jones J said in BKE. At [33] his Honour said:

16. [55]

    The notion of a mandatory three-step process appears to have been drawn (in my opinion, mistakenly) from the decision of Harrison J in Office of the Children’s Guardian v CFW [2016] NSWSC 1406, where his Honour said:

17. [56]

    In Tilley v Children’s Guardian [2017] NSWCA 174 Basten JA (with the agreement of Meagher and Leeming JJA) referred to M v M and said at [34]:

18. [57]

    None of these decisions endorses the proposition that, in respect of every allegation raised by the Children’s Guardian against an applicant for a clearance, the Tribunal must engage in the three-step process for which the respondent contends. The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.

19. [58]

    It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

20. [59]

    The High Court did not, in M v M, have in mind a case such as the present where a series of disparate allegations are presented as a basis for refusing a clearance. It merely referred to allegations that “the father had sexually abused the child”. There was no indication of the number of times on which the abuse was alleged to have occurred, nor the nature of the abuse alleged, other than that it was of a sexual nature. Certainly the High Court did not suggest that each such allegation ought to have been assessed and determined serially. Yet that is the effect of the proposition now being advanced on behalf of the respondent.

21. [60]

    In many cases – perhaps most – under s 18 of the Child Protection Act, there will be a single allegation of misconduct said to disqualify the applicant, or a number of allegations of a similar kind see, for example: CFW; BKE; DAR v Children’s Guardian [2018] NSWSC 942; Tilley; CFJ v Office of Children’s Guardian [2016] NSWSC 1625. Children’s Guardian v CKF [2017] NSWSC 893 was a case in which allegations of a sexual nature were made by four children of the applicant.

22. [61]

    This case stands out from those. The allegations on which the respondent relied ranged from:

23. [62]

    The Tribunal did accept that the applicant’s children had witnessed violence between their parents.

The proceedings in the Tribunal

1. [63]

   It seems that a large volume of material was placed before the Tribunal. Much, if not all, of that material was not put before the primary judge and is not before this Court, (see, eg J [196]). It has been necessary to depend on what was recorded by the Tribunal to understand the evidence that was before it. That is unsatisfactory, but it was not suggested that this Court is not in a position to deal with the issues raised.

2. [64]

   As set out above, the respondent’s opposition in the Tribunal to the grant of a clearance depended on a number of disparate allegations of asserted misconduct on the part of the applicant over a number of years. The respondent also relied on affidavit evidence produced in Family Court proceedings in which the applicant’s sister-in-law described him as “overbearing, manipulative and argumentative”, and asserted that his second wife had told her that the applicant “had been hitting her”.

3. [65]

   The Tribunal dealt with these allegations as best it could, but in many instances found itself unable to reach “a positive finding” about the truth or otherwise of the specific allegation. It considered that much of the conduct alleged had taken place in the context of volatile marriages and acrimonious proceedings in the Family Court.

4. [66]

   In the interests of transparency, the following should be recorded (the details available are scanty and are largely drawn from the reasons given by the respondent for refusal of a clearance, and the reasons of the Tribunal).

5. [67]

   In 1988, acting at the behest of his father, the applicant shot and killed a man who was in a relationship with the applicant’s stepmother. In or about 1996 he disclosed his involvement to police and was charged with murder. He was acquitted on the ground of automatism. It was this charge that gave rise to the risk assessment. The respondent did not rely on this event as indicating that the applicant posed a risk to the safety of children.

6. [68]

   The Tribunal accepted evidence given by two psychiatrists who considered that the automatism was caused by an external factor, namely the applicant’s father (who is now dead), and concluded that the event was not a relevant factor in its enquiry. No issue in this application arises in relation to that conclusion.

7. [69]

   The Tribunal then considered, under three headings, the multiplicity of allegations on which the respondent relied in opposition to the application for clearance. These were:

   1. (1)

      the applicant’s criminal history (including the murder charge);

   2. (2)

      the applicant’s history in security work;

   3. (3)

      the applicant’s family history and domestic disputes.

8. [70]

   As noted above, in a number of instances, the Tribunal was unable to make a “positive finding” about the truth or otherwise of the allegations. In other cases, where it appeared to accept their veracity, it gave little weight to the allegations, it may be inferred because it considered that they had little bearing on whether the applicant posed a risk to children. An instance of the latter is to be found in relation to evidence that, in 2009, the applicant had become involved in an altercation at a fast food outlet which became physical. The altercation arose out of a perceived driving infringement by the applicant. He was charged with assault occasioning actual bodily harm and damage to property. He was acquitted of both charges on the grounds of self defence.

9. [71]

   Having undertaken that exercise with respect to each category of allegation put before it, the Tribunal turned to evidence adduced on behalf of the applicant and reports from two psychiatrists (one engaged on behalf of the respondent, one on behalf of the applicant) each of whom considered that the applicant did not pose a real and appreciable risk to the safety of children. It assessed the evidence given by the applicant as truthful and reliable ([108]). Finally, the Tribunal turned to the circumstances that it is, by s 30(1), required to take into account.

10. [72]

    It concluded that the applicant does not pose “a real and appreciable risk to children”, saying that, in coming to that conclusion, it had given particular weight to:

11. [73]

    For those reasons the Tribunal set aside the decision of the respondent and, in substitution, granted a clearance to the applicant.

The proceedings in the Supreme Court

1. [74]

   As recorded in the primary judgment, the respondent appealed to the Supreme Court on two grounds. The first was formulated as follows:

2. [75]

   It is apparent that the primary judge accepted the respondent’s proposition that the three-step process was required. He proceeded to apply those steps to the analysis of the Tribunal’s reasons. In respect of five allegations (or categories of allegations) advanced by the respondent, he painstakingly analysed the Tribunal’s reasoning. In respect of each, he concluded that the Tribunal had in fact applied the first and second steps which the respondent contends are required. In respect of one allegation he concluded that the Tribunal had failed to apply the third step. In respect of the second to fourth allegations he concluded that the Tribunal had applied that step. Accordingly, he rejected grounds 1(a) and 1(b) of the appeal.

3. [76]

   He held, however, that the Tribunal had, as asserted in ground 1(c), failed properly to assess “the accumulated weight which should be attached to those risks” (at [309]). It was on that basis that he allowed the appeal and remitted the proceeding to the Tribunal for reconsideration.

4. [77]

   It follows from what I have said above, that, in my opinion, in accepting that the three-step process was required, the primary judge was in error, as asserted in grounds 1 and 2 of the proposed appeal to this Court. It does not follow from that, however, that the error was material to the outcome of the appeal. In fact, as can be seen from the outcome of grounds 1(a) and 1(b) of the appeal to the Supreme Court, that error did not affect the resolution of the appeal, at least not in a way that was unfavourable to the applicant. I would therefore reject grounds 1 and 2 of the proposed appeal.

5. [78]

   By the third proposed ground of appeal the applicant complains that the primary judge erred by finding that, if the Tribunal were not positively satisfied that the allegations were (or any of them was) made out, and if a “lingering doubt or suspicion” remains, “this should count against” the applicant.

6. [79]

   I have set out above the source of this language: M v M (at first instance as recorded by the High Court at p 74), CFW at [16]). In my opinion it is unhelpful. There is no need to go beyond the language of the High Court in M v M, which (adapted to accommodate the Child Protection Act) requires the Tribunal to determine “whether on the evidence” (and that means the whole of the evidence) the applicant poses a risk to the safety of children if a clearance is granted to him. The language of “lingering doubt or suspicion” is particularly unhelpful in cases where, as here, the Children’s Guardian relies on multiple and disparate allegations to support the refusal to grant a clearance. That is because it tends to direct the Tribunal to compartmentalise the allegations and deal with each individually.

7. [80]

   The applicant has failed to establish that the primary judge did take that approach. He referred to two paragraphs ([175], and [195]) of the primary judgment, neither of which contains such a finding. I would therefore reject the third proposed ground of appeal.

8. [81]

   The final ground of appeal complains that the primary judge erred by finding that the Tribunal failed to assess all allegations raised by the respondent according to the three-step process. On one view, this ground of appeal should be dealt with in the same way as grounds 1 and 2. However, it may also be interpreted as a ground complaining of the basis on which ground 1 (c) as advanced in the Supreme Court was resolved.

9. [82]

   The primary judge upheld ground 1(c) of the appeal. He said:

10. [83]

    In this respect I have come to the view that the primary judge was in error. As I have indicated above, the Tribunal carefully considered each allegation that was put before it. As indicated, in many instances, the Tribunal was unable to make a positive finding as to the veracity of the allegations, and, in a number of cases, found the allegations (even if proved) to warrant the assignment of little weight in the context of the assessment of whether the applicant posed a risk to children.

11. [84]

    Against that, and in the context of the allegations, the Tribunal balanced evidence favourable to the applicant, including, significantly, psychiatric reports (including one prepared on behalf of the respondent) that the applicant posed a low risk to the safety of children. It then moved, as indicated above, to the s 30 considerations and dealt with each of those in turn.

12. [85]

    In my opinion the Tribunal properly discharged its function and properly assessed whether the evidence disclosed that the applicant posed a risk to the safety of children. It concluded that he did not. In my opinion the primary judge was in error in finding that it failed to discharge its function.

13. [86]

    I would therefore grant leave to appeal, allow the appeal, and set aside the orders of 4 September 2019, and order that the respondent pay the costs of the proceedings.

14. [87]

    The orders I propose are: