[2024] UKUT 401 (AAC)

On 8 June 2021, the DBS wrote to the Appellant to inform her that they were minded to include her on the list of persons barred from working with children and the separate list of persons barred from working with vulnerable adults. The DBS’ proposal was based on provisional findings that the Appellant sexually abused her daughter, D, and “showed manipulative and controlling behaviour” towards her. The Appellant was invited to supply written representations, which she did.

The Appellant’s written representations to the DBS began with an extensive account of her relationship with her ex-husband, her perception of her daughter’s mental health problems and her ex-husband’s unwillingness to provide effective support. The representations went on to assert that, when D returned to live with her after spending 17 months with her father, “life started to settle down”. She and the, by now, 14-year-old D slept in the same bed “for comfort”. D’s mental health was poor, and she was admitted to hospital. When D was ready for discharge, her father refused to take her in, and the Appellant believed that D’s feeling of abandonment led her to attempt suicide. The Appellant’s attempts to establish an effective relationship with the foster carer with whom D was placed were simply those of a concerned parent. It was D’s foster carer who interpreted the ‘s’ that D wrote on her iPad as a reference to sexual assault. D’s first police interview, in which she largely refused to speak, was conducted oppressively. Questions were repeated in an attempt to coerce a response. D’s health had deteriorated in foster care. If the Appellant was at fault, foster care should have led to an improvement. And no one ever investigated what happened during the 17 months that D lived with her father.

In responding to the sexual abuse allegation, the Appellant’s representations criticised various aspects of the police investigation, detailing its effect on her welfare and finances, but without directly addressing the allegations themselves save that they were ‘categorically denied’ and noting that they were made only after years of failures by public bodies to provide D with the help she needed.

The Appellant’s representations were accompanied by a number of references. References were provided by: the Appellant’s local MP; a worker at a charity established by the Appellant; the Appellant’s psychotherapist; the Appellant’s brother; the Appellant’s sister; a fellow charity volunteer; the Appellant’s two sons; a counsellor at a charity established by the Appellant; a longstanding friend (retired teacher); a fellow member of a local business network; and a former employer.

The Appellant’s referees all painted a positive, in fact very positive, picture of her character. While many referees expressed the view that the Appellant posed no risk to either children or vulnerable adults, none directly expressed a view on the likelihood of the Appellant having sexually abused her daughter. The Appellant’s written representation to the DBS assert that the referees were aware of the “incident giving rise to the allegation” but none of the references expressly mention an allegation of sexual abuse although the reference provided by a charity worker recounts having read a text message from D making allegations against the Appellant, and the brother’s reference stated that he was “aware of allegations that [D] has made” but his view was that allegations of “inappropriate behaviour” were without foundation.

The DBS’ final decision, taken on 10 August 2021, was to include the Appellant on the list of persons barred from working with children and the list of persons barred from working with vulnerable adults.

The DBS’ principal finding of fact was that, on dates prior to 1 April 2019, the Appellant sexually assaulted her daughter D by touching her breasts and vagina and that this occurred “on multiple occasions and different locations” when D was aged 11 or younger. The DBS also found that, on dates prior to 3 May 2019, the Appellant “showed manipulative and controlling behaviour” towards D by attempting to control how foster carers cared for her, seeking weekly updates while D was in care, stating that D has mental health problems despite knowing “that this has not been diagnosed”, chasing D at school and through a shopping centre, and texting D's friends, having obtained their contact numbers from D’s phone bill, and questioning them about D.

DBS’ decision letter explained their evaluation of the evidence:

“Your representations have challenged the findings made by us. We have considered them alongside the information we already hold. Upon assessing your representations against the information that we already held, it was established that [D], your ex-husband and the foster parents were deemed to be more credible. Your explanation that the accusations of sexual assault had been fabricated between your ex-husband do not appear to be credible as these accusations were made whilst [D] was in foster care, also you stated within your representations that [D] was prompted by the foster parents to say that the allegations were sexual, and that the police used oppressive techniques to gain the complaint from [D]. As [D] gave a detailed account of the allegations against you, describing, when, where and how the sexual assaults took place, she was deemed to be credible, and this level of detail, consistently recalled appears unlikely to have been fabricated.

It is also acknowledged that you challenged the DBS' secondary findings…The DBS have no reason to question the credibility of [foster carer], and she appears to have been credible in her recollection of the events.

The DBS also assessed your representations of you stating that [D] had mental health problems…within the information received by the DBS it is stated that [D] did not have mental health concerns, and that her behaviour was likely due to her home life, due to this information being received from professional organisations, your explanation has not been deemed to be credible in this instance.

Also whilst assessing the context that you gave in relation to contacting [D’s] friends by using her phone bill and chasing her through town and her school awards ceremony, these behaviours led to complaints by the parents of other children and have been reported by your ex-husband, who has previously been credible in his recollection and the DBS do not hold any information to suggest why he would fabricate these incidents.”

The DBS found that the Appellant had “a sexual interest in pre-pubescent females” and “demonstrated a callousness / lack of empathy on various occasions and in various ways towards your daughter”. The Appellant’s supporting references “do not alter the DBS’s findings and they do not reduce our initial concerns”.

The Appellant’s inclusion on the children’s barred list was probably, it seems to us, inevitable in the light of the DBS’ findings. However, the DBS also included her on the vulnerable adults’ barred list. Their rationale for doing so was as follows:

“It is acknowledged that these incidents do not appear to have involved vulnerable adults and that this behaviour did not occur in regulated activity, but you appear to have demonstrated that you are willing to transgress legal boundaries to satisfy your own sexual needs regardless of the harm that this causes to those in your care. If you were to demonstrate this type of behaviour whilst caring for vulnerable adults, then this is likely to endanger them, as such we are also satisfied that it is appropriate to include you in the Adults’ Barred List.”