ENH v Children’s Guardian [2021] NSWCATAD 203

ENH v Children’s Guardian [2021] NSWCATAD 203

The Tribunal found the applicant had rebutted the presumption that he poses a real and appreciable risk to children, given that the only offence occurred nearly 14 years ago, was at the lower end of seriousness, the victim was an adult, and there has been no subsequent adverse conduct. Expert evidence supported the assessment of very low risk. Therefore, the applicant should not be treated as a disqualified person and should be granted a working with children check clearance.

Jurisdiction
Australia
Judgment Date
14 July 2021
Procedural Posture
Application for Enabling Order Under Child Protection (working With Children) Act 2012 (nsw) / Final Determination (decision on the Papers)
Outcome
Application granted
Legal Topics
['working With Children Check' 'disqualified Person' 'enabling Order' 'criminal History Assessment']
['administrative Law' 'equal Opportunity Law' 'child Protection'] ['working With Children Check' 'disqualified Person' 'enabling Order' 'criminal History Assessment']

Case Brief

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Procedural Posture

Application for Enabling Order Under Child Protection (working With Children) Act 2012 (nsw) / Final Determination (decision on the Papers)

Legal Issues

  1. 1 ['Whether applicant has rebutted the statutory presumption that he poses a risk to the safety of children' 'Whether a reasonable person would allow their child to have unsupervised contact with the applicant in child-related work' 'Whether it is in the public interest to grant an enabling order']

Ratio Decidendi

The Tribunal found the applicant had rebutted the presumption that he poses a real and appreciable risk to children, given that the only offence occurred nearly 14 years ago, was at the lower end of seriousness, the victim was an adult, and there has been no subsequent adverse conduct. Expert evidence supported the assessment of very low risk. Therefore, the applicant should not be treated as a disqualified person and should be granted a working with children check clearance.

Court Disposition

Application granted

Orders

  • ['The applicant is not to be treated as a disqualified person for the offence in respect of s 323 of the Criminal Code Act Compilation Act 1913 (WA) for which he was convicted on 9 April 2008.' "The Children's Guardian is to grant the applicant a working with children check clearance within 28 days of publication of...