[2024] UKUT 401 (AAC)

We find that the DBS’ crucial finding of fact, that the Appellant sexually abused D in the manner described by D, was not a mistaken finding of fact.

The DBS’ other findings of fact were relied on by the DBS as showing manipulative and controlling behaviour. These findings of fact were very much subsidiary to the finding that the Appellant sexually abused her daughter, and we agree with DBS’ counsel that, on their own, would not have justified their barring decisions.

We do have doubts as to the correctness of these subsidiary findings of fact. In our view, it is quite normal for a parent whose child is in care to want to be as closely involved as possible in care arrangements especially where, as in this case, parental responsibility remains vested solely in the child’s parents (D was not subject to a care order). The evidence shows that D exhibited serious mental distress, self-harmed on a number of occasions and was admitted to a secure mental health facility. All of that was consistent, at least to a lay person, with a child experiencing a mental health problem and the fact that a formal diagnosis of a mental disorder may have been absent cannot properly be relied on as the basis for a finding that the Appellant falsely claimed that her child had mental health problems. The ‘chasing’ evidence was second hand being found in the father’s report of statements made to him by D and none of D’s first-hand evidence mentioned these chases. In any event, even if true, we doubt that two instances in which a parent openly sought to communicate with a separated child are a proper basis for a finding of manipulative and controlling behaviour. The same evidential weakness apply to the finding that the Appellant contacted some of D’s friends by telephone.

However, our doubts as to the correctness of the DBS’ subsidiary findings of fact make no difference to the outcome. We do not consider these to have been findings of fact on which the barring decision was based so that, even if they were mistaken findings, they are not a ground for allowing this appeal (see section 4(2) of the 2006 Act). Even if the DBS had made no findings as to controlling/manipulative behaviour, we are satisfied that they would have made the same barring decisions. We are certain that these findings did not ‘tip the balance’ in favour of barring so that, without them, the DBS would have considered the sexual abuse finding to be an insufficient basis for barring the Appellant. And, on their own, the findings as to controlling/manipulative behaviour, would clearly have not justified any barring decision.

To conclude, ground 1 is not made out. The DBS’ finding that the Appellant sexually abused her daughter was not a mistaken finding of fact. The DBS’ other findings of fact were not findings on which their barring decisions were based so that, even if they were mistaken, are not a ground for allowing this appeal.