FBC v Children's Guardian

The matter of FBC v Children's Guardian was brought before the court, where the applicant, FBC, sought judicial review of the Children's Guardian's refusal to grant a Working With Children Check Clearance. The Guardian had refused the clearance after conducting a risk assessment, concluding that there was an unacceptable risk of harm to children if the clearance was granted. The decision was grounded in the paramount concern of protecting children from child abuse. The applicant had previously been charged with committing an act of indecency with a person under 16 years and an attempt to commit such an act, charges that were subsequently discontinued by the Director of Public Prosecutions.

The legal issues central to the case were the standard of proof required in a review under section 27 of the Child Protection (Working with Children) Act 2012 and whether the Guardian's findings on the balance of probabilities could substantiate that the alleged events occurred, thereby justifying the refusal of clearance. Additionally, the court examined whether the applicant posed an unacceptable risk of harm, specifically a real and appreciable risk to the safety of children, which would warrant the refusal of the clearance.

The court found that the Children's Guardian had properly applied the legislative framework in reaching the decision to refuse the clearance. The court confirmed that the Guardian's findings were sufficient on the balance of probabilities, and there was evidence that the applicant posed an unacceptable risk to children. The court also emphasised the importance of protecting children from harm and the low threshold required to establish risk in this context. Consequently, the Guardian's decision was affirmed, and the applicant's application for review was dismissed.

The court also ordered that, with certain exceptions, the publication or broadcast of the names of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order ensures the privacy and protection of individuals involved in the case, aligning with the statutory provisions under the Civil and Administrative Tribunal Act 2013.