CXZ v Children's Guardian

[2020] NSWCA 338

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

CXZ v Children’s Guardian [2020] NSWCA 338

Hearing dates:

12 May 2020

Date of orders:

17 December 2020

Decision date:

17 December 2020

Before:

Basten JA at [1];
McCallum JA at [28];
Simpson AJA at [31]

Decision:

1.   Leave granted to appeal against the orders of 4 September 2019;

2.   Appeal allowed;

3.   Orders of the Supreme Court of 4 September 2019 set aside;

4.   The respondent to pay the applicant’s costs of these proceedings.

Catchwords:

APPEALS — Application for leave to appeal — principles to be applied in determining whether a person poses a risk to the safety of children under s 18 Child Protection (Working with Children) Act 2012 (NSW) – application of principles stated in M v M – whether allegations are to be assessed by three-step process – whether lingering doubt to count against applicant – whether Tribunal failed to consider accumulated weight of allegations – held, issue of principle raised – leave to appeal granted

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012 (NSW), ss 3, 4, 6, 8, 12, 13, 14, 15, 17, 18, 20, 27, 30, 63

Children’s Guardian Act 2019 (NSW), s 115

Civil and Administrative Tribunal Act 2013 (NSW), Sch 3

Family Law Act 1975 (Cth)

Supreme Court Act 1970 (NSW), s 101(2)(r)

Cases Cited:

Applicant VEAL of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72

Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164

BKE v Office of Children’s Guardian [2015] NSWSC 523

Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29

BSR v Office of the Children’s Guardian [2015] NSWCATAD 264

CFJ v Office of Children’s Guardian [2016] NSWSC 1625

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62

Children’s Guardian v CKF [2017] NSWSC 893

Children’s Guardian v CXZ [2019] NSWSC 1083

CXZ v Children’s Guardian [2018] NSWCATAD 36

DAR v Children’s Guardian [2018] NSWSC 942

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2

M v M (1988) 166 CLR 69; [1988] HCA 68

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643; [1990] HCA 20

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

The Age Company v Liu [2013] NSWCA 26

The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

Tilley v Children’s Guardian [2017] NSWCA 174

Category:

Principal judgment

Parties:

CXZ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
C Webster SC/L Andelman (Applicant)
P Singleton (Respondent)

Solicitors:
Craig Milne & Company (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2019/292994

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

Children’s Guardian v CXZ [2019] NSWSC 1083

Date of Decision:

22 August 2019

Before:

Walton J

File Number(s):

2018/82822

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant (“CXZ”) applied for a working with children check clearance pursuant to s 13(1) of the Child Protection (Working with Children) Act 2012 (NSW) (“Child Protection Act”). In considering his application, the Children’s Guardian conducted a risk assessment under s 15 of the Child Protection Act, and subsequently refused under s 18(2) of the Child Protection Act to grant a clearance to CXZ. CXZ applied under s 63 of the Administrative Decisions Act 1997 (NSW) for administrative review of the decision. Upon review, the Tribunal ordered that the decision of the Children’s Guardian be set aside and that CXZ be granted a working with children check clearance: CXZ v Children’s Guardian [2018] NSWCATAD 36. The Children’s Guardian appealed the decision of the Tribunal, and by judgment of 22 August 2019 and orders of 4 September 2019, Walton J set aside the decision of the Tribunal and remitted the proceedings to the Tribunal for determination according to law: Children’s Guardian v CXZ [2019] NSWSC 1083. CXZ sought leave to appeal from that decision.

The issues on appeal were:

1. Whether the proposed appeal raised an issue of principle sufficient to warrant a grant of leave;

2. Whether the primary judge erred in finding that the Tribunal was required to adopt a “three-step” process in relation to each of the allegations against CXZ;

3. Whether the primary judge erred in finding that a “lingering doubt” in relation to an allegation that was neither “well-founded” nor “groundless” should “count against” the applicant;

4. Whether the primary judge erred in finding that the Tribunal failed to consider the “accumulated weight of the allegations”.

The Court, by majority (per McCallum JA and Simpson AJA, Basten JA dissenting) granted leave to appeal and allowed the appeal.

Held, per McCallum JA, agreeing with Simpson AJA with additional observations:

As to issue (i):

This case involves an error in the application of the principles in Tilley sufficient to warrant a grant of leave: at [30], agreeing with Simpson AJA at [43].

Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[35].

As to issue (ii):

The principles stated in Tilley do not provide a gloss on the section but provide a method for a court to assess future risk: at [28], agreeing with Basten JA at [7(b)]. However, the judge-approved method for assessing risk should not be elevated so as to supplant the statutory test: at [29]-[30].

As to issue (iii):

The proposition that a “lingering doubt” should “count against” an applicant has no legal force or significance: at [29], agreeing with Basten JA at [7(e)].

As to issue (iv):

The primary judge erred in finding that the Tribunal failed to assess the “accumulated weight of the allegations”. This finding was anchored to his Honour’s conclusion that the Tribunal failed to undertake the “third stage of the inquiry”. To find error on this basis elevates the judge-approved method for assessing risk which risks supplanting the statutory test: at [30], agreeing with Simpson AJA at [85]-[87].

Held, per Simpson AJA (McCallum JA agreeing), granting leave to appeal and allowing the appeal:

As to issue (i):

The application for leave to appeal raises an issue of principle sufficient to warrant a grant of leave: at [43]. The issue of principle raised by the applicant concerns the application of the principles stated in CFW, M v M, and BKE in a s 27 review by the Tribunal of a refusal by the Children’s Guardian to grant a clearance: at [44].

Office of the Children’s Guardian v CFW [2016] NSWSC 1406; M v M (1988) 166 CLR 69; [1988] HCA 68; BKE v Office of Children’s Guardian [2015] NSWSC 523.

As to issue (ii):

The primary judge erred in construing the principles in M v M as requiring each individual allegation to be assessed in a three-step process: at [48]-[49]. Where an allegation is neither “well-founded” nor “groundless”, the decision-maker must determine whether on the evidence the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: at [52]. This will include consideration of factors including the seriousness of the allegations, the strength of any evidentiary support, and the relevance of the conduct to the risk to safety of children: at [53].

M v M (1988) 166 CLR 69 at 77; [1988] HCA 68; BKE v Office of Children’s Guardian [2015] NSWSC 523 at [33]; Tilley v Children’s Guardian [2017] NSWCA 174 at [34].

As to issue (iii):

The language of “lingering doubt” is particularly unhelpful in cases involving multiple disparate allegations of misconduct, as it tends to direct a decision-maker to compartmentalise the allegations and deal with each individually: at [79]. The applicant however failed to establish that the primary judge took this approach: at [80].

As to issue (iv):

The primary judge erred in finding that the Tribunal failed to evaluate the accumulated weight of the allegations: at [82]-[83]. The Tribunal carefully considered the evidence supporting each allegation and the relevance of the conduct to any risk to the safety of children: at [83]. These findings were balanced with evidence favourable to the applicant: at [84]. The Tribunal properly discharged its function and the primary judge erred in finding that it did not: at [85].

Held, per Basten JA (dissenting), refusing leave to appeal:

As to issue (i):

No issue of principle is raised. The correct test was set out by this Court in Tilley v Children’s Guardian. Those principles do not involve a gloss on the statutory provision but provide a method for a court to assess future risk: at [7]-[7(b)], McCallum JA agreeing as to principles at [28].

Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[35]; M v M (1988) 166 CLR 69; [1988] HCA 68; BKE v Office of Children’s Guardian [2015] NSWSC 523.

As to issue (ii):

Where a risk assessment involves disputed allegations of past conduct, there is no three-step process but rather a single process in which the decision-maker is required to make findings in relation to the allegations. Where the decision-maker is not affirmatively satisfied that the conduct occurred but cannot dismiss the allegation as groundless, the decision-maker must consider whether the possibility that the conduct occurred may support a view that the applicant poses a risk to the safety of children: at [7(c)]-[7(d)]. The primary judge applied the approach described in M v M and thus the correct test under s 18(2): at [7(f)].

M v M (1988) 166 CLR 69; [1988] HCA 68; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 at [63]-[64]; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [36]; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643; [1990] HCA 20.

As to issue (iii):

The language of “lingering doubt” counting against the applicant has no legal force. It is the possibility that misconduct occurred which would support a finding of risk that may count against the applicant. Whilst the phrasing is unhelpful and should be eschewed, its use does not demonstrate error: at [7(e)], McCallum JA agreeing at [29]. In some cases it will be necessary to have regard to lingering doubts and in other cases it will be inappropriate. The decision-maker must ultimately consider whether granting a clearance will create a real and not fanciful risk to the safety of children: at [26].

As to issue (iv):

The Tribunal failed to apply the relevant test to some allegations which were not proved to the requisite standard. The Tribunal contented itself with the finding that it could not be positively satisfied that the misconduct occurred but did not go on to consider whether the possibility that the alleged misconduct did occur created a risk to the safety of children. There was no clear error or miscarriage in the primary judge’s application of the test: at [8].

Judgment

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. 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]

   1. CXZ v Children’s Guardian [2018] NSWCATAD 36.

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.

   2. Children’s Guardian v CXZ [2019] NSWSC 1083 (Walton J).

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:

“1. The primary judge erred by finding that pursuant to ss 18(2) and 30(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) the Tribunal was required to adopt a three step process ([judgment at] [157], [210], [211], [224]).

2.   The primary judge erred by finding that the Tribunal was required to apply ‘the principles’ in Children’s Guardian v CFW [2016] NSWSC 1406 in determining an application pursuant to s 27 of the Act ([judgment at] [195]).

3.   The primary judge erred by finding that if the Tribunal is not positively satisfied that the acts occurred on the balance of probabilities, if a lingering doubt or suspicion remains this should count against the defendant ([judgment at] [175], [195]).

4.   The primary judge erred by finding that the Tribunal was required to assess all allegations raised by the Children’s Guardian according to the three step process ([judgment at] [168]).”

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:

1. How was the Tribunal to determine “risk” as required in s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW)? (Ground 1)

2. Must the Tribunal apply the principles in M v M (1988) 166 CLR 69 and Children’s Guardian v CFW [2016] NSWSC 1406 in every application regarding a working with children check (clearance) and in so doing adopt a three step decision-making process? (Grounds 2, 3 and 4)

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]

   3. Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38].

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

1. The correct test to be applied in assessing whether a person poses a risk to the safety of children was addressed by this Court in Tilley v Children’s Guardian [4] at [34]-[35]. The Court followed Beech-Jones J in BKE v Office of the Children’s Guardian, [5] who had applied the principles identified by the High Court in M v M. [6] The issue in M v M was whether providing custody or access by a parent may expose the child to an unacceptable risk of sexual abuse.

   4. [2017] NSWCA 174 (Basten, Meagher, Leeming JJA).

   5. [2015] NSWSC 523 at [33].

   6. (1988) 166 CLR 69; [1988] HCA 68.

2. The principles do not involve a gloss on the statutory provision, but provide in conventional terms a method for a court to assess future risk.

3. Where a suggestion of risk is based upon allegations of past conduct which are disputed by the person claiming the clearance, there is no three-step process involved, but rather a single process in the course of which the Children’s Guardian or NCAT is required to make findings with respect to allegations of past conduct.

4. Where the Guardian or NCAT is not affirmatively satisfied that the alleged conduct occurred, but is not able to dismiss the allegation as groundless, it is necessary to assess whether the possibility that such conduct occurred may support a view that the applicant poses a risk to the safety of children.

5. Although uncertainty as to whether the conduct occurred was described in Office of the Children’s Guardian v CFW as a circumstance where “a lingering doubt or suspicion remains”, stating that this should “count against” the applicant,[7] this language has no legal force or significance. The possibility that relevant and material misconduct may have occurred could support a future risk and is in that sense a factor which could “count against” the applicant. Nevertheless, the phraseology is unhelpful and should be eschewed; however, its use does not necessarily demonstrate error.

6. The primary judge applied the approach described in M v M and thus the correct test under s 18(2) of the Act.

   7. CFW at [16], adopting language of the Tribunal in BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41] (A Britton, Principal Member).

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

“[196]   The Court does not have the evidence that was before the Tribunal and, therefore, does not have the material referred to in the allegations as described by the Tribunal. Nor does the Court have the precise formulation of the allegations as may have been stipulated to the Tribunal by the Children’s Guardian. The Court is left to infer what the particular allegation was from the description given to it by the Tribunal in the course of its reasoning. That task is made difficult by a number of factors.”

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. 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

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.

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.

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.

12. 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

13. 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.

14. 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]

    8. See now, Migration Act, ss 36(2), 5(1), 5H and 5J.

    9. (1989) 169 CLR 379 at 389; [1989] HCA 62.

    10. The real chance test is now found in s 5J(1)(b) of the Migration Act.

    11. See Boughey v The Queen (1986) 161 CLR 10 at 21; [1986] HCA 29.

15. 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.

    12. (1997) 191 CLR 559 at 574-576; [1997] HCA 22.

16. 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):

“[63]   Although the ‘What if I am wrong?’ terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a ‘well-founded fear of being persecuted’ for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute ‘an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found’.

[64]   In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT 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. In Guo itself, the findings were not expressed [in] this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.”

13. (1999) 93 FCR 220; [1999] FCA 719.

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]

“Furthermore, the AAT must be taken to have entertained no real doubt about the falsity of appellant’s claim as to his sexuality. If the AAT had entertained any real doubts, it would have been required to consider in the alternative whether there was a “real risk” that the appellant may suffer “significant harm” as defined in s 36(2A) of the Act on the assumption that it was wrong in finding that claim to be fabricated: see [Guo] …; see also [Rajalingam] ….”

14. (2018) 258 FCR 175; [2018] FCAFC 2 at [36].

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]

“But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages.”

15. (1990) 169 CLR 638 at 643; [1990] HCA 20.

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.

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.

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.

    16. Applicant VEAL of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [29].

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]

    17. Rajalingam at [64], set out at [19] above.

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

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.

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.

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.

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.

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:

“The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.”

It is the means of assessing whether “the person poses a risk to the safety of children” that is here in question.

Relevant legislation

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:

“An Act with respect to checks and clearances for the purposes of working with children; and for other purposes.”

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

“… to protect children:

(a)    by not permitting certain persons to engage in child-related work, and

(b)    by requiring persons engaged in child-related work to have working with children check clearances.”

34. Section 4 provides:

“The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

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.

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.

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.

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.

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

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).

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).

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:

“1. The primary judge erred by finding that pursuant to ss 18(2) and 30(1) of the [Child Protection Act] the Tribunal was required to adopt a three step process …

2.   The primary judge erred by finding that the Tribunal was required to apply ‘the principles’ in Children’s Guardian v CFW [2016] NSWSC 1406 in determining an application pursuant to s 27 of the [Child Protection] Act. …

3.   The primary judge erred by finding that if the Tribunal is not positively satisfied that the acts occurred on the balance of probabilities, if a lingering doubt or suspicion remains this should count against the defendant … .

4.   The primary judge erred by finding that the Tribunal was required to assess all allegations raised by the Children’s Guardian according to the three step process … .”

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

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.

43. 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.

44. 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):

“No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegations as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. …

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.”

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

“A proper risk assessment has three components – or involves three steps or three questions … First: is the tribunal of fact satisfied on the balance of probabilities that the allegation is true? (If so, then the misconduct is taken into account and given the weight that the tribunal considers appropriate.) Second: if not, is the tribunal satisfied that the allegation is ‘groundless’? (If so, the allegation does not count against the person against whom it was made.) Third: if the tribunal has reached neither a positive conclusion that the allegation is true, nor a positive conclusion that it is not true, then the remaining, or ‘lingering’ suspicion is still to be taken into account, and the question is: what significance is to be given to that remaining concern?” (WF 189- R’s response to A’s argument, par 3)

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:

“13   It is well established that the three-step approach to assessing risk that was endorsed by the High Court in M v M … is applicable to proceedings under the [Child Protection] Act.” (WF 142)

As the subsequent submissions make clear, the respondent’s contention was that any allegation raised against an applicant for a clearance is required to be individually subjected to that process.

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.

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.

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:

“… the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.” (p 77)

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.

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.

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:

“… Thus in such cases it may be that [the Tribunal] can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, [the Tribunal] may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, [the Tribunal] may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

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:

“14.   The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has ‘no hesitation in rejecting the allegation as groundless’. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a ‘decisive impact’ on the outcome of the application.

15.   The second proposition is that, even no such ‘positive finding’ can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is ‘groundless’. …

16.   Even if not positively satisfied that the acts occurred on the balance of probabilities, if ‘a lingering doubt or suspicion remains’ then this should count against the defendant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance. …

17.   A court or tribunal may make a finding of ‘real and appreciable risk’ even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left ‘open’, the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.” (Citations omitted.)

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]:

“The Court noted that some allegations might be seen to be well-founded, while others may be seen as groundless. However, the Court accepted that there would be allegations falling into an intermediate category which were nevertheless relevant to the assessment of future possibilities or likelihoods, which lay at the heart of the Family Court’s function in determining appropriate orders with respect to custody and access, for the welfare of a child.”

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.

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.

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.

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.

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

• criminal offences dating from 1995 of theft, drug possession and assaulting police (to which the Tribunal assigned little weight);

• a 2009 charge of assault (of which the applicant was acquitted on the ground of self-defence);

• incidents during the course of the applicant’s work as a security officer (in relation to which the Tribunal found no evidence of the applicant’s involvement);

• assertions of domestic violence towards the applicant’s first and second wives;

• allegations of threatening behaviour in 2002 and 2003 in relation to the applicant’s contact with his children;

• allegations that, as a child, the applicant had sexual relations with his younger brother and had “inappropriately touched” his older sister (allegations to which the Tribunal assigned little weight);

• evidence concerning the applicant’s relationships with his children, including an accusation by his daughter that he had “shov[ed] her down the stairs”; and

• evidence of behavioural and mental health issues on the part of the applicant’s son (to which the Tribunal assigned limited weight).

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

The proceedings in the Tribunal

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.

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”.

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.

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).

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.

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.

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

2. the applicant’s history in security work;

3. the applicant’s family history and domestic disputes.

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.

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.

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:

“•   the findings of the psychiatrists … each of whom determined the applicant to be a low risk – rather than a real and appreciable risk – for the safety of children;

•   the evidence before us that in 2006 the Family Court placed the applicant’s two oldest sons in the applicant’s care where they remain;

•   the evidence before us that the applicant is an attentive and caring father who has been the primary carer of his elder sons since 2002 and that of his youngest son since 2015;

•   the fact that, for the past decade, there have been no DOCS or FACS reports in relation to the applicant or his children.”

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

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

“1.   The Tribunal erred in law by failing to apply M v M … (or failing to apply it properly) in that:

(a)   in respect of five particular allegations [identified by reference to the Tribunal’s reasons] it failed to address whether or not the allegations were groundless;

(b)   if the Tribunal did not find the said allegations to be groundless – it failed to evaluate them and take them into account when determining whether or not the defendant posed a risk to the safety of children within the meaning of subsection 18(2) of the [Child Protection Act]; and

(c)   in respect of all the allegations and evidence against the defendant that the Tribunal did not reject or find to warrant no weight, the Tribunal failed to evaluate and take into account the totality of the matters when determining whether or not the defendant posed a risk to the safety of children within the meaning of the said subsection 18(2).” ([J 17])

The second ground complained of asserted inadequacy of reasons.

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.

75. 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.

76. 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.

77. 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.

78. 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.

79. 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.

80. 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.

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

“286   I have found that contrary to the submissions advanced by the Children’s Guardian, that, when viewed as a whole, the Tribunal, by its decision, did grapple with the full panoply of issues relevant to the assessment of risk with respect to four of the five allegations identified by the Children’s Guardian.

…

293   The Children’s Guardian was correct to submit that the Tribunal did not expressly or impliedly evaluate the accumulated weight of the evidence of the allegations when assessing the risk posed by CXZ in its conclusions.

…

297 There is nothing in the Tribunal’s discussion arising under the requirement of s 30(1) of the Act which would alter this conclusion. Nor do I consider that it would be inferred that the Tribunal addressed the risk posed by allegations 2, 3 and 4 on a cumulative basis having regard to the manner in which the Tribunal approached the assessment of risk. Each allegation was assessed as a silo. … In fact the fragmented nature of the discussion sits ill with the notion of some overarching discussion in the Tribunal’s conclusion drawing together the strands of its findings. …”

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.

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.

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.

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.

87. The orders I propose are:

1. Leave granted to appeal against the orders of 4 September 2019;

2. Appeal allowed;

3. Orders of the Supreme Court of 4 September 2019 set aside;

4. The respondent to pay the applicant’s costs of these proceedings.

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Endnotes

Decision last updated: 17 December 2020