[2024] UKUT 401 (AAC)

In response to a question from the panel at the hearing, Ms Anderson, for the Appellant, said that she did not have anything akin to a letter of instruction for the Appellant’s references but that those given by her sons were written in the presence of an appropriate adult. Ms Anderson submits that the Upper Tribunal should not attach less weight to the Appellant’s references because there is no letter of instruction. Virtually all the referees describe the Appellant as honest, reliable, possessing integrity, kind, a good mother, and having a strong sense of justice. Significant weight should be given to the references provided by the Appellant’s sons. The Appellant’s witness statement describes her career in nursing followed by employment in the charity sector and culminating in her setting up her own charity to support parents whose children have mental health problems a history that is consistent with the views expressed by the Appellant’s referees. The DBS gave insufficient weight to the absence of a criminal prosecution and the references provided by D.

Ms Anderson questions whether findings as to manipulative and controlling behaviour may properly be described as value judgements. These allegations were pleaded and instances in support identified. A finding of manipulative and controlling behaviour is akin to a finding of dishonesty which is clearly not outwith the Upper Tribunal’s appellate jurisdiction under the 2006 Act.

The Appellant argues that the absence of corroborative evidence is a fundamental weakness in the DBS’ case. In written submissions, the Appellant argues that D’s credibility is undermined by her history of poor mental health and that her history of poor relations with the Appellant “may give her a motive to fabricate these allegations”. The Appellant’s skeleton argument submits that D is not a credible witness and “has a history of documented mental health difficulties…including self-harm and ‘hearing voices’”. The skeleton argument also argues that the sexual abuse allegations “have been fabricated by [the Appellant’s] ex-husband…as well as her daughter”. Overall, the finding of sexual abuse was not reasonably open to the DBS on the evidence before it, and the DBS failed to provide any adequate explanation as to why D’s account was preferred to the Appellant’s.

Ms Anderson submits that the Appellant’s oral evidence significantly enhanced her credibility. She gave evidence at length and did so voluntarily. Oral evidence is the ‘gold standard’ of evidence and must be considered more valuable than simply written documents. The Appellant has not tried to gloss over her own failings, but she has highlighted steps taken to improve her parenting such as stepping back from LAC review meetings when it was clear that D did not want her to attend. The Appellant also told the Upper Tribunal if she could not remember a particular date. She did not try to make anything up.

Ms Anderson submits that, on the evidence before the Upper Tribunal, it cannot be said, on a balance of probabilities, that the Appellant sexually abused her daughter as alleged. The Appellant has always strongly denied the allegations and maintained that denial in her oral evidence. When the allegations were made in 2019, there were no pre-cursor allegations despite D’s ongoing assessment and support from trusted professionals and other adults.

The DBS criticise the Appellant for what they describe as a ‘bare denial’. However, the Appellant does not have to prove anything and, in the evidential circumstances, it is difficult to see what more she can do than deny the allegations.

In weighing up D’s evidence, the Upper Tribunal should take into account that it has heard no live evidence from D as well as her documented mood / mental health problems. It should also take into consideration the poor quality of D’s evidence. This all began when D wrote the letter ‘s’ on her iPad which the foster carer interpreted as sexual abuse and, even then, D’s supposedly confirmatory response was non-verbal and, Ms Anderson submits, elicited by the suggestiveness of D’s foster carer. This climate of suggestiveness carried over to D’s police interviews in which D’s communication was, to a significant extent, also non-verbal.

While the evidence shows a deterioration in D’s behaviour from around age 11, there were other possible triggers than sexual abuse. D’s allegations must be viewed in the light of evidence of a very acrimonious marital split and the effect that this had on D. What, asks Ms Anderson, might explain the breakdown of the relationship between D and the Appellant if there was no sexual abuse? Before making the allegation of sexual abuse, D gave consistent reasons for not wanting to be around her mum: she told various professionals that her mum nagged and ignored her, she did not like being instructed by her mother, her mother never listened to her, and D felt she was treated differently and unloved in comparison with her brothers. These considerations are far more likely to explain D’s behaviour than her mother’s sexual abuse.

The Upper Tribunal must take into account that the police found that there was insufficient evidence to charge the Appellant with any offence.

The Appellant has consistently and plausibly denied that she unreasonably sought to control D’s foster placement. Her actions can only be viewed as those to be expected of any concerned parent whose child enters state care. The same applies to her interactions with D’s schools.

The DBS’ reliance on the absence of D’s formal diagnosis with a mental illness is simply semantics. D refused to eat, was referred to CAMHS and received significant clinical input. To a lay person, that describes a person with a mental health problem. The Appellant’s interactions with professionals demonstrate no more than a desperate parent who felt let down by statutory agencies.

Regarding the allegation that the Appellant chased D at school and in a shopping centre, the Appellant’s case is that D may have misinterpreted events. In any event, the Appellant had the right to be at D’s school and the shopping centre incident simply did not happen. Regarding the allegation that the Appellant contacted D’s friends, the Appellant did not view this as abnormal and the evidence that the phone calls caused worry came only from the ex-husband and, even then, it was third hand evidence.

In relation to ground 2, Ms Anderson submits that, if the finding of sexual abuse stands, it cannot be relied on as evidence of a sexual interest in young adults or older children. There is no risk to be guarded against. Inclusion in the vulnerable adults barred list must therefore be disproportionate. Even if the DBS’ findings of fact stand, it was irrational and disproportionate to include the Appellant on the vulnerable adults barred list. The alleged misconduct was of a very specific type involving sexual interest in young female children. That sort of deviance cannot properly be considered to pose a risk of harm to vulnerable adults.

If the Upper Tribunal were minded to find that D’s mental health difficulties are explained by sexual abuse, it should pause to consider the above matters as well as D’s reaction to her parents’ divorce and her difficulties in school.