2007 No.1351 (N.I. 11)
The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007
Made
Laid
Coming into operation in accordance with Article 1(2) and (3)
At the Court at Buckingham Palace, the 2nd day of May 2007
Present,
The Queen's Most Excellent Majesty in Council
Whereas this Order in Council is made only for purposes corresponding to those of the Safeguarding Vulnerable Groups Act 2006 (c. 47):
Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c. 1) (as modified by section 55 of the said Act of 2006) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:–
Title and commencement
Title and commencement1
1
This Order may be cited as the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.
2
This Article and Articles 2 to 4, 58 and 61 come into operation two weeks after the day on which this Order is made.
P13
The other provisions of this Order come into operation on such day or days as the Secretary of State may by order appoint.
Interpretation
Interpretation2
1
Subject to Article 22(1), the Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.
F862A
In this Order—
“the 1972 Order” means the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14);
“the 2003 Order” means the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (NI 9);
F82 “adult” means a person who has attained the age of 18;
“the adults' barred list” must be construed in accordance with Article 6(1)(b);
“barred list” means the children's barred list or the adults' barred list;
“child” means a person who has not attained the age of 18;
“the Children Order” means the Children (Northern Ireland) Order 1995 (NI 2);
“the children's barred list” must be construed in accordance with Article 6(1)(a);
“employment agency” and “employment business” must be construed in accordance with Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20);
F1“HSC body” means any of the following within the meaning of the Health and Social Care (Reform) Act (Northern Ireland) 2009—
- a
the Regional Health and Social Care Board;
- b
the Regional Agency for Public Health and Social Well-being;
- c
a HSC trust;
- d
a special agency;
- e
the Patient and Client Council;
- a
“ F208DBS ” must be construed in accordance with Article 5;
F84...
“F2social care” has the same meaning as in the 1972 Order;
“personnel supplier” means—
- a
a person carrying on an employment agency or an employment business, or
- b
an educational institution which supplies to another person a student who is following a course at the institution, for the purpose of enabling the student to obtain experience of engaging in regulated F85... activity;
- a
“prescribed” means prescribed by regulations made by the Secretary of State;
F3“RQIA” means the Health and Social Care Regulation and Quality Improvement Authority;
“statutory provision” must be construed in accordance with section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c,33);
“supervisory authority” must be construed in accordance with Article 47(7);
“vulnerable adult” F83means any adult to whom an activity which is a regulated activity relating to vulnerable adults by virtue of any paragraph of paragraph 7(1) of Schedule 2 is provided .
2
A reference (however expressed) to a person being barred must be construed in accordance with Article 7.
F873
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Nothing in this Order affects any power to provide information which exists apart from this Order.
Vulnerable adultsF883
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Family and personal relationships4
1
This Order does not apply to any activity which is carried out in the course of a family relationship.
2
This Order does not apply to any activity which is carried out—
a
in the course of a personal relationship, and
b
for no commercial consideration.
3
A family relationship includes a relationship between two persons who—
a
live in the same household, and
b
treat each other as though they were members of the same family.
4
A personal relationship is a relationship between or among friends.
5
A friend of a person (A) includes a person who is a friend of a member of A's family.
6
The Secretary of State may by order provide that an activity carried out in specified circumstances either is or is not—
a
carried out in the course of a family relationship;
b
carried out in the course of a personal relationship.
Barring
The F226Disclosure and Barring ServiceF2265
In this Order references to DBS are references to the Disclosure and Barring Service established by section 87(1) of the Protection of Freedoms Act 2012.
Barred listsI16
2
Part I of Schedule 1 applies for the purpose of determining whether an individual is included in the children's barred list.
3
Part II of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list.
4
Part III of that Schedule contains supplementary provision.
5
In respect of an individual who is included in a barred list, F209DBS must keep other information of such description as is prescribed.
Barred personsI2C17
1
A reference to a person being barred from regulated activity must be construed in accordance with this Article.
2
A person is barred from regulated activity relating to children if he is—
a
included in the children's barred list; or
b
included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the children's barred list.
3
A person is barred from regulated activity relating to vulnerable adults if he is—
a
included in the adults' barred list; or
b
included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the adults' barred list.
AppealsI3C2C38
1
An individual who is included in a barred list may appeal to the Care Tribunal against—
F89a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
a decision under paragraph 17 F93, 18 or 18A of that Schedule not to remove him from the list.
2
An appeal under paragraph (1) may be made only on the grounds that F210DBS has made a mistake—
a
on any point of law;
b
in any finding of fact which it has made and on which the decision mentioned in that paragraph was based.
3
For the purposes of paragraph (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.
4
An appeal under paragraph (1) may be made only with the leave of the Care Tribunal.
5
6
If the Care Tribunal finds that F210DBS has made such a mistake it must—
a
direct F210DBS to remove the person from the list, or
b
remit the matter to F210DBS for a new decision.
7
If the Care Tribunal remits a matter to F210DBS under paragraph (6)(b)—
a
the Care Tribunal may set out any findings of fact which it has made (on which F210DBS must base its new decision); and
b
the person must be removed from the list until F210DBS makes its new decision, unless the Care Tribunal directs otherwise.
8
In this Article “the Care Tribunal” means the Tribunal established under Article 44 of the 2003 Order.
Regulated activity
Regulated activityI49
1
A reference to regulated activity relating to children must be construed in accordance with Part I of Schedule 2.
2
A reference to regulated activity relating to vulnerable adults must be construed in accordance with Part II of that Schedule.
3
The Secretary of State may by order amend that Schedule, or any of the modifications of that Schedule in the provisions mentioned in paragraph (4), so as to vary the meaning of—
a
regulated activity relating to children;
b
regulated activity relating to vulnerable adults.
Regulated activity providers
Regulated activity providersI510
1
A reference to a regulated activity provider must be construed in accordance with this Article.
2
A person (P) is a regulated activity provider if—
a
he is responsible for the management or control of regulated activity,
b
if the regulated activity is carried out for the purposes of an organisation, his exercise of that responsibility is not subject to supervision or direction by any other person for those purposes, and
c
he makes, or authorises the making of, arrangements (whether in connection with a contract of service or for services or otherwise) for another person to engage in that activity.
3
A person (P) is also a regulated activity provider if Article 55(4) (fostering) so provides.
4
A person (P) is also a regulated activity provider if he carries on a scheme—
a
under which an individual agrees with P to provide care or support (which may include accommodation) to an adult who is in need of it, and
b
in respect of which a requirement to register arises under Article 12 of the 2003 Order.
5
P is not a regulated activity provider if he is an individual and the arrangements he makes are private arrangements.
6
Arrangements are private arrangements if the regulated activity is for, or for the benefit of, P himself.
7
Arrangements are private arrangements if the regulated activity is for, or for the benefit of, a child or vulnerable adult who is—
a
a member of P's family;
b
a friend of P.
8
A person does not make arrangements for another to engage in a regulated activity merely because he (alone or together with others) appoints that person—
F203a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
as a controller under Article 101 of the Mental Health (Northern Ireland) Order 1986 (NI 4);
F203c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F948A
An authority that is an authority for the purposes of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (c.6) or Article 18C of the Children Order (direct payments) does not make arrangements for another to engage in a regulated activity by virtue of anything the authority does under that section or Article.
9
For the purposes of paragraph (7) it is immaterial whether P is also acting in any capacity other than as a family member or friend.
10
If a regulated activity provider is an unincorporated association any requirement of or liability (including criminal liability) under this Order must be taken to be a requirement on or liability of—
a
the person responsible for the management and control of the association, or
b
if there is more than one such person, all of them jointly and severally.
11
“Family” and “friend” must be construed in accordance with Article 4.
12
The Secretary of State may by order provide that in specified circumstances a person who makes, or authorises the making of, arrangements (of any description) for another to engage in regulated activity either is or is not a regulated activity provider.
Restrictions on participating in regulated activity
Barred person not to engage in regulated activity11
1
An individual commits an offence if he—
a
seeks to engage in regulated activity from which he is barred;
b
offers to engage in regulated activity from which he is barred;
c
engages in regulated activity from which he is barred.
2
A person guilty of an offence under paragraph (1) is liable—
a
on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both;
b
on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both.
3
It is a defence for a person charged with an offence under paragraph (1) to prove that he did not know, and could not reasonably be expected to know, that he was barred from that activity.
4
It is a defence for a person charged with an offence under paragraph (1) to prove—
a
that he reasonably thought that it was necessary for him to engage in the activity for the purpose of preventing harm to a child or vulnerable adult (as the case may be),
b
that he reasonably thought that there was no other person who could engage in the activity for that purpose, and
c
that he engaged in the activity for no longer than was necessary for that purpose.
Person not to engage in regulated activity unless subject to monitoringF6212
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Use of barred person for regulated activity13
1
A person commits an offence if—
a
he permits an individual (B) to engage in regulated activity from which B is barred,
b
he knows or has reason to believe that B is barred from that activity; and
c
B engages in that activity.
2
A personnel supplier commits an offence if—
a
he supplies an individual (B) to another (P),
b
he knows or has reason to believe that P will make arrangements for B to engage in regulated activity from which B is barred, and
c
he knows or has reason to believe that B is barred from that activity.
3
A person guilty of an offence under this Article is liable—
a
on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both;
b
on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both.
4
It is a defence for a person charged with an offence under this Article to prove—
a
that he reasonably thought that it was necessary for the barred person to engage in the activity for the purpose of preventing harm to a child or vulnerable adult (as the case may be),
b
that he reasonably thought that there was no other person who could engage in the activity for that purpose, and
c
that the barred person engaged in the activity for no longer than was necessary for that purpose.
Use of person not subject to monitoring for regulated activityF6414
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Regulated activity provider: failure to checkF65I615
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Personnel suppliers: failure to checkF66I716
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Educational establishments: check on members of governing bodyF67I817
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Office holders: offencesF68I918
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Articles 17 and 18: checksF6919
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Exceptions
Exception to requirement to make monitoring checkF7020
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
HSS employmentF7121
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Offences: supplementary
Offences: companies, etc.I1022
1
For the purposes of an offence under Article 13F72...or 40 F73..., section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33) applies with the omission of the words “the liability of whose members is limited” and where the affairs of a body corporate are managed by its members, applies in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.
2
If an offence under Article 13F74...or 40 F75... is committed by a partnership (whether or not a limited partnership) and is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of—
a
a partner, or
b
a person purporting to act as a partner,
he (as well as the partnership) commits the offence.
Offences: other personsI1123
F761
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
A person commits an offence if, in the course of acting or appearing to act on behalf of a personnel supplier—
a
he supplies an individual (B) to another (P),
b
he knows or has reason to believe that P will make arrangements for B to engage in regulated activity from which B is barred, and
c
he knows or has reason to believe that B is barred from the activity.
F773
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F774
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
A person guilty of an offence under paragraph (2) is liable—
a
on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both;
b
on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both.
F786
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F787
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
For the purpose of F79paragraph (2)(b) , Schedule 2 is modified as follows—
a
in paragraph 1, sub-paragraphs (1)(b) and (2)(a) must be disregarded;
F80b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F80c
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F819
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 23: exclusions and defencesI1224
1
A person does not commit an offence under Article 23 if B has not attained the age of 16.
F592
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F593
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F594
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F595
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F596
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F597
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Controlled activity
Controlled activity relating to childrenF5525
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Controlled activity relating to vulnerable adultsF5526
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Controlled activity: regulationsF5527
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Monitoring
MonitoringF5628
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Monitoring: power to prescribe additional feesF5628A
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Monitoring feesF5629
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Ceasing monitoringF5630
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Prohibition of requirement to produce certain recordsF5631
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Notices and information
Provision of vetting informationI1332
1
The Secretary of State must provide a person (A) with the information mentioned in paragraph (4) in relation to another (B) if—
a
A makes an application for the information,
b
the application contains the appropriate declaration, and
c
the Secretary of State has no reason to believe that the declaration is false.
2
The appropriate declaration is a declaration by A—
a
that he falls within column 1 of F4the table in Schedule 5,
F5aa
that column 2 of the entry by virtue of which A falls within column 1 refers to children or (as the case may be) vulnerable adults,
ab
whether the information is sought by A with a view to permitting or supplying B to carry out paid activity or with a view to making a check in accordance with Article 19(2)(a) in relation to the appointment of B to a position in which B will carry out paid activity, and
b
that B has consented to the provision of the information to A.
F62A
The Secretary of State may refuse to provide A with the information if B has failed to pay a fee required by Article 28A.
3
F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
The information is—
a
if F8A's declaration states that column 2 of the relevant entry refers to children, relevant information relating to children, and
b
if F8A's declaration states that column 2 of the relevant entry refers to vulnerable adults, relevant information relating to vulnerable adults.
5
F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
If B consents to the provision of information to A in relation to an application under this Article, the consent also has effect in relation to any subsequent such application by A.
F106A
“Paid activity” means an activity carried out for financial gain.
6B
The Secretary of State may by regulations provide for an activity to be treated as, or not to be treated as, an activity carried out for financial gain.
7
The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article (including the form and manner of a declaration contained in such an application).
8
The Secretary of State may by regulations make provision requiring an authority which makes or proposes to make payments to or on behalf of a person in accordance with regulations under Article 18C of the Children Order or section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (c. 6) to inform the person of his right to obtain relevant information under this Article.
Meaning of relevant information in Article 32I1433
1
This Article has effect for the purposes of Article 32.
2
Relevant information relating to children is—
a
whether B is subject to monitoring in relation to regulated activity relating to children, and
b
if so, whether he is undergoing assessment.
3
Relevant information relating to vulnerable adults is—
a
whether B is subject to monitoring in relation to regulated activity relating to vulnerable adults, and
b
if so, whether he is undergoing assessment.
4
B is undergoing assessment if—
a
the Secretary of State is required to notify B as mentioned in Article 28(4) in connection with B's monitoring application but has not yet done so;
b
B has made a simultaneous application under section 113B of the Police Act 1997 but the Secretary of State has not yet issued an enhanced criminal record certificate under that section;
c
in relation to paragraph (2)(b), IBB is considering whether to include B in the children's barred list in pursuance of paragraph 3 or 5 of Schedule 1;
d
in relation to paragraph (3)(b), IBB is considering whether to include B in the adults' barred list in pursuance of paragraph 9 or 11 of that Schedule.
5
In paragraph (4)(b) “simultaneous application” means an application made simultaneously with B's monitoring application under Article 28.
6
The Secretary of State may by order amend the preceding provisions of this Article for the purpose of altering the meaning of relevant information relating to children or vulnerable adults (as the case may be).
Notification of cessation of monitoringI1534
1
The Secretary of State must establish and maintain a register for the purposes of this Article.
2
The Secretary of State must register a person (A) in relation to another (B) if—
a
A makes an application to be registered in relation to B,
b
the application contains the appropriate declaration,
c
the Secretary of State has no reason to believe that the declaration is false, and
d
B is subject to monitoring in relation to the regulated activity to which the application relates.
3
The appropriate declaration is a declaration by A—
a
that he falls within column 1 of F11the table in Schedule 5,
F12aa
that column 2 of the entry by virtue of which A falls within column 1 refers to children or (as the case may be) vulnerable adults, and
b
that B has consented to the application.
4
F13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
A's application and registration relate—
a
if F14A's declaration states that column 2 of the relevant entry refers to children, to regulated activity relating to children;
b
if F14A's declaration states that column 2 of the relevant entry refers to vulnerable adults, to regulated activity relating to vulnerable adults.
6
The Secretary of State must notify A if B ceases to be subject to monitoring in relation to the regulated activity to which A's registration relates.
7
The requirement under paragraph (6) is satisfied if notification is sent to any address recorded against A's name in the register.
8
F15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
If B consents to the provision of information to A under Article 32 the consent also has effect as consent to any application by A to be registered in relation to B under this Article.
10
The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article (including the form and manner of a declaration contained in such an application).
Cessation of registrationI1635
1
In this Article references to registration are to registration in the register maintained for the purposes of Article 34.
2
Once a person is notified as mentioned in paragraph (6) of that Article, his registration ceases.
3
F228DBS may cancel a person's registration in such circumstances as are prescribed.
4
F229DBS must cancel a person's registration—
a
if the person applies for it to be cancelled;
b
in prescribed circumstances, if the person in relation to whom he is registered applies for it to be cancelled.
5
When a person's registration is cancelled under paragraph (3) or (4)(b), F230DBS must notify him of that fact.
6
The requirement under paragraph (5) is satisfied if notification is sent to any address recorded against A's name in the register.
Declarations under Articles 32 and 3436
1
An individual commits an offence if, in an application made for the purposes of Article 32 or 34—
a
he makes a false declaration, and
b
he either knows that it is false or is reckless as to whether it is false.
2
A person guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
F16Notification of proposal to include person in children's barred list36A
1
If ISA proposes to include a person (B) in the children's barred list in the circumstances mentioned in paragraph 3(1) or 5(1) of Schedule 1, it—
a
must notify any person who is registered in relation to B under Article 34 in relation to regulated activity relating to children, and
b
may notify any other person who it is satisfied falls within paragraph (2).
2
The following fall within this paragraph—
a
any person who is permitting B to engage in regulated activity relating to children,
b
any responsible person (within the meaning of Article 27) who is permitting B to engage in controlled activity relating to children.
3
A notification under this Article must—
a
explain that ISA has not yet taken a final decision about whether to include B in the barred list, and
b
include such information as ISA thinks appropriate about its reasons for proposing to include B in the barred list.
4
The requirement to notify a person under paragraph (1)(a) is satisfied if notification is sent to any address recorded against that person's name in the register.
Notification of proposal to include person in adults' barred list36B
1
If ISA proposes to include a person (B) in the adults' barred list in the circumstances mentioned in paragraph 9(1) or 11(1) of Schedule 1, it—
a
must notify any person who is registered in relation to B under Article 34 in relation to regulated activity relating to vulnerable adults, and
b
may notify any other person who it is satisfied falls within paragraph (2).
2
The following fall within this paragraph—
a
any person who is permitting B to engage in regulated activity relating to vulnerable adults,
b
any responsible person (within the meaning of Article 27) who is permitting B to engage in controlled activity relating to vulnerable adults.
3
A notification under this Article must—
a
explain that ISA has not yet taken a final decision about whether to include B in the barred list, and
b
include such information as ISA thinks appropriate about its reasons for proposing to include B in the barred list.
4
The requirement to notify a person under paragraph (1)(a) is satisfied if notification is sent to any address recorded against that person's name in the register.
Articles 36A and 36B: notification of outcome36C
1
Paragraph (2) applies if ISA—
a
has notified a person (A) under Article 36A or 36B that it proposes to include another (B) in a barred list, and
b
includes B in the barred list or decides not to do so.
2
ISA must notify A that it has included B in the barred list or that it has decided not to do so (as the case may be).
3
In a case where A is registered in relation to B under Article 34 (or has ceased to be so registered by virtue of B's inclusion in the barred list), the requirement in paragraph (2) is satisfied if notification is sent to any address recorded (or, as the case may be, formerly recorded) against A's name in the register.
Regulated activity providers: duty to referI1737
1
Paragraph (2) applies to—
a
a regulated activity provider who holds any prescribed information in relation to a person (P) engaged in regulated activity provided by him;
F60b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
A person to whom this paragraph applies must provide F211DBS with the information if—
a
he withdraws permission for P to engage in the activity for a reason mentioned in paragraph (3), or
b
he does not withdraw permission for such a reason but would or might have done so if P had not otherwise ceased to engage in the activity.
3
The reasons are that the person to whom paragraph (2) applies thinks—
a
that paragraph 1, 2, 7 or 8 of Schedule 1 applies to P,
b
that P has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1), or
c
that the harm test is satisfied.
4
The harm test is that P may—
a
harm a child or vulnerable adult,
b
cause a child or vulnerable adult to be harmed,
c
put a child or vulnerable adult at risk of harm,
d
attempt to harm a child or vulnerable adult, or
e
incite another to harm a child or vulnerable adult.
5
For the purposes of paragraph (3)(b), conduct is inappropriate if it appears to the person to whom paragraph (2) applies to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.
F616
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
This Article does not apply if the conditions specified in paragraph (2) are fulfilled before the Article is commenced.
Personnel suppliers: duty to referI1838
1
A personnel supplier must provide F211DBS with any prescribed information it holds in relation to a person (P) who has been supplied by it to another person if the supplier knows that P has ceased to be engaged in regulated activity F98... in the circumstances mentioned in paragraph (2)(a) or (b) of Article 37.
2
A personnel supplier which is an employment agency or employment business must provide F211DBS with any prescribed information it holds in relation to a person (P) for whom it acts if—
a
the agency or business determines to cease to act for P for a reason mentioned in paragraph (4), or
b
it does not determine to cease to act for P for such a reason but would or might have done so if its arrangement with, or employment of, him had not otherwise come to an end.
3
A personnel supplier which is an educational institution must provide F211DBS with any prescribed information it holds in relation to a student (P) following a course at the institution if—
a
the institution determines to cease to supply P to another person for him to engage in regulated F99... activity for a reason mentioned in paragraph (4),
b
the institution determines that P should cease to follow a course at the institution for a reason mentioned in paragraph (4), or
c
it does not determine as mentioned in sub-paragraph (a) or (b) for such a reason but would or might have done so if P had not otherwise ceased to engage in the activity or ceased to follow the course.
4
The reasons are that the personnel supplier thinks—
a
that paragraph 1, 2, 7 or 8 of Schedule 1 applies to P,
b
that P has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1), or
c
that the harm test is satisfied.
5
The harm test is that P may—
a
harm a child or vulnerable adult,
b
cause a child or vulnerable adult to be harmed,
c
put a child or vulnerable adult at risk of harm,
d
attempt to harm a child or vulnerable adult, or
e
incite another to harm a child or vulnerable adult.
6
For the purposes of paragraph (4)(b), conduct is inappropriate if it appears to the personnel supplier to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.
7
An employment agency acts for a person if it makes arrangements with him with a view to—
a
finding him employment with an employer, or
b
supplying him to employers for employment by them.
8
An employment business acts for a person if it employs him to act for and under the control of other persons in any capacity.
9
In this Article “employment” has the same meaning as in Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20).
10
This Article does not apply if the conditions specified in paragraph (1), (2) or (3) are fulfilled before the Article is commenced.
Regulated activity providers: duty to provide information on request etc.I1939
1
This Article applies if F211DBS is considering—
a
whether to include any person in a barred list;
b
whether to remove any person from a barred list.
2
F211DBS may require—
a
any regulated activity provider who has made arrangements for that person to engage in regulated activity (whether or not the arrangements are still in place),
F100b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
any personnel supplier which is an employment agency or employment business and which acts for or has acted for that person, or
d
any personnel supplier which is an educational institution and which has supplied that person to another person for him to engage in regulated F101... activity,
to provide F211DBS with any prescribed information he or it holds relating to the person.
3
An employment agency acts for a person if it makes arrangements with him with a view to—
a
finding him relevant employment with an employer, or
b
supplying him to employers for relevant employment by them.
4
Relevant employment is employment which consists in or involves engaging in regulated F102... activity.
5
An employment business acts for a person if it employs him to engage in regulated F103... activity for and under the control of other persons.
6
In this Article “employment” has the same meaning as in Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20).
Duty to provide information: offencesI2040
1
A person commits an offence if—
a
he is required under Article 37 or 38 or in pursuance of Article 39 to provide information to F211DBS , and
b
he fails, without reasonable excuse, to provide the information.
2
A person guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Education and Library Boards and F26HSC Bodies
F256The Education Authority and F17HSC Bodies: F104power to referI2141
1
2
a
that paragraph 1, 2, 7 or 8 of Schedule 1 applies to the person,
b
that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring after the commencement of this Article, or
c
that the harm test is satisfied.
3
The harm test is that the person may—
a
harm a child or vulnerable adult,
b
cause a child or vulnerable adult to be harmed,
c
put a child or vulnerable adult at risk of harm,
d
attempt to harm a child or vulnerable adult,
e
incite another to harm a child or vulnerable adult.
4
a
F263The Education Authority and F24HSC bodies: duty to provide information on requestI2242
1
This Article applies if F211DBS is considering—
a
whether to include any person in a barred list;
b
whether to remove any person from a barred list.
2
3
F266The Education Authority or the body must comply with a requirement under paragraph (2).
Professional bodies and supervisory authorities
Registers: F111power to referI2343
1
2
The first condition is that the keeper thinks—
a
that paragraph 1, 2, 7 or 8 of Schedule 1 applies to the person,
b
that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring after the commencement of this Article, or
c
that the harm test is satisfied.
3
The harm test is that the person may—
a
harm a child or vulnerable adult,
b
cause a child or vulnerable adult to be harmed,
c
put a child or vulnerable adult at risk of harm,
d
attempt to harm a child or vulnerable adult, or
e
incite another to harm a child or vulnerable adult.
4
The second condition is that the keeper thinks—
a
F1184B
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1184C
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
A keeper of a relevant register may provide F211DBS with any F117... information he holds relating to a person if—
a
he thinks that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring before the commencement of this Article, and
b
the condition in paragraph (4) is satisfied.
6
For the purposes of paragraph (2)(b) or (5)(a), conduct is inappropriate if it appears to the keeper to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.
7
In this Article—
a
a relevant register is a register appearing in column 1 of the following table, and
b
in relation a relevant register, the keeper of the register is the corresponding person appearing in column 2 of the table.
Relevant register | Keeper of the register |
|---|---|
| The General Teaching Council for Northern Ireland |
| The registrar appointed under Article 9(1) of that Order |
| The registrar of the General Medical Council |
| The registrar appointed under section 14 of that Act |
| The registrar of the General Optical Council |
| The Registrar of Osteopaths |
| The Registrar of Chiropractors |
| The Northern Ireland Social Care Council |
| The registrar appointed under Article 4 of that Order |
| The registrar appointed under Article 4 of that Order |
8
The Secretary of State may by order amend the table in paragraph (7) by inserting an entry or amending or omitting an entry for the time being contained in the Table.
Registers: duty to provide information on requestI2444
1
This Article applies if F211DBS is considering—
a
whether to include in a barred list a person who appears on a relevant register;
b
whether to remove such a person from a barred list.
2
F211DBS may require the keeper of the register to provide it with any prescribed information he holds relating to the person.
3
The keeper of the register must comply with a requirement under paragraph (2).
4
References to a relevant register and the keeper of a relevant register must be construed in accordance with Article 43(7).
Registers: F199provision of barring information to keepers of registersI2545
F1981
Paragraph (2) applies if—
a
F212DBS knows or thinks that a person (A) appears on a relevant register, and
b
either—
i
A is included in a barred list, or
ii
F212DBS is aware that A is subject to a relevant disqualification.
2
F212DBS must—
a
notify the keeper of the register of the circumstances mentioned in paragraph (1)(b)(i) or (as the case may be) (ii), and
3
Paragraph (4) applies if the keeper of a relevant register applies to F212DBS to ascertain in relation to a person (A) whether—
a
A is included in a barred list, or
b
F212DBS is aware that A is subject to a relevant disqualification.
4
F212DBS must notify the keeper of the register as to whether the circumstances are as mentioned in paragraph (3)(a) or (as the case may be) (b).
5
5A
Paragraph (5B) applies if—
a
a keeper of a register has applied to F231DBS to be notified in relation to a person (A) if—
i
A is included in a barred list, or
ii
F231DBS is aware that A is subject to a relevant disqualification, and
b
the application has not been withdrawn.
5B
F231DBS must notify the keeper of the register if the circumstances are, or become, as mentioned in paragraph (5A)(a)(i) or (as the case may be) (ii).
5C
For the purposes of paragraph (5A)(b) an application is withdrawn if—
a
the keeper of the register notifies F232DBS that the keeper no longer wishes to be notified if the circumstances are, or become, as mentioned in paragraph (5A)(a)(i) or (as the case may be) (ii) in relation to A, or
b
F232DBS cancels the application on either of the following grounds—
i
ii
that A neither appears in the register nor is being considered for inclusion in the register.
5D
A keeper of a relevant register may apply for information under this Article, or to be notified under this Article, in relation to a person (A) only if—
a
A appears in the register, or
b
A is being considered for inclusion in the register.
5E
5F
F233DBS may determine the form, manner and contents of an application for the purposes of this Article.
5G
In this Article relevant information is information—
a
which—
i
relates to the protection of children or vulnerable adults in general, or of any child or vulnerable adult in particular, and
ii
is relevant to the exercise of any function of the keeper of the register, but
b
which is not—
i
information that the circumstances are as mentioned in paragraph (1)(b)(i) or (ii) in relation to a person,
ii
any information provided under paragraph (2)(b), or
iii
information falling within paragraph 19(5) of Schedule 1.
5H
The Secretary of State may by order amend paragraph (5G).
I806
In this Article—
a
a relevant register is a register appearing in column 1 F29. . . of the table in Article 43(7), and
b
in relation a relevant register, the keeper of the register is the corresponding person appearing in column 2 of the Table.
I817
A person is subject to a relevant disqualification if he is included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to a barred list.
Registers: power to apply for vetting informationF119I2646
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Supervisory authorities: F120power to referI2747
1
2
The first condition is that the supervisory authority thinks, on the basis of relevant evidence—
a
that paragraph 1, 2, 7 or 8 of Schedule 1 applies to the person,
b
that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring after the commencement of this Article, or
c
that the harm test is satisfied.
3
The harm test is that the person may—
a
harm a child or vulnerable adult,
b
cause a child or vulnerable adult to be harmed,
c
put a child or vulnerable adult at risk of harm,
d
attempt to harm a child or vulnerable adult, or
e
incite another to harm a child or vulnerable adult.
4
The second condition is that the supervisory authority thinks—
a
5
The supervisory authority may provide F213DBS with any F126... information it holds relating to a person if—
a
it thinks, on the basis of relevant evidence, that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring before the commencement of this Article, and
b
the condition in paragraph (4) is satisfied.
F1276
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
A supervisory authority is—
a
F30RQIA in respect of its functions under the 2003 Order;
b
an inspector appointed under Article 102 of the Education and Libraries (Northern Ireland) Order 1986 in the exercise of his functions.
F31c
the Charity Commission for Northern Ireland in respect of its functions under the Charities Act (Northern Ireland) 2008 (c.12)
8
Relevant evidence is evidence obtained by the supervisory authority in the exercise of the functions mentioned in paragraph (7).
9
The Secretary of State may by order amend paragraph (7) by inserting a sub-paragraph or amending or omitting a sub-paragraph for the time being contained in that paragraph.
10
For the purposes of paragraph (2)(b) or (5)(a), conduct is inappropriate if it appears to the supervisory authority to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.
Supervisory authorities: duty to provide information on requestI2848
1
This Article applies if F213DBS is considering—
a
whether to include in a barred list a person in relation to whom F213DBS thinks that a supervisory authority may have prescribed information;
b
whether to remove such a person from a barred list.
2
F213DBS may require the supervisory authority to provide it with any prescribed information it holds relating to the person.
3
The supervisory authority must comply with a requirement under paragraph (2).
Supervisory authorities: power to apply for F128certain barring informationI2949
I821
I822
The information within this paragraph is—
a
whether B is barred from regulated activity relating to children,
F131b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F131c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F131d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F131e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I823
The information within this paragraph is—
a
whether B is barred from regulated activity relating to vulnerable adults,
F132b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F132c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F132d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F132e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I824
A supervisory authority may apply for information under this Article only if the information is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
F1295
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
The Secretary of State may by order amend this Article for the purpose of altering the information within paragraph (2) or (3).
Supervisory authorities: notification of barring, etc in respect of childrenI3050
1
This Article applies if—
a
a person is F204... included in the children's barred list,
F205c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F237DBS must notify every interested supervisory authority of the circumstance mentioned in sub-paragraph (a), (b) or (c) (as the case may be) of paragraph (1).
3
A supervisory authority is an interested supervisory authority only if—
a
it has applied to F238DBS to be notified if any of the circumstances mentioned in paragraph (1) occurs in relation to the person, and
b
the application has not been withdrawn.
4
A supervisory authority may apply to F239DBS under paragraph (3)(a) only if the notification is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
5
For the purposes of paragraph (3)(b) an application is withdrawn if the supervisory authority notifies F240DBS that it no longer wishes to be notified if any of the circumstances mentioned in paragraph (1) occurs in relation to the person.
6
A person is subject to a relevant children's disqualification if he is included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the children's barred list.
7
The Secretary of State may provide that in prescribed circumstances a supervisory authority is not an interested supervisory authority for the purposes of this Article.
Supervisory authorities: notification of barring, etc. in respect of vulnerable adultsI3151
1
This Article applies if—
a
a person is F206... included in the adults' barred list,
F207c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F243DBS must notify every interested supervisory authority of the circumstance mentioned in sub-paragraph (a), (b) or (c) (as the case may be) of paragraph (1).
3
A supervisory authority is an interested supervisory authority only if—
a
it has applied to F244DBS to be notified if any of the circumstances mentioned in paragraph (1) occurs in relation to the person, and
b
the application has not been withdrawn.
4
A supervisory authority may apply to F245DBS under paragraph (3)(a) only if the notification is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
5
For the purposes of paragraph (3)(b) an application is withdrawn if the supervisory authority notifies F246DBS that it no longer wishes to be notified if any of the circumstances mentioned in paragraph (1) occurs in relation to the person.
6
A person is subject to a relevant adults' disqualification if he is included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the adults' barred list.
7
The Secretary of State may provide that in prescribed circumstances a supervisory authority is not an interested supervisory authority for the purposes of this Article.
Provision of information to supervisory authoritiesI32I8452
1
This Article applies if F214DBS has information that it thinks is relevant to a supervisory authority.
2
3
Information is relevant to a supervisory authority if—
a
it relates to the protection of children or vulnerable adults in general, or of any child or vulnerable adult in particular, and
b
is relevant to the exercise of any function of the authority F137which is mentioned in Article 47(7) ,
but does not include information falling within paragraph 19(5) of Schedule 1 F138or of any circumstance mentioned in Article 50(1) or 51(1) in relation to a person.
F1354
A supervisory authority may apply to F214DBS under this Article only if the information is required in connection with the exercise of a function of the supervisory authority which is mentioned in Article 47(7).
5
F248DBS may determine the form, manner and contents of an application for the purposes of this Article.
F32Provision of information to the police
Art. 52A and preceding cross-heading inserted (30.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 91, 116(1); S.I. 2009/3096, art. 2(b)
Provision of information to the police F141etc.52A
1
F215DBS may provide any information it has to the chief constable of the Police Service of Northern Ireland F53, a chief officer of police or the chief constable of a police force in Scotland for use for any of the following purposes—
a
the prevention, detection and investigation of crime;
b
the apprehension and prosecution of offenders.
F54c
the appointment of persons who are under the direction and control of the chief constable or (as the case may be) chief officer;
d
any prescribed purpose
F1391A
F215DBS must, for use for any of the purposes mentioned in paragraph (1), provide to any chief constable or chief officer mentioned in that paragraph who has requested it a barred list or information as to whether a particular person is barred.
1B
1C
F215DBS must, for use for the purposes of the protection of children or vulnerable adults, provide to any relevant authority who has requested it information as to whether a particular person is barred.
1D
In this Article “relevant authority” means—
a
the Department of Justice, exercising functions in relation to prisons and youth justice,
b
the Probation Board for Northern Ireland, or
c
an HSC body.
Miscellaneous
Crown applicationI3353
1
Subject to the provisions of this Article, this Order and any regulations or orders made under it bind the Crown to the full extent authorised or permitted by the constitutional laws of Northern Ireland.
2
No contravention by the Crown of any provision of this Order or of any regulations or order made under it makes the Crown criminally liable.
3
Despite paragraph (2), this Order and any regulations or orders made under it apply to persons in Crown employment (within the meaning of the Employment Rights (Northern Ireland) Order 1996 (NI 16)) as they apply to other persons.
4
Paragraph (2) of Article 10 does not apply in relation to any activity carried out by the Crown.
5
Each government department and other body performing functions on behalf of the Crown—
a
if the department or body engages in regulated activity, is the regulated activity provider in relation to the activity;
F142b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
In paragraph (5) “body” includes office-holder.
Referrals: findings of fact immaterial54
1
For the purposes of the provisions mentioned in paragraph (2), it is immaterial whether there is a finding of fact in any proceedings.
2
The provisions are—
a
Article 37(3)(b) and (c);
b
Article 38(4)(b) and (c);
c
Article 41(2)(b) and (c) and (5)(a);
d
Article 43(2)(b) and (c) and (5)(a);
e
Article 47(2)(b) and (c) and (5)(a).
FosteringI3455
1
Despite Article 4, this Order applies to activity that is regulated activity by virtue of paragraph 1(5) of Schedule 2.
2
Paragraph (1) does not affect the operation of this Order in relation to any other activity that is carried out in connection with a foster child.
3
Paragraph (4) applies if a person (P)—
a
makes arrangements for another person to foster a child as a private foster parent, and
b
has power to terminate the arrangements.
4
P is, if he would not otherwise be, a regulated activity provider in relation to fostering carried out by the foster parent in pursuance of the arrangements.
5
The following provisions of this Article apply for the purposes of this Order.
6
A person fosters a child if he is a foster parent of the child.
7
A person is a foster parent if—
a
he is an authority foster parent within the meaning of Article 27(3) of the Children Order;
b
he is a person with whom a child has been placed by a voluntary organisation under Article 75(1)(a) of that Order;
c
he is a private foster parent.
8
A person is a private foster parent if he falls within paragraph (9) and looks after a child—
a
for reward, or
b
in pursuance of an arrangement made by someone other than a member of the child's family.
9
A person falls within this paragraph if—
a
he fosters the child privately within the meaning of Article 106(1) of the Children Order,
b
he would be so fostering the child but for Article 107(1) of that Order (minimum period of 28 days), or
c
(in the case of a child who has attained the age of 16) he would fall within sub-paragraph (a) or (b) if the child were under the age of 16.
10
A person's family includes—
a
the person's foster child;
b
the foster child of any member of the person's family;
and references to a family relationship and family member are to be construed accordingly.
Alignment with rest of UKI3556
1
The Secretary of State may, by order, make such provision (including provision amending any statutory provision, including this Order) as he thinks necessary or expedient in consequence of or having regard to any relevant England and Wales legislation or any relevant Scottish legislation.
2
An order may—
F143a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
confer power to make subordinate legislation.
3
Relevant England and Wales legislation is any provision applying in England or Wales made by or under an Act of Parliament which the Secretary of State thinks—
a
corresponds to provision made by or under this Order,
b
F144... or
c
affects the operation of any provision made by or under this Order.
4
Relevant Scottish legislation is any provision made by or under an Act of the Scottish Parliament which the Secretary of State thinks—
a
corresponds to provision made by or under this Order,
b
F145... or
c
affects the operation of any provision made by or under this Order.
F1465
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General
DamagesI3657
1
No claim for damages lies in respect of any loss or damage suffered by any person in consequence of—
a
the fact that an individual is included in a barred list;
b
the fact that an individual is not included in a barred list;
c
the provision of F147... information in pursuance of any of Articles 37, 38, 39, 41, 42, 43, 44, 47 and 48.
2
Paragraph (1)(c) does not apply to the provision of information which is untrue by a person who knows the information is untrue and either—
a
he is the originator of the information and he knew at the time he originated the information that it was not true, or
b
he causes another person to be the originator of the information knowing, at the time the information is originated, that it is untrue.
3
Nothing in this Order affects section 8 of the Human Rights Act 1998 (c. 42) as it relates to the power of a court to award damages in respect of an unlawful act of a public authority (within the meaning of that Act).
Orders and regulations58
1
Orders or regulations under this Order shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.
2
Paragraph (1) does not apply to an order made under Article 1, including such an order which contains provision made under Article 61 (except paragraph (3) of that Article).
Transitional provisionI3759
Schedule 6 has effect.
Amendments and repealsI3860
1
Schedule 7 contains amendments.
2
Schedule 8 contains repeals.
Supplementary, incidental, consequential etc. provision61
1
An order or regulations under this Order may include—
a
such supplementary, incidental or consequential provision, or
b
such transitory, transitional or saving provision,
as the Secretary of State thinks necessary or expedient.
2
The Secretary of State may by order make such further provision as he considers appropriate—
a
for the general purposes, or any particular purpose, of this Order;
b
in consequence of any provision made by this Order;
c
for giving full effect to this Order or any provision made by it.
3
An order or regulations under this Order may amend, repeal, revoke or otherwise modify any statutory provision (including this Order).
4
Nothing in this Order affects the generality of the power conferred by this Article.
SCHEDULES
C7C8C9 SCHEDULE 1BARRED LISTS
Sch. 1 modified (12.10.2009) by Safeguarding Vulnerable Groups (Regulated Activity, Transitional Provisions and Commencement No. 4) Order (Northern Ireland) 2009 (S.R. 2009/304), art. 10 (with art. 5)
Sch. 1 modified (13.3.2009) by Safeguarding Vulnerable Groups (Transitory Provisions) Order (Northern Ireland) 2009 (S.R. 2009/38), art. 6
Sch. 1 revocation of earlier affecting provision S.R. 2009/304, arts. 5, 10 (10.9.2012) by The Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order (Northern Ireland) 2012 (S.R. 2012/320), arts. 1, 4
PART ICHILDREN'S BARRED LIST
Automatic inclusion
I391
1
This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.
F2492
If DBS is satisfied that this paragraph applies to a person, it must include the person in the children’s barred list.
Inclusion subject to consideration of representations
I402
1
This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.
F250F2522
Sub-paragraph (4) applies if it appears to DBS that—
a
this paragraph applies to a person, and
b
the person is or has been, or might in future be, engaged in regulated activity relating to children.
4
F216DBS must give the person the opportunity to make representations as to why the person should not be included in the children's barred list.
5
Sub-paragraph (6) applies if—
a
the person does not make representations before the end of any time prescribed for the purpose, or
b
the duty in sub-paragraph (4) does not apply by virtue of paragraph 16(2).
6
If F216DBS —
a
is satisfied that this paragraph applies to the person, and
b
has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children,
it must include the person in the list.
7
Sub-paragraph (8) applies if the person makes representations before the end of any time prescribed for the purpose.
8
If F216DBS —
a
is satisfied that this paragraph applies to the person,
b
has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and
c
is satisfied that it is appropriate to include the person in the children's barred list,
it must include the person in the list.
Behaviour
I413
1
This paragraph applies to a person if—
i
has (at any time) engaged in relevant conduct, and
ii
is or has been, or might in future be, engaged in regulated activity relating to children,, and
b
F216DBS proposes to include him in the children's barred list.
2
F216DBS must give the person the opportunity to make representations as to why he should not be included in the children's barred list.
3
F216DBS must include the person in the children's barred list if—
a
it is satisfied that the person has engaged in relevant conduct,
F149aa
it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and
b
it F150is satisfied that it is appropriate to include the person in the list.
C44
This paragraph does not apply to a person if the relevant conduct consists only of an offence committed against a child before the commencement of Article 6 and the court, having considered whether to make a disqualification order, decided not to.
5
In sub-paragraph (4)—
a
the reference to an offence committed against a child must be construed in accordance with Chapter II of Part II of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003;
b
a disqualification order is an order under Article 23 or 24 of that Order.
I424
1
For the purposes of paragraph 3 relevant conduct is—
a
conduct which endangers a child or is likely to endanger a child;
b
conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;
c
conduct involving sexual material relating to children (including possession of such material);
d
conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to F216DBS that the conduct is inappropriate;
e
conduct of a sexual nature involving a child, if it appears to F216DBS that the conduct is inappropriate.
2
A person's conduct endangers a child if he—
a
harms a child,
b
causes a child to be harmed,
c
puts a child at risk of harm,
d
attempts to harm a child, or
e
incites another to harm a child.
3
“Sexual material relating to children” means—
a
indecent images of children, or
b
material (in whatever form) which portrays children involved in sexual activity and which is produced for the purposes of giving sexual gratification.
4
“Image” means an image produced by any means, whether of a real or imaginary subject.
5
A person does not engage in relevant conduct merely by committing an offence prescribed for the purposes of this sub-paragraph.
6
For the purposes of sub-paragraph (1)(d) and (e), F216DBS must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.
Risk of harm
I435
1
This paragraph applies to a person if—
i
falls within sub-paragraph (4), and
ii
is or has been, or might in future be, engaged in regulated activity relating to children,, and
b
F216DBS proposes to include him in the children's barred list.
2
F216DBS must give the person the opportunity to make representations as to why he should not be included in the children's barred list.
3
F216DBS must include the person in the children's barred list if—
a
it is satisfied that the person falls within sub-paragraph (4)
F152aa
it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children,, and
b
it F153is satisfied that it is appropriate to include the person in the list.
4
A person falls within this sub-paragraph if he may—
a
harm a child,
b
cause a child to be harmed,
c
put a child at risk of harm,
d
attempt to harm a child, or
e
incite another to harm a child.
Restriction on inclusion
I446
1
F217DBS must not include a person in the children's barred list—
a
only on a particular ground if a relevant Scottish authority has already considered whether the person should be included in a corresponding list on the same ground (whether or not it decided to include him in the list), or
b
if, in accordance with such criteria as the Secretary of State specifies by order, it is more appropriate for the person's case to be considered by the relevant Scottish authority.
2
A relevant Scottish authority is such authority as the Secretary of State specifies by order as exercising for the purposes of the law of Scotland functions which correspond to those of F217DBS.
3
A corresponding list is a list maintained for the purposes of the law of Scotland which the Secretary of State specifies by order as corresponding to the children's barred list.
PART IIADULTS' BARRED LIST
Automatic inclusion
I457
1
This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.
F2512
If DBS is satisfied that this paragraph applies to a person, it must include the person in the adults’ barred list.
Inclusion subject to consideration of representations
I468
1
This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.
F1542
F253Sub-paragraph (4) applies if it appears to DBS that—
a
this paragraph applies to a person, and
b
the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults.
4
F218DBS must give the person the opportunity to make representations as to why the person should not be included in the adults' barred list.
5
Sub-paragraph (6) applies if—
a
the person does not make representations before the end of any time prescribed for the purpose, or
b
the duty in sub-paragraph (4) does not apply by virtue of paragraph 16(2).
6
If F218DBS —
a
is satisfied that this paragraph applies to the person, and
b
has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults,
it must include the person in the list.
7
Sub-paragraph (8) applies if the person makes representations before the end of any time prescribed for the purpose.
8
If F218DBS —
a
is satisfied that this paragraph applies to the person,
b
has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and
c
is satisfied that it is appropriate to include the person in the adults' barred list,
it must include the person in the list.
Behaviour
I479
1
This paragraph applies to a person if—
i
has (at any time) engaged in relevant conduct, and
ii
is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults,, and
b
F218DBS proposes to include him in the adults' barred list.
2
F218DBS must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.
3
F218DBS must include the person in the adults' barred list if—
a
it is satisfied that the person has engaged in relevant conduct
F156aa
it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults,, and
b
it F157is satisfied that it is appropriate to include the person in the list.
I4810
1
For the purposes of paragraph 9 relevant conduct is—
a
conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;
b
conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;
c
conduct involving sexual material relating to children (including possession of such material);
d
conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to F218DBS that the conduct is inappropriate;
e
conduct of a sexual nature involving a vulnerable adult, if it appears to F218DBS that the conduct is inappropriate.
2
A person's conduct endangers a vulnerable adult if he—
a
harms a vulnerable adult,
b
causes a vulnerable adult to be harmed,
c
puts a vulnerable adult at risk of harm,
d
attempts to harm a vulnerable adult, or
e
incites another to harm a vulnerable adult.
3
“Sexual material relating to children” means—
a
indecent images of children, or
b
material (in whatever form) which portrays children involved in sexual activity and which is produced for the purposes of giving sexual gratification.
4
“Image” means an image produced by any means, whether of a real or imaginary subject.
5
A person does not engage in relevant conduct merely by committing an offence prescribed for the purposes of this sub-paragraph.
6
For the purposes of sub-paragraph (1)(d) and (e), F218DBS must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.
Risk of harm
I4911
1
This paragraph applies to a person if—
i
falls within sub-paragraph (4), and
ii
is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults,, and
b
F218DBS proposes to include him in the adults' barred list.
2
F218DBS must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.
3
F218DBS must include the person in the adults' barred list if—
a
it is satisfied that the person falls within sub-paragraph (4),
F159aa
it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults,and
b
it F160is satisfied that it is appropriate to include the person in the list.
4
A person falls within this sub-paragraph if he may—
a
harm a vulnerable adult,
b
cause a vulnerable adult to be harmed,
c
put a vulnerable adult at risk of harm,
d
attempt to harm a vulnerable adult, or
e
incite another to harm a vulnerable adult.
Restriction on inclusion
I5012
1
F219DBS must not include a person in the adults' barred list—
a
only on a particular ground if a relevant Scottish authority has already considered whether the person should be included in a corresponding list on the same ground (whether or not it decided to include him in the list), or
b
if, in accordance with such criteria as the Secretary of State specifies by order, it is more appropriate for the person's case to be considered by the relevant Scottish authority.
2
A relevant Scottish authority is such authority as the Secretary of State specifies by order as exercising for the purposes of the law of Scotland functions which correspond to those of F219DBS.
3
A corresponding list is a list maintained for the purposes of the law of Scotland which the Secretary of State specifies by order as corresponding to the adults' barred list.
C5C6PART IIISUPPLEMENTARY
Procedure
I5113
1
F220DBSmust ensure that in respect of any information it receives in relation to an individual from whatever source or of whatever nature it considers whether the information is relevant to its consideration as to whether the individual should be included in each barred list.
2
Sub-paragraph (1) does not, without more, require F220DBS to give an individual the opportunity to make representations as to why he should not be included in a barred list.
I5214
When an individual is included in a barred list F220DBS must take all reasonable steps to notify the individual of that fact.
I5315
1
The Secretary of State may, by regulations, make provision as to the procedure to be followed for the purposes of any decision F220DBS is required or authorised to take under this Schedule.
2
Such provision may include provision as to the time within which anything is to be done.
Representations
I5416
1
A person who is, by virtue of any provision of this Schedule, given an opportunity to make representations must have the opportunity to make representations in relation to all of the information on which F220DBS intends to rely in taking a decision under this Schedule.
2
Any requirement of this Schedule to give a person an opportunity to make representations does not apply if F220DBS does not know and cannot reasonably ascertain the whereabouts of the person.
3
The opportunity to make representations does not include the opportunity to make representations that findings of fact made by a competent body were wrongly made.
4
Findings of fact made by a competent body are findings of fact made in proceedings before one of the following bodies or any of its committees—
a
the General Teaching Council for Northern Ireland
b
the Council of the Pharmaceutical Society of Northern Ireland;
c
the General Medical Council;
d
the General Dental Council;
e
the General Optical Council;
f
the General Osteopathic Council;
g
the General Chiropractic Council;
h
the Nursing and Midwifery Council;
i
the Health Professions Council;
j
the Northern Ireland Social Care Council.
5
The Secretary of State may by order amend sub-paragraph (4) by inserting a paragraph or amending or omitting a paragraph for the time being contained in the sub-paragraph.
I5517
1
This paragraph applies to a person who is included in a barred list (except a person included in pursuance of paragraph 1 or 7) if, before he was included in the list, F220DBS was unable to ascertain his whereabouts.
2
This paragraph also applies to such a person if—
a
he did not, before the end of any time prescribed for the purpose, make representations as to why he should not be included in the list, and
b
F220DBS grants him permission to make such representations out of time.
3
If a person to whom this paragraph applies makes such representations after the prescribed time—
a
F220DBS must consider the representations, and
b
if it thinks that it is not appropriate for the person to be included in the list concerned, it must remove him from the list.
4
For the purposes of this paragraph, it is immaterial that any representations mentioned in sub-paragraph (3) relate to a time after the person was included in the list concerned.
Review
I5618
1
A person who is included in a barred list may apply to F220DBS for a review of his inclusion.
2
An application for a review may be made only with the permission of F220DBS.
3
A person may apply for permission only if—
a
the application is made after the end of the minimum barred period, and
b
in the prescribed period ending with the time when he applies for permission, he has made no other such application.
4
F220DBSmust not grant permission unless it thinks—
a
that the person's circumstances have changed since he was included in the list or since he last applied for permission (as the case may be), and
b
that the change is such that permission should be granted.
5
On a review of a person's inclusion, if F220DBSis satisfied that it is no longer appropriate for him to be included in the list it must remove him from it; otherwise it must dismiss the application.
6
The minimum barred period is the prescribed period beginning with such of the following as may be prescribed—
a
the date on which the person was first included in the list;
b
the date on which any criterion prescribed for the purposes of paragraph 1, 2, 7 or 8 is first satisfied;
c
where the person is included in the list on the grounds that he has been convicted of an offence in respect of which a sentence of imprisonment or detention was imposed, the date of his release;
d
the date on which the person made any representations as to why he should not be included in the list.
F20018A
1
Sub-paragraph (2) applies if a person's inclusion in a barred list is not subject to—
a
a review under paragraph 18, or
b
an application under that paragraph,
which has not yet been determined.
2
F220DBS may, at any time, review the person's inclusion in the list.
3
On any such review, F220DBS may remove the person from the list if, and only if, it is satisfied that, in the light of—
a
information which it did not have at the time of the person's inclusion in the list,
b
any change of circumstances relating to the person concerned, or
c
any error by F220DBS ,
it is not appropriate for the person to be included in the list.
Information
I5719
1
F220DBS may require—
a
any person who holds records of convictions or cautions for the use of police forces generally to provide to it any relevant information relating to a person to whom any of paragraphs 1 to 5 or 7 to 11 applies F161or appears to apply ;
b
any person who holds such records to provide to it prescribed details of relevant matter (within the meaning of section 113A of the Police Act 1997 (c. 50)) relating to a person to whom any of those paragraphs F162applies or appears to apply ;
c
the F268relevant chief officer to provide to it any such relevant information;
F163d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
For the purposes of sub-paragraph (1)(a), relevant information relating to a person is information which the person holding the records F164reasonably believes to be relevant in relation to the regulated activity concerned.
3
4
5
For the purpose of deciding under this Schedule whether or not a person is included in a barred list F220DBS must not take account of relevant police information if the F270relevant chief officer thinks that it would not be in the interests of the prevention or detection of crime to disclose the information to the person.
6
7
In this paragraph—
“caution” has the same meaning as in section 126 of the Police Act 1997 (c. 50);
F271“the relevant chief officer” means any chief officer of a police force who is identified by the Secretary of State for the purposes of this paragraph;
F2727A
Subsections (10) and (11) of section 113B of the Police Act 1997 apply for the purposes of the definition of “the relevant chief officer” as they apply for the purposes of that section.
8
I5820
1
The Department of Health, Social Services and Public Safety may provide to F220DBS any information relating to a person which is held by that Department in connection with its functions under Part II or III of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003.
2
The Department of Education may provide to F220DBS any information relating to a person which is held by that Department in connection with its functions under Articles 70(2)(e)(iii) and 88A(2)(b)(iii) of the Education and Libraries (Northern Ireland) Order 1986 (NI 3).
F2543
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I5921
F220DBS must provide the Secretary of State with the prescribed information relating to a person if—
a
it includes that person in a barred list;
b
it is considering whether to include him in a barred list;
c
it thinks that any of the criteria prescribed for the purposes of paragraph 1, 2, 7 or 8 is satisfied in relation to him and that the Secretary of State does not already have the information.
I6022
F255DBS must inform the Scottish Ministers if a person is included in a barred list.
I6123
F221DBS may—
a
at the request of the Secretary of State provide him with such information relating to the exercise of its functions as F221DBS thinks may be relevant to the exercise by the Secretary of State of any of his functions;
Prescribed criteria
I6224
1
The criteria which may be prescribed for the purposes of paragraphs 1, 2, 7 and 8 are—
a
that a person has been convicted of, or cautioned in relation to, an offence of a specified description;
b
that an order of a specified description requiring the person to do or not to do anything has been made against him;
c
that a person is included in a specified list maintained for the purposes of a country or territory outside the United Kingdom;
d
that an order or direction of a specified description requiring the person to do or not to do anything has been made against him for the purposes of a country or territory outside the United Kingdom.
2
The power to specify offences for the purposes of sub-paragraph (1) includes power to specify offences under—
F33a
the law of a country or territory outside Northern Ireland;
b
section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18);
c
section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19);
d
section 42 of the Naval Discipline Act 1957 (c. 53);
e
section 42 of the Armed Forces Act 2006 (c. 52).
3
The Secretary of State may specify a list for the purposes of sub-paragraph (1)(c) only if he thinks that inclusion in the list has a corresponding or similar effect to inclusion in a barred list.
4
For the purposes of determining whether any of the criteria is satisfied in relation to a person, ignore—
a
any offence committed before he attained the age of 18;
b
any order or direction made before that time.
5
The criteria which may be prescribed for the purposes of paragraph 1 or 2 must not consist only of circumstances in which the person has committed an offence against a child before the commencement of Article 6 if the court, having considered whether to make a disqualification order, decided not to.
6
In sub-paragraph (5)—
a
the reference to an offence committed against a child must be construed in accordance with Chapter II of Part II of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (NI 4);
b
a disqualification order is an order under Article 23 or 24 of that Order.
7
For the purposes of sub-paragraph (4) an offence committed over a period of time must be treated as committed on the last day of the period.
F1678
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1679
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3410
For the purposes of sub-paragraph (2)(a) in its application to an offence committed outside the British Islands the Secretary of State must not specify the offence unless—
a
the conduct which constitutes the offence would, if carried out in Northern Ireland, amount to an offence under the law of Northern Ireland (the equivalent offence), and
b
the equivalent offence is also specified for the purposes of paragraph 1, 2, 7 or 8 (as the case may be).
I6325
F351
A court by or before which a person is convicted of an offence of a description specified for the purposes of paragraph 24(1)(a), or which makes an order of a description specified for the purposes of paragraph 24(1)(b), must inform the person at the time he is convicted or the order is made that F222DBS will F168or (as the case may be) “
may
”
include him in the barred list concerned.
F362
This paragraph does not apply to convictions by or before a court in a country or territory outside Northern Ireland.
F52SCHEDULE 2REGULATED ACTIVITY
Sch. 2 para. 7(1)-(3E) substituted for Sch. 2 para. 7(1)-(3) (10.8.2012 for specified purposes, 10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 7 para. 3(2); S.I. 2012/2075, art. 2(b); S.I. 2012/2234, art. 2(z)(i)
PART IREGULATED ACTIVITY RELATING TO CHILDREN
Regulated activity: general
I641
1
An activity is a regulated activity relating to children if—
a
it is mentioned in paragraph 2(1), and
b
F169except in the case of activities falling within sub-paragraph (1A), it is carried out frequently by the same person or the period condition is satisfied.
F1701A
The following activities fall within this sub-paragraph—
a
relevant personal care, and
b
health care provided by, or under the direction or supervision of, a health care professional.
1B
In this Part of this Schedule “relevant personal care” means—
a
physical assistance which is given to a child who is in need of it by reason of illness or disability and is given in connection with eating or drinking (including the administration of parenteral nutrition),
b
physical assistance which is given to a child who is in need of it by reason of age, illness or disability and is given in connection with—
i
toileting (including in relation to the process of menstruation),
ii
washing or bathing, or
iii
dressing,
c
the prompting (together with supervision) of a child, who is in need of it by reason of illness or disability, in relation to the performance of the activity of eating or drinking where the child is unable to make a decision in relation to performing such an activity without such prompting and supervision,
d
the prompting (together with supervision) of a child, who is in need of it by reason of age, illness or disability, in relation to the performance of any of the activities listed in paragraph (b)(i) to (iii) where the child is unable to make a decision in relation to performing such an activity without such prompting and supervision,
e
any form of training, instruction, advice or guidance which—
i
relates to the performance of the activity of eating or drinking,
ii
is given to a child who is in need of it by reason of illness or disability, and
iii
does not fall within paragraph (c), or
f
any form of training, instruction, advice or guidance which—
i
relates to the performance of any of the activities listed in paragraph (b)(i) to (iii),
ii
is given to a child who is in need of it by reason of age, illness or disability, and
iii
does not fall within paragraph (d).
1C
In this Part of this Schedule —
“health care” includes all forms of health care provided for children, whether relating to physical or mental health and also includes palliative care for children and procedures that are similar to forms of medical or surgical care but are not provided for children in connection with a medical condition,
“health care professional” means a person who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002.
1D
Any reference in this Part of this Schedule to health care provided by, or under the direction or supervision of, a health care professional includes a reference to first aid provided to a child by any person acting on behalf of an organisation established for the purpose of providing first aid.
2
An activity is a regulated activity relating to children if—
a
it is carried out frequently by the same person or the period condition is satisfied,
b
it is carried out in an establishment mentioned in paragraph 3(1),
c
it is carried out by a person while engaging in F171any work falling within sub-paragraph (2A) or (2B) ,
d
it is carried out for or in connection with the purposes of the establishment, and
e
it gives that person the opportunity, in consequence of anything he is permitted or required to do in connection with the activity, to have contact with children.
F1722A
Work falls within this sub-paragraph if it is any form of work for gain, other than any such work which—
a
is undertaken in pursuance of a contract for the provision of occasional or temporary services, and
b
is not an activity mentioned in paragraph 2(1) (disregarding paragraph 2(3A) and (3B)(b)).
2B
Work falls within this sub-paragraph if it is any form of work which is not for gain, other than—
a
any such work which—
i
is carried out on a temporary or occasional basis, and
ii
is not an activity mentioned in paragraph 2(1) (disregarding paragraph 2(3A) and (3B)(b)), or
b
any such work which is, on a regular basis, subject to the day to day supervision of another person who is engaging in regulated activity relating to children.
2C
The reference in sub-paragraph (2B)(b) to day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned.
3
Each of the following is a regulated activity relating to children—
a
acting as a child minder on domestic premises;
b
providing day care.
4
Any expression used both in sub-paragraph (3) and in Part XI of the Children Order has the meaning given by that Order.
5
It is a regulated activity relating to children to foster a child (as mentioned in Article 55).
6
The exercise of a function of a guardian ad litem appointed under Article 60 of the Children Order is a regulated activity relating to children.
F1736A
The exercise of a function of a controller appointed in respect of a child under Article 101 of the Mental Health (Northern Ireland) Order 1986 (NI 4) is a regulated activity relating to children.
F1747
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F377A
The exercise of a function under Article 130 of the Children (Northern Ireland) Order 1995, so far as it gives the person exercising the function the opportunity, in consequence of anything the person is permitted or required to do in the exercise of that function, to have contact with children is a regulated activity relating to children.
8
The exercise of a function of any of the following so far as it F38gives the person exercising the function the opportunity, in consequence of anything the person is permitted or required to do in the exercise of that function, to have contact with children is a regulated activity relating to children—
a
an inspector appointed under Article 102 of the Education and Libraries (Northern Ireland) Order 1986;
b
the Chief Inspector of Criminal Justice in Northern Ireland;
c
F39RQIA.
9
F40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
F42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
Any activity which consists in or involves on a regular basis the day to day management or supervision of a person carrying out an activity mentioned in sub-paragraph (1), (2), (6), F43(7A) or (8) is a regulated activity relating to children.
F17513
Any activity which consists in or involves on a regular basis the day to day management or supervision of a person who would be carrying out an activity mentioned in sub-paragraph (1) or (2) but for the exclusion for supervised activity in paragraph 2(3A) or (3B)(b) or sub-paragraph (2B)(b) above is a regulated activity relating to children.
Activities
I652
1
The activities referred to in paragraph 1(1) are—
a
any form of teaching, training or instruction of children, unless the teaching, training or instruction is merely incidental to teaching, training or instruction of persons who are not children;
b
any form of care for or supervision of children, unless the care or supervision is merely incidental to care for or supervision of persons who are not children;
c
any form of advice or guidance provided wholly or mainly for children, if the advice or guidance relates to their physical, emotional or educational well-being;
F176d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
moderating a public electronic interactive communication service which is likely to be used wholly or mainly by children;
f
driving a vehicle which is being used only for the purpose of conveying children and any person supervising or caring for the children pursuant to arrangements made in prescribed circumstances.
2
Sub-paragraph (1)(a), (b), F178and (c) do not include—
a
teaching, training or instruction provided to a child in the course of his employment;
b
care for or supervision of a child in the course of his employment;
c
advice or guidance provided for a child in the course of his employment;
F179d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Sub-paragraph (2) does not apply if—
a
the child has not attained the age of 16, and
b
the activity is carried out by a person in respect of whom arrangements exist principally for that purpose.
F1773A
Sub-paragraph (1)(a) does not include any form of teaching, training or instruction of children which is, on a regular basis, subject to the day to day supervision of another person who is engaging in regulated activity relating to children.
3B
Sub-paragraph (1)(b)—
a
does not include any health care provided otherwise than by (or under the direction or supervision of) a health care professional, and
b
does not, except in the case of relevant personal care or of health care provided by (or under the direction or supervision of) a health care professional, include any form of care for or supervision of children which is, on a regular basis, subject to the day to day supervision of another person who is engaging in regulated activity relating to children.
3C
The references in sub-paragraphs (3A) and (3B)(b) to day to day supervision are references to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned.
3D
Sub-paragraph (1)(c) does not include any legal advice.
4
For the purposes of sub-paragraph (1)(e) a person moderates a public electronic interactive communication service if, for the purpose of protecting children, he has any function relating to—
a
monitoring the content of matter which forms any part of the service,
b
removing matter from, or preventing the addition of matter to, the service, or
c
controlling access to, or use of, the service.
5
But a person does not moderate a public electronic interactive communications service as mentioned in sub-paragraph (4)(b) or (c) unless he has—
a
access to the content of the matter;
b
contact with users of the service.
6
In sub-paragraph (2) employment includes any form of work which is carried out under the supervision or control of another, whether or not the person carrying it out is paid for doing so.
Establishments
I663
1
The establishments referred to in paragraph 1(2)F44. . . are—
a
an educational institution which is exclusively or mainly for the provision of full-time education to children;
b
a nursery school within the meaning of the Education and Libraries (Northern Ireland) Order 1986 (NI 3);
F45bb
premises which are used for the provision of education by F267the Education Authority or on its behalf, which do not fall within paragraph (a) or (b);
c
a hospital which is exclusively or mainly for the reception and treatment of children;
d
an institution which is exclusively or mainly for the detention of children;
e
a children's home (within the meaning of Article 9 of the 2003 Order);
f
relevant childcare premises.
2
Relevant childcare premises are any part of premises on which a person acts as child minder or provides day care in respect of which he must be registered under Article 118 of the Children Order.
F463
But premises on which a person acts as child minder or provides day care are not relevant childcare premises if the premises are the home of a parent of at least one child to whom the day care or child minding is provided.
4
For the purposes of paragraph (3) “parent” includes any person who has parental responsibility for a child or who has care of a child.
5
“Parental responsibility” has the same meaning as in the Children Order.
Positions
F180I674
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I685
A person who is part of a group in relation to which another (P) engages in regulated activity relating to children does not engage in regulated activity only because he assists P or does anything on behalf of or under the direction of P which, but for this paragraph, would amount to engaging in regulated activity relating to children.
F201Guidance
Sch. 2 para. 5A and preceding cross-heading inserted (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 7 para. 14(6); S.I. 2012/2234, art. 2(z)(vii)
5A
1
The Secretary of State must give guidance for the purpose of assisting regulated activity providers and personnel suppliers in deciding whether supervision is of such a kind that, as a result of paragraph 1(2B)(b), 2(3A) or 2(3B)(b), the person being supervised would not be engaging in regulated activity relating to children.
2
The Secretary of State must publish guidance given under this paragraph.
3
A regulated activity provider or a personnel supplier must, in exercising any functions under this Order, have regard to guidance for the time being given under this paragraph.
Exceptions
I696
The Secretary of State may, by order, provide that in such circumstances as are specified an activity which is a regulated activity in relation to children is not to be treated as a regulated activity.
F52PART IIREGULATED ACTIVITY RELATING TO VULNERABLE ADULTS
I707
F521
Each of the following is a regulated activity relating to vulnerable adults—
a
the provision to an adult of health care by, or under the direction or supervision of, a health care professional,
b
the provision to an adult of relevant personal care,
c
the provision by a social care worker of relevant social work to an adult who is a client or potential client,
d
the provision of assistance in relation to general household matters to an adult who is in need of it by reason of age, illness or disability,
e
any relevant assistance in the conduct of an adult's own affairs,
f
the conveying by persons of a prescribed description in such circumstances as may be prescribed of adults who need to be conveyed by reason of age, illness or disability,
g
such activities—
i
involving, or connected with, the provision of health care or relevant personal care to adults, and
ii
not falling within any of the above paragraphs,
as are of a prescribed description.
2
Health care includes all forms of health care provided for individuals, whether relating to physical or mental health and also includes palliative care and procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition.
3
A health care professional is a person who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002.
3A
Any reference in this Part of this Schedule to health care provided by, or under the direction or supervision of, a health care professional includes a reference to first aid provided to an adult by any person acting on behalf of an organisation established for the purpose of providing first aid.
3B
Relevant personal care means—
a
physical assistance, given to a person who is in need of it by reason of age, illness or disability, in connection with—
i
eating or drinking (including the administration of parenteral nutrition),
ii
toileting (including in relation to the process of menstruation),
iii
washing or bathing,
iv
dressing,
v
oral care, or
vi
the care of skin, hair or nails,
b
the prompting, together with supervision, of a person who is in need of it by reason of age, illness or disability in relation to the performance of any of the activities listed in paragraph (a) where the person is unable to make a decision in relation to performing such an activity without such prompting and supervision, or
c
any form of training, instruction, advice or guidance which—
i
relates to the performance of any of the activities listed in paragraph (a),
ii
is given to a person who is in need of it by reason of age, illness or disability, and
iii
does not fall within paragraph (b).
3C
Relevant social work has the meaning given by section 2(4) of the Health and Personal Social Services Act (Northern Ireland) 2001 and social care worker means a person who is a social care worker by virtue of section 2(2)(a) of that Act.
3D
Assistance in relation to general household matters is day to day assistance in relation to the running of the household of the person concerned where the assistance is the carrying out of one or more of the following activities on behalf of that person—
a
managing the person's cash,
b
paying the person's bills,
c
shopping.
3E
Relevant assistance in the conduct of a person's own affairs is anything done on behalf of the person by virtue of—
a
an enduring power of attorney (within the meaning of the Enduring Powers of Attorney (Northern Ireland) Order 1987 (NI 16)) in respect of the person which is—
i
registered in accordance with that Order, or
ii
the subject of an application to be so registered,
b
an order made under Article 99 or 101 of the Mental Health (Northern Ireland) Order 1986 (NI 4) by the High Court in relation to the person or the person's property or affairs, or
c
the appointment of a representative to receive payments on behalf of the person in pursuance of regulations made under the Social Security Administration (Northern Ireland) Act 1992.
F1824
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F486
The exercise of a function of the following so far as it gives the person exercising the function the opportunity, in consequence of anything the person is permitted or required to do in the exercise of that function, to have contact with vulnerable adults, is a regulated activity relating to vulnerable adults—
a
the Chief Inspector of Criminal Justice in Northern Ireland;
b
RQIA.
7
F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
F50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1839
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
A person who is part of a group in relation to which another (P) engages in regulated activity relating to vulnerable adults does not engage in regulated activity only because he assists P or does anything on behalf of or under the direction of P which, but for this sub-paragraph, would amount to engaging in regulated activity relating to vulnerable adults.
F184I718
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I729
The Secretary of State may, by order, provide that in such circumstances as are specified an activity which is a regulated activity in relation to vulnerable adults is not to be treated as a regulated activity.
PART IIITHE PERIOD CONDITION
I7310
1
The period condition is satisfied if the person carrying out the activity does so at any time on more than F51three days in any period of 30 days.
2
In relation to an activity that falls within paragraph 2(1)(a), (b) F185or (c)F186..., the period condition is also satisfied if—
a
the person carrying out the activity does so at any time between 2 a.m. and 6 a.m, and
b
the activity gives the person the opportunity to have face-to-face contact with children F187....
F57SCHEDULE 3APPROPRIATE VERIFICATION
Sch. 3 repealed (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 84, Sch. 10 Pt. 5; S.I. 2012/2234, art. 2(aa)(v) (bb)
F57PART IDEFAULT POSITION
F571
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F572
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F573
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F574
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F57PART IIPRESCRIBED VERIFICATION
F575
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F576
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F577
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F57PART IIIPRESCRIBED VERIFICATION
F578
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F579
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5710
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F57PART IVDEFINITIONS AND POWER TO AMEND
F5711
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5712
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5713
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5714
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F58SCHEDULE 4EMPLOYMENT BUSINESSES: FAILURE TO CHECK
Sch. 4 repealed (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 85, Sch. 10 Pt. 5; S.I. 2012/2234, art. 2(aa)(v) (bb)
F58Offences
F581
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F582
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F58Defences
F583
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F58Modified meaning of regulated activity
F584
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F58Power to amend paragraph 2(1)(c)
F585
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F58Offence: acting for P etc
F586
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 5F196BARRING INFORMATION
Sch. 5 heading substituted (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 102(4); S.I. 2012/2234, art. 2(aa)(v)
I741
This is the table referred to in F194Articles 32A and 32B —
Column 1 | Column 2 |
|---|---|
| Children |
| Vulnerable adults |
F191. . . | F191. . . |
F191. . . | F191. . . |
| Children |
| Vulnerable adult |
F192. . . | F192. . . |
F192. . . | F192. . . |
| Children |
| Children |
| Children |
| Children |
| Vulnerable adults |
| Vulnerable adults |
| Children |
| Vulnerable adults |
F193. . . | F193. . . |
| Children |
F190. . . | F190. . . |
I752
The Secretary of State may by order amend F195this Schedule .
3
1
In entries 1 and 5 in the table the reference to regulated activity must be construed by disregarding sub-paragraph (2) of paragraph 2 of Schedule 2 if the activity—
a
relates to a child who has not attained the age of 16, or
F188b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
In entries 1, 2, 5, 6, 9 and 13 in the table the reference to regulated activity includes a reference to an activity which would be a regulated activity if—
a
it were carried out frequently, or
b
it were not merely incidental to another activity.
F1893
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Parental responsibility has the same meaning as in the Children Order.
5
A regulated activity provider is an independent regulated activity provider unless it is a company wholly owned by B.
6
An adult placement scheme is a scheme—
a
under which an individual agrees with the person carrying on the scheme to provide accommodation, in the home in which the individual ordinarily resides, to an adult who is in need of it, and
b
in respect of which a requirement to register arises under Article 12 of the 2003 Order.
SCHEDULE 6TRANSITIONAL PROVISIONS
Advice byF223 DBS
Word in Sch. 6 para. 1 substituted (1.12.2012) by The Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012 (S.I. 2012/3006), arts. 1(1), 6(g) (with Pt. 4)
1
1
F223DBS must provide the Department of Health, Social Services and Public Safety with such advice as it requests in connection with any decision in relation to the inclusion of a person in a list kept under Article 3 or 35 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (NI 4).
2
F223DBS must provide the Department of Education with such advice as it requests in connection with any decision in relation to the inclusion of a person in a list kept for the purposes of Article 70(2)(e)(iii) or 88A(2)(b)(iii) of the Education and Libraries (Northern Ireland) Order 1986 (NI 3).
Existing restrictions relating to children
I762
1
This paragraph applies to a person who is—
a
included in the list kept under Article 3 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (NI 4) (individuals considered unsuitable to work with children);
b
disqualified from working with children by virtue of an order of the court under Article 23 or 24 of that Order;
c
included in the list kept under Article 70(2)(e)(iii) or 88A(2)(b)(iii) of the Education and Libraries (Northern Ireland) Order 1986 (NI 3) (prohibition from teaching etc).
2
The Secretary of State may, by order, make such provision as he thinks appropriate—
a
requiring F224DBS to include the person in the children's barred list;
b
requiring F224DBS to consider including the person in the children's barred list;
c
as to circumstances in which the person may make representations to F224DBS and the time at which such representations may be made;
d
modifying the provisions of this Order so as to enable the person to engage in regulated activity of such description as is specified in the order in such circumstances as are so specified;
e
modifying anything done under paragraph 15 or in paragraphs 16 to 21 of Schedule 1 in connection with F224DBS's consideration of any matter relating to the person.
3
An order under this paragraph may contain provision—
a
enabling the General Teaching Council for Northern Ireland to make determinations on an application by a person who has ceased to be subject to a decision under Article 70(2)(e)(iii) of the Education and Libraries (Northern Ireland) Order 1986 (NI 3) in relation to his eligibility for registration under Article 35 of the Education (Northern Ireland) Order 1998 (NI 13);
b
for the Secretary of State to prescribe by regulations the procedure in relation to an application as mentioned in paragraph (a).
Existing restrictions relating to vulnerable adults
I773
1
This paragraph applies to a person who is included in the list kept under Article 35 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (NI 14) (individuals considered unsuitable to work with certain adults).
2
The Secretary of State may, by order, make such provision as he thinks appropriate—
a
requiring F225DBSto include the person in the adults' barred list;
b
requiring F225DBS to consider including the person in the adults' barred list;
c
as to circumstances in which the person may make representations to F225DBS and the time at which such representations may be made;
d
modifying the provisions of this Order so as to enable the person to engage in regulated activity of such description as is specified in the order in such circumstances as are so specified;
e
modifying anything done under paragraph 15 or in paragraphs 16 to 21 of Schedule 1 in connection with F225DBS's consideration of any matter relating to the person.
Existing restrictions: supplementary
I784
An order under paragraph 2 or 3 may—
a
modify any criminal offence created by this Order;
b
create any new criminal offence,
but the penalty for an offence created by virtue of this paragraph must not exceed level 5 on the standard scale.
F197..........
Sch. 6 para. 5 and preceding cross-heading repealed (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 103, Sch. 10 Pt. 5; S.I. 2012/2234, art. 2(aa)(v) (bb)
F1975
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 7AMENDMENTS
The Children (Northern Ireland) Order 1995(NI 2)
1
1
In Article 109 (persons disqualified from being private foster parents) after paragraph (3) insert—
3A
A person shall not foster a child privately if—
a
he is barred from regulated activity relating to children (within the meaning of Article 7(2) of the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007); or
b
he lives in the same household as a person who is barred from such activity.
2
In Article 122 (persons disqualified for registration in respect of child minding and day care), after paragraph (2)(f) insert—
fa
he is barred from regulated activity relating to children (within the meaning of Article 7(2) of the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007);
The Education and Libraries (Northern Ireland) Order 1986 (NI 3)
2
1
In Article 70(2)(e)
(regulations for prohibiting or restricting employment of teachers) for the words from “(i) on medical grounds” to the end substitute “
on medical grounds, on grounds of misconduct or on educational grounds
”
.
2
In Article 88A(2)(b)
(regulations for prohibiting or restricting employment of non-teaching staff) for the words from “(i) on medical grounds” to the end substitute “
on medical grounds or on grounds of misconduct
”
.
The Police Act 1997 (c. 50)
3
In section 126 after subsection (2) add—
3
In the application of this Part to Northern Ireland a reference to the Safeguarding Vulnerable Groups Act 2006, or to a provision of that Act, shall be construed as a reference to the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 or, as the case maybe, to the corresponding provision of that Order.
The Data Protection Act 1998 (c. 29)
4
1
In section 56 (prohibition of requirement as to production of certain records) in the table in subsection (6) after “the Safeguarding Vulnerable Groups Act 2006”
(where it twice occurs) insert “
or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007
”
.
2
In section 75 (commencement etc.) in subsection (4A)—
a
in paragraph (a) after “the Safeguarding Vulnerable Groups Act 2006” insert “
or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007
”
; and
b
in paragraph (b) after “that Act” insert “
or that Order
”
.
The Health and Personal Social Services Act (Northern Ireland) 2001(c. 3)
5
In section 5 after subsection (3) add—
4
For the purposes of subsection (1)(a), in considering whether a person is of good character, the Council may have regard to whether he is included in a barred list (within the meaning of the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007).
I79SCHEDULE 8REPEALS
Sch. 8 partly in operation; Sch. 8 not in operation at date of making see art. 1(3); Sch. 8 in operation for certain purposes at 12.10.2009 by S.R. 2009/304, art. 3(b); Sch. 8 in operation for certain purposes at 12.10.2009 by S.R. 2009/346, arts. 3, 4, Sch. (with arts. 5, 6, 7); Sch. 8 in operation for certain purposes at 7.4.2010 by S.R. 2010/145, art. 3 (with arts. 5-9)
Short Title | Extent of repeal |
|---|---|
The Police Act 1997 (c. 50) | Sections 113C to 113F. |
The Criminal Justice and Courts Services Act 2000 (c. 43) | Sections 35 and 36. |
The Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (NI 4) | The whole Order. |
The Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (NI 9) | In Schedule 4, the amendments to the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003. |
The Serious Organised Crime and Police Act 2005 (c. 15) | In Schedule 14, paragraph 2. |
Words in Order substituted (12.10.2009) by virtue of Safeguarding Vulnerable Groups (Miscellaneous Provisions) Order (Northern Ireland) 2009 (S.R. 2009/305), art. 7(3)