[2024] UKUT 401 (AAC)

Mr Baynes, for DBS, submits that ground 1 (all findings of fact arguably mistaken) is purely factual. Under Court of Appeal authority, if a finding of fact is open to DBS on the evidence there can be no mistake of fact. The DBS’ findings of manipulative and controlling behaviour involved a combination of pure finding of fact and value judgement. The Upper Tribunal’s attention is drawn to the distinction, in this context, between findings of fact and value judgements, as demonstrated by the caselaw authorities. The DBS reject the argument that their decision was based on any mistake of fact, arguing that all of their findings of fact were permissible and reasonably open to it on the evidence.

Mr Baynes notes that the Upper Tribunal has before it evidence that was not before the DBS in particular the Appellant’s witness statement, her oral evidence at this hearing and social care records. Nothing in the new evidence undermines the DBS’ findings. The Appellant continues to maintain her bare denial of wrongdoing in relation to the sexual abuse allegation, as she did before the DBS. In fact, the social care records support the DBS’ findings and are inconsistent with the Appellant’s case that D deteriorated while in foster care. They portray a girl who was very troubled in her mother’s care but not particularly so in school or with her father.

It is telling, submits Mr Baynes that, after D left her mother’s care, her self-harming recurred whenever the Appellant re-emerged in her life in some form, and that her final suicide attempt in 2019 was ‘hot on the heels’ of her disclosure of sexual abuse.

The Appellant’s oral evidence described a second suicide attempt while D was in foster care. It is astonishing, argues Mr Bayne, that there was no mention of this in the social care records. The claim that the information was provided by the Appellant’s ex-husband ‘over the telephone’ is also inconsistent with his witness statement.

Apart from one documented overdose, in Mr Bayne’s submission the evidence does not support the argument that D was problematic in her foster care placement. And there is no medical evidence that D has ever been diagnosed with a recognised mental illness.

Mr Baynes submits that the issue before the Upper Tribunal is similar to that which often arises in family proceedings where reliance is placed on a child’s hearsay evidence. By analogy with family court authorities, the Upper Tribunal should not compartmentalise the evidence. Corroborative evidence must be considered. Mr Baynes also submits that, in both ABE interviews, the interviewing officers took great pains not to lead D. Either D was a very good actor, or she was genuinely describing events as she perceived them.

The DBS submit that the lack of direct corroborative evidence, in particular witnesses, is an almost inevitable feature of offences of this type. It is hardly surprising. In any event, the DBS balanced the lack of corroborative evidence against other considerations including: the manner of D’s initial disclosures and the surrounding emotional context; D’s consistent ABE evidence; D’s difficulty in speaking about her allegations; D’s father’s evidence that he observed a change in her behaviour around the time that she later said she was being sexually abused.

Mr Baynes argues that there is much evidence that something went wrong in D’s family and the only suggestion of abuse relates to the Appellant. D’s actions can only properly be interpreted as a cry for help. On numerous occasions, D voiced very serious reservations about living with her mother. By contrast, when apart from her mother, D’s behaviour improved, and any deteriorations were associated with maternal contact. The evidential context also includes D’s recorded aversion to being touched and to sexual references. If the evidence is considered as a whole, it is very difficult to explain D’s allegations unless they are true.

The Appellant emphasises D’s poor mental health. But even if the Upper Tribunal accepts that D was mentally ill, that says nothing, argues Mr Baynes, about whether she has a propensity to lie.

The DBS submit that they did take into account that no criminal prosecution was brought, as well as the references supplied by the Appellant.

Mr Baynes accepts that, if the Upper Tribunal finds that the DBS mistakenly found that the Appellant abused her daughter, the remaining findings of manipulative and controlling behaviour would be unlikely to justify barring.

Regarding the second ground of appeal, Mr Baynes submits that it is difficult to see what is disproportionate about barring from the vulnerable adults’ workforce an individual who sexually abused their 11/12 year old daughter. The DBS stand by the analysis in their Barring Decision Process document, which relied on the Appellant’s propensity to transgress legal boundaries in order to meet her own needs, not only her sexual needs, and submit that the Appellant’s conduct might equally well be repeated in future in relation to a vulnerable adult.