Holmes v Commission for Children and Young People and Child Guardian
[2010] QCAT 292
•15 March 2010
| CITATION: | Holmes v Commission for Children and Young People and Child Guardian [2010] QCAT 292 |
| PARTIES: | Fletcher Holmes |
| v | |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CSR228-09 |
| MATTER TYPE: | Children’s matters |
| HEARING DATE: | 15 March 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Margaret Arthur (Presiding Member) Jennifer Felton (Member) Maureen O’Regan (Member) |
| DELIVERED ON: | 15 March 2010 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
A positive notice should issue pursuant to Section 102(3) of the Commission for Children and Young People and Child Guardian Act 2000 (the ‘Act’) to the Applicant forthwith.
| CATCHWORDS : | Blue card, Tribunal concluded that although there are some risks attaching to the Applicant holding a Blue Card, those risks are not unacceptable, none of the offences involved children, Tribunal did not consider that the Applicant’s circumstances amount to an exceptional case. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Fletcher Holmes |
| RESPONDENT: | Commission for Children and Young People and Child Guardian |
REASONS FOR DECISION
HISTORY TO PROCEEDINGS
From 1 December 2009, the Queensland Civil and Administrative Tribunal (the ‘Tribunal’) has replaced the Children Services Tribunal (‘CST’) on the commencement of the Queensland Civil and Administrative Act 2009 (the ‘QCAT Act’).
Under Section 256 of the QCAT Act, a pending proceeding (being a proceeding commenced in one of the Tribunals replaced by the 2009 Act but not heard by the CST prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal (‘QCAT’).
According to Section 271 of the QCAT Act, the Tribunal must deal with the matter the subject of the proceedings under the Act or an enabling Act.
Pursuant to Section 17 of the QCAT Act, the Tribunal has jurisdiction to review a decision made by an entity under an ‘enabling Act’ and the Commission for Children and Young People and Child Guardian Act 2000 (the ‘Act’) is such an Act. Pursuant to Section 121 (1)( a)of the Act, a person may apply to the Tribunal to have reviewed a decision by the Commissioner for Children and Young People and Child Guardian (the ‘Commissioner’) to issue a negative notice about the person.
Section 20 of the QCAT Act provides that when reviewing a reviewable decision, the Tribunal is to decide afresh the matter to which the reviewable decision relates, unaffected by the reviewable decision, and to decide the matter on the merits.
By document dated 23 July 2009 a sporting club lodged an application under Section 100 of the CCYPCG Act for a suitability notice for the Applicant. The application was made on the basis that the applicant was proposing to undertake regulated employment with the club.
By letter dated 30 September 2009, the Commissioner advised the Applicant of her decision to issue a Negative (Unsuitable) Notice to him in respect of the application. This letter enclosed the Statement of Reasons for the decision.
By document (in Form 1) dated 20 October 2009, the applicant has sought a review of the Commissioner’s decision. The Application to Review was made to the Children Services Tribunal. A preliminary conference was held in the matter on the 11 November 2009 at which time it was scheduled for a Hearing on 8 February 2010.
In the period since the Preliminary Conference, the Applicant has obtained a report from a psychologist, Mr Adam Cole.
APPLICABLE LAW
Part 6 of the Act contains those provisions dealing with “Employment Screening for child-related employment”. The Act is to be administered under the principle that the welfare and best interests of a child are paramount. Section 6 (1) of the Act makes this clear and Section 6 (2) sets out additional principles that are to be considered in the administration of the Act.
The Commissioner’s decision to cancel the Applicant’s Positive Notice was made pursuant to an application of Section 102 (3) to the matter. The effect of Section 102 (3) and (4) is that the Commissioner must issue a Positive Notice to the Applicant unless the Commissioner is satisfied that the Applicant’s case is an exceptional one in which it would not be in the best interests of children for the Commissioner to issue a positive notice.
The Commissioner bears the onus of establishing that on the balance of probabilities that the Applicant’s case is an exceptional one, such that it would not be in the best interests of children for the Commissioner to issue him with a Positive Notice.
The term “exceptional case” is not defined within the Act or the QCAT Act however it has been considered in numerous cases both within and outside the context of employment screening legislation.
In Queensland, the term has been considered in the context of the Act in the matter of Commissioner for Children and Young People and Child Guardian v. Maher & Anor [2004] QCA 492 (‘Maher’s Case).
It was made clear by McPherson JA in Maher’s Case that the principle that the welfare and best interests of a child was the paramount consideration “to which all others yield”. The decision of Phillipides J in Maher’s Case discussed the decision-making process of the Commissioner and subsequently the Tribunal in terms of deciding whether or not an ‘exceptional case’ existed.
In Maher’s Case (supra), Phillipides J endorsed a decision-making process that included the analysis of the “risk factors” and the “protective factors” in coming to a conclusion with regard to whether an ‘exceptional’ case had been made out.
A further decision of relevance is contained in OAA Re [2006] QCST 14, in which the Tribunal noted that the tests adopted in the family law jurisdiction in relation to the assessment of risk in the context of a parent having contact with a child, were of assistance in determining whether ‘an unacceptable risk’ could be seen to exist thereby making the case an ‘exceptional case’.
It is pertinent to refer to paragraphs 43 and 45 of this decision:
“43. The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children? The Tribunal’s answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner’s Act. In both jurisdictions the over-riding principle is that the welfare and best interest of children are paramount.”
Paragraph 45 is as follows:
“45. The Tribunal makes it clear that the application of the “unacceptable risk” test is not restricted to a consideration of the circumstances of the person’s charge. Other matters may be taken into account as well, and indeed these matters may be decisive irrespective of the findings of the Tribunal in relation to the charge. e.g. A person’s psychiatric condition alone may be such as to make that person an unacceptable risk to be involved in child-related employment. This approach finds support in the remarks of Phillipides J. in Maher’s Case at para 42 in particular.”
It is also of assistance to consider the New South Wales decision of Commissioner for Children and Young People v. BC200206205 in which reference is made by Young J to a decision of Peterson J in which case Peterson J stated:
“Risk is a concept the parameters of which may vary from the perspective of the assessor, but more particularly will also vary according to the known facts. On one view of it, the exposure of children to adults, even in the usually supremely safe context of child and parent, will always contain the possibility of a risk of safety of a child. However, in the absence of some indication of actual risk, for example from a parent, the position will be that the child is to be regarded not at risk. Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognizable potential for harm. The existence of that potential will require some foundation in fact…. What will amount to a sufficient basis for such a view, must, I think, remain an issue for each case, given the wide-ranging variations in circumstances which may present.”
APPLICANT’S BACKGROUND
The Applicant is 22 years of age and was born on 2 July 1987. He is the third eldest of four brothers. The Applicant’s parents are married and, until recently, the Applicant was residing with them. The Applicant‘s evidence is that, he has a good relationship with both parents and with his three siblings.
The Applicant completed Grade 12 at Wavell High School in 2004.
According to the evidence of the Applicant, when he was 15 years of age he worked part-time as a trainee coaching and development officer for the Australian Rugby League Foundation. The Applicant then worked on a permanent part-time basis with the Brisbane Broncos as a Game Development officer. The Applicant then progressed to a full-time position with the Aspley Rugby League Club (‘Aspley RLC) as a Game Development Officer. In this capacity, the Applicant would visit schools to run coaching clinics with children aged 6- 18 years.
As a result of his failure to obtain a Blue Card, since the end of September 2009, the applicant’s duties with the Aspley RLC have been confined to administrative and organizational work. As to whether the Applicant keeps his position with the Aspley RLC depends upon whether he is able to obtain a Blue Card.
The Applicant has also played football for Brisbane Broncos but is not currently doing so.
In his oral evidence, the Applicant informed the Tribunal that he moved out of home a few months ago and is residing with his girlfriend Yasmara Rivera and a couple of male friends. The Applicant was supported at the Hearing by his girlfriend Yasmara.
Criminal History
On 24 October 2004, the Applicant, who was then 17 years of age, was charged with an offence of grievous bodily harm. Mediation took place in the matter at which it was resolved that the applicant would pay compensation for medical expenses.
When the matter came before the Court on the 12 March 2007, the police did not offer up any evidence and the charge was dismissed.
On the 16 December 2006, the Applicant was charged and convicted of Assault Occasioning Bodily Harm Whilst in Company. This matter reached the District Court on the 25 May 2008. The applicant pleaded guilty to this offence as a result of which the Applicant was placed on a 2 year Probation Order. Special conditions were placed on the Order being that the Applicant would attend an anger management program and perform 240 hours of Community Service. There was no conviction recorded in relation to the offence. The Applicant’s period of probation will expire on the 28 May 2010.
Shortly before the above matter reached the Court, on the 4 May 2008, the Applicant was charged with an offence of common assault relating to inappropriate touching of a female. It was alleged that the Applicant had touched a female under her skirt, The Applicant denied the assault occurred in the way maintained by the female however does admit that he touched this person without her consent. The Applicant was placed on a good behaviour bond for a period of two years and this will expire in July 2010.
In addition to the above, the Applicant was charged with being drunk and disorderly in premises to which a permit applies on the 7 September 2007. No conviction was recorded in relation to this offence.
It came to light during the Hearing on the 8 February 2010, that two years and three months ago, in approximately December 2006, the Applicant lost his licence for three months for drinking under the influence of alcohol. During the course of this period, he was caught speaking on a mobile phone and driving whilst unlicensed. He had driven the vehicle to his work-place and then driven the vehicle, with two associates to a third place. As a result of this, the Applicant lost his licence for a period of two years and three months.
DISCUSSION OF THE EVIDENCE
The written material before the Tribunal included copies of the Court Briefs in relation to the three most serious offences, that is, the charge of grievous bodily harm, the assault occasioning bodily harm and the common assault.
In addition, a transcript of the proceedings before Her Honour Justice Richards of the District Court of Queensland in relation to the charge of assault occasioning bodily harm was provided. Records were also provided by the Department of Community Safety (Corrective Services). These records detailed the Applicant’s attendance with his Probation Officer and in relation to his community service.
According to the records provided by Corrective Services, the Applicant received an official warning on 27 May 2009 for the reason that he failed to report for community service and still had a large quantity of his community service to fulfil at that time.
The records also show that the Applicant contravened his Probation Order by travelling inter-state to play football at Lismore.
As mentioned, the Applicant had been ordered by Her Honour Justice Richards to undergo a course in anger management and the records provided indicate that the Applicant did so and completed a five week course on 5 November 2008.
The Tribunal also read the Applicant’s submissions to the Commissioner which are contained within the Statement of Reasons. These submissions set out the Applicant’s version of events surrounding the criminal offences.
The Tribunal also read a number of character references in relation to the Applicant and a report prepared by a psychologist Adam Cole in relation to the issues before the Tribunal which has been obtained by the Applicant.
The Statement of Reasons provided by the Commission contained the following statements:
“The Applicant has demonstrated by his prior criminal conduct that he is not an eligible person to hold a positive notice and blue card. The applicant’s behaviour suggests a propensity for violence, a disregard for the law and a lack of empathy for the complainants injured by him.”
Certainly, on its face, the material raises two main risk factors being alcohol abuse and a propensity for violence.
Role of Alcohol
The members of the Tribunal spent a considerable amount of time questioning the Applicant in relation to his alcohol consumption and his attitude to alcohol as did the legal representative for the Commission.
The Applicant was very candid in his responses to the questioning.
In relation to alcohol consumption, the Applicant very frankly told the Tribunal that he had a couple of weeks ago, on Australia Day drunk about 12 beers of medium alcohol content. The Applicant told the Tribunal that he saw nothing wrong with the consumption which has occurred over about 5 hours and taken place at his home. The Applicant was of the view that he drinks a lot less than many other people that he knows and that he does not have a problem with alcohol.
In addition, the Applicant told the Tribunal that he does not drink through the week due to his work commitments and that his social life these days consists of going to the beach and the occasional party. He made a comment that “people are building their lives”.
The Applicant made comments to the effect that he does not think he has a problem with alcohol, that he is drinking a lot less these days and that he has ‘ a lot more responsibility’.
The Applicant’s view was that in the past he made poor decisions whilst drinking rather than that the alcohol had played any major part in his actions. The Applicant was of the view that having now completed an Anger Management Course, he is equipped to make better decisions such as avoiding potentially conflictual situations and that his level of alcohol consumption was not likely, in itself, to lead to future problems.
The Applicant’s lack of insight into the part that alcohol played in the offences committed by him was discussed by the psychologist, Adam Cole from whom the Applicant obtained a report.
Mr Cole holds qualifications in Psychology including a Masters in Psychology and is a full member of the Australian Psychological Society. Mr Cole is a clinical psychologist in private practice. There is no affiliation or association between Mr Cole and the Applicant’s employer or with the Applicant.
Mr Cole’s report comments as follows:
“Finally his minimisation of the effects of alcohol in these situations is to a small degree a source of concern. In general, Fletcher did not appear to be fully in control of his behaviour while he was drinking. I suspect that this overestimation of his resistance to the effects of alcohol might be a function of his age, exposure to excessive drinking both in his age group and the football culture in which he lives and also the tendency of most people to overestimate their capabilities while inebriated.”
It was of concern to the Tribunal that the Applicant did not recognize a connection between alcohol consumption and poor decision-making.
The Tribunal explored with the Applicant the concept of ‘binge-drinking’ and pointed out that the Applicant was binge-drinking on Australia Day when he consumed 12 beers over the space of 5 hours. The Applicant’s response to this indicated that it had not occurred to him that his drinking habits fell within the description of binge drinking. The Applicant’s response showed a lack of awareness in relation to the risks of alcohol including a lack of awareness that the higher the level of alcohol, the higher the risks.
It is noted however that the Applicant does appear to have past a point in his life where frequent heavy social drinking is a common feature of his life. The Applicant was convincing in conveying that he has outgrown this type of drinking and that he drinks far less frequently and generally, far less heavily than was the case two years ago. He explained that he had realized that there are some people with whom it is safe to socialize and other that should be avoided.
The Applicant also pointed out that he has learned a good deal from the Anger Management course that he attended as part of his Probation Order. The Applicant said that he now knew to be aware and alert to his own reactions and to ensure that he did not reach the same points of anger that had led to the type of assaults committed by him. The Applicant was also able to say that he is far more aware of the behaviour of other people and will avoid potentially dangerous situations by removing himself from them. He gave the example of recently being at a party where people were becoming aggressive and the action he took to avoid being involved.
The Applicant called three witnesses, Mr Paul Dyer, Mrs Janelle Searles and Mr Shane Kiss.
Mr Paul Dyer is the Game Development Officer with the Brisbane Broncos. Mr Dyer has known the Applicant for three years and is aware of the offences committed by the Applicant.
Mr Dyer maintained that the Applicant did not have a drinking problem and drank a lot less than other people his age. Mr Dyer was aware of the Applicant’s criminal history including his drink driving offence. He appeared to attribute the applicant’s criminal history to poor decisions made by the Applicant as a result of a lack of maturity rather than to an inappropriate use of alcohol.
Mr Dyer said that he has been at numerous social occasions with the Applicant where the Applicant and other people at the function have been consuming alcohol. Mr Dyer said that the Applicant did not consume alcohol more quickly than other people, that he was a pleasure to be around and that the Applicant’s demeanour was no different to that of the other people at the function. Mr Dyer said these functions could include dignitaries from various fields.
It appeared from Mr Dyer’s evidence that within the context of his current employment, there are virtually no social occasions at which children are present and alcohol is served.
Mrs Janelle Searles has known the Applicant since he was a young child and her son and the Applicant have been close friends for many years and are now house-mates. Mrs Searles was aware of the Applicant’s criminal history.
Although Mrs Searles was not aware of the Applicant’s drinking habits, she also maintained that the Applicant did not drink more than other people his age. Mrs Searle said she had never seen the Applicant become aggressive as a result of drinking alcohol.
Mr Shane Kiss, an Operations and Development Manager with the Aspley RLC has known the Applicant for 7 years and came into contact with him when the application was a school student.
Mr Kiss is now the Applicant’s supervisor at work. Mr Kiss has seen the applicant at numerous social occasions at which alcohol has been served. Mr Kiss was largely of the same opinion as Mr Dyer, that is, that although the Applicant has drunk alcohol on occasions, the Applicant has not become aggressive or inappropriate and has not drunk to the point of being conspicuously affected by alcohol.
Mr Kiss was aware of the applicant’s criminal history and was very open to the possibility that the Applicant had been affected by alcohol on these occasions. Mr Kiss expressed the view that drinking to excess, even infrequently was not acceptable.
The evidence of the applicant certainly left the Tribunal with concerns that the applicant did not consider himself to have an alcohol problem and that binge drinking was seen by him to be acceptable.
It is noted however that at the end of the Hearing, having heard the remarks made by Mr Kiss and the comments of the Tribunal members and the representative for the Commissioner, the Applicant did appear to appreciate that his understanding of alcohol, particularly in the context of drinking infrequently but drinking large amounts, was lacking.
Propensity for Violence
Another significant issue for the Tribunal’s consideration was whether the applicant has a propensity for violence which could make him an unacceptable risk to children.
In considering this issue it is relevant to consider the context in which the three incidents involving victims occurred.
According to the oral evidence of the Applicant and the Court Brief, the assault upon the victim arose as a result of the Applicant believing that the victim posed a threat to the Applicant’s brother. Although this may make the Applicant’s actions less repugnant, the fact remains that he reacted with violence to a situation rather than in a mature way.
This can also be said of the second incident. In this occasion the Applicant was aggrieved by the acts of a friend as a result of learning that his friend had been involved with the Applicant’s former girlfriend. When the applicant became aggressive towards this friend a security guard attempted to restrain the Applicant and the Applicant resisted with force. Again, although there was a context in which the incident occurred that made the applicant’s actions less reprehensible, the incident reflects a tendency to act with physical force.
In relation to the third incident, the Applicant’s actions could not be described as violent however they do reflect a lack of respect for others and an inappropriate impulsivity.
The report undertaken by Adam Cole is of assistance in considering this aspect.
Mr Cole’s report refers to a Personality Assessment Inventory (PAI) carried out by him to assess aspects of the Applicant’s personality. His report states that the test is the “equivalent of an Australian version of the better known Minnesota Multiphasic Personality Inventory (MMP1)”. The Tribunal does not have sufficient information to gauge this methodology nor the way it was applied in this case. However, to some extent, the finds recorded by Mr Cole do appear consistent with the information that was presented by the Commission and the Applicant’s own evidence.
The Tribunal notes that Mr Cole’s comments as follows:
“The Applicant’s results on the Antisocial scale indicated that he was a person who is reasonably empathic and warm in is relationships with other people. People who score in this range typically exhibit reasonable control over their impulses and their behaviour.”
The Tribunal considers it unlikely that the Applicant is an inherently violent person or a person incapable of exercising appropriate control even in stressful situations.
It is the Tribunal’s view that the most compelling evidence in this regard is the Applicant’ oral evidence to the effect that apart from one minor incident, there have been no violent incidents involving him in a football game. The Tribunal notes that none of the incidents leading to the criminal charges arose out of football games where it can be reasonably assumed that a lack of control or propensity for violence would become evident quite rapidly.
It is also noted that Mr Kiss reported that he had seen the Applicant handle stressful situations involving the parents of children and that the Applicant had been able to deal with conflictual situations calmly and without aggression.
Other Risk Factors
There are a number of other facets to a consideration of the risk factors reflected in the Applicant’s criminal history.
One of these facets is the Applicant’s ability to empathise with those he has hurt through his actions and to feel remorse for his actions.
Having raised this aspect with the Applicant, the Tribunal is left with the impression that the Applicant is capable of understanding the pain, inconvenience and discomfit to which he has put the victims of his actions. However, the Tribunal is of the view that the Applicant was inclined to over-state the extent to which the victim’s actions contributed to his responses and to understate the inappropriateness of his responses.
Another concerning feature of the Applicant’s criminal history is that it does suggest a lack of regard for the law. This is very vividly demonstrated by the conviction for driving while unlicensed.
Assessment of the Risk factors
Having found that the applicant’s past conduct does raise certain risks, the Tribunal then considered whether this risk is such as to amount to an unacceptable risk to children.
The Applicant oral evidence does suggest that he has matured since the offences were committed. He is now 22 years of age and the offences were committed in a period starting in late 2006 and ending in July 2008.
The Applicant points to the fact that he has started full-time work and has responsibilities that have flowed from this as being a major reason for his maturity. He points also to the fact that he is no longer living at home and that he now has financial commitments such as paying rent and for groceries.
The Tribunal notes that Mr Cole made the following comments in his report:
“On the basis of the information gathered during interviews and from his PAI results, it is clear that the Applicant is not a typically violent person, antisocial or criminal individual. Although he has an unfortunate history of incidents requiring Police involvement, the incidents themselves do not really reflect delinquency or antisocial tendencies. At the worst, they indicate a degree of immaturity that is fairly typical of teenagers, even of teenagers in the later teen years.”
The Tribunal tends to agree that immaturity played a significant part in the offences and that the Applicant has since that time learnt some important lessons and gained some maturity.
In relation to the Applicant’s use of alcohol, the Tribunal does accept Mr Cole’s findings which are in effect that although the Applicant does not have an alcohol dependency, he has insufficient understanding and tends to under-estimate the affect that alcohol may have upon him.
It was apparent from the evidence of Mr Shane Kiss that an abuse of alcohol is a matter that the Aspley RLC would take very seriously. Mr Kiss said that the Applicant is in the position of role-model to the children that he is likely to come into contact with within his employment. Mr Kiss said that if it came to the knowledge of the applicant’s employer that he had been binge drinking, he would probably lose his employment.
It is apparent from the evidence of both Mr Dyer and Mr Kiss that there is a significant investment being made by Brisbane Broncos and others in educating children in relation to the effects of alcohol and that an abuse of alcohol would be contrary to the campaigns being promoted by these organizations.
Mr Kiss impressed as a person who has a clear understanding that drinking to excess, even within the privacy of a person’s own home and infrequently, is not a healthy or desirable habit. Mr Kiss did not adopt the position that simply because a high proportion of young people drink, the Applicant’s drinking habits did not present a problem.
It was clear from Mr Kiss’s evidence that the Applicant has been granted a last chance by his employer to demonstrate that he can both publicly and privately act in a way that will not bring him and others into danger. In addition, Mr Kiss highlighted that the Applicant will be expected to act as a good role model for the children with whom he has contact.
In his submission to the Tribunal, the legal representative conceded that there are a number of strong protective factors at play in the Applicant’s case.
One of the strongest protective factors is the Applicant’s wish to remain in his current employment and to return to having contact with children. In relation to this, it was clear from the evidence of both Paul Dyer and Shane Kiss that the Applicant has considerable ability to communicate and interact with children and that it is largely for this reason that the Applicant has been kept on by his employer pending the outcome of the Blue Card application.
Mr Kiss reported that there have never been any complaints in relation to the Applicant’s work with children and that in fact, the Club has received many positive reports of the Applicant from parents.
The Tribunal also sees the Applicant’s stable family background and a generally positive and healthy approach to his relationships with others as a positive sign. Certainly the Applicant impresses as an optimistic young man with a great deal of potential in the area of working with children and promoting football.
The representative for the Commissioner did point to the Applicant’s lack of regard for the law in his final submissions. The Applicant does appear to have disregarded the law and this is of concern. However again, this could be seen to be part of the Applicant’s lack of maturity at the time the offences were committed.
Conclusion
The Commission bears the onus in this matter of showing that the Applicant’s case is exceptional and that although, in the normal course, he is entitled to a Blue Card, that it should be denied.
In considering whether the Applicant’s case is exceptional, the Tribunal has considered whether the Applicant would pose an unacceptable risk to children if he were granted a Blue Card. In considering this issue the Tribunal has also considered the risk that could be posed to children from coming into contact with an inappropriate role model.
On the face of the material before the Commission, the Applicant’s case does appear exceptional in terms of the pattern of behaviour reflected in his criminal history.
Having had the benefit of hearing from the Applicant in relation to changes in his social habits and life-style, the Tribunal is of the view that the Applicant is unlikely to act in an aggressive or violent manner towards children or in their presence. It is clear from the material and the references provided by the witnesses, that the Applicant has a very good history in relation to his interaction with children, and the Tribunal does not consider that this is likely to alter.
It is of some concern to the Tribunal that the Applicant does not have sufficient understanding of the effects of alcohol, particularly binge drinking. However given that the Applicant is well aware of the need for him to further modify his drinking habits, and the Applicant’s strong desire to maintain his employment, there appears to be minimal risk to children in this respect. It is further noted that, within his current employment, alcohol will not be available at social functions at which children are present.
In relation to Section 102 A (2) of the Act, the following is the position:-
(a) The Applicant was convicted of Assault Occasioning Bodily Harm and Common Assault with no convictions recorded. It is noted that although the Applicant pleaded guilty to a charge of grievous bodily harm, the charge was dismissed;
(b) The offences of Assault Occasioning Bodily Harm and Common Assault are not serious offences nor disqualifying offences;
(c) The charges of grievous bodily harm and the offences of Assault Occasioning Bodily Harm and Common Assault occurred between October 2004 and May 2008;
(d) The pattern of offences is such that it raises questions of the Applicant’s suitability to have contact with children in the course of his employment. The Tribunal is satisfied that the Applicant is not an inherently violent person nor otherwise presents unacceptable risk of harm to children;
(e) The Applicant was placed on Probation Order for 2 years which will end in May 2010 with no conviction recorded in relation to the offence of Assault Occasioning Bodily Harm. In relation to the conviction for common assault, the Applicant was placed on a two years Good Behaviour Order which is due to expire in July 2010. In relation to the conviction for driving whilst unlicensed, the Applicant was disqualified from driving for two years ;
(f) The Tribunal in assessing the risk to children in this case, has considered the influence that the Applicant may have with children as a role-model and formed the view that an unacceptable risk does not arise in that respect.
The Tribunal has concluded that although there are some risks attaching to the Applicant holding a Blue Card, those risks are not unacceptable. The Tribunal notes that none of the offences involved children. Although this is one consideration, the most important matter to be considered is whether a person has such undesirable attributes as to make them an unacceptable risk to children.
In the light of the evidence available at the Hearing and from the written material, the Tribunal does not consider that the Applicant’s circumstances amount to an exceptional case.
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