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Oral evidence
Oral evidence
The appellant gave oral evidence at the appeal hearing, from about 10.30am to 1.30pm. This included questioning by the panel and cross-examination by the DBS’s counsel. The appellant reiterated her denial of having assaulted the child and even of having touched him at all. Her oral evidence included the following—
“I can’t remember the date, but I remember the incident. My shift was meant to finish at three. Manager asked me to stay over for late shift until 11 o’clock. At that point [L] was taken out with the other staff. Around six or seven they came back. He was in the lounge area. He was trying to get my attention; I know he plays around. I didn’t give him attention. He went to the kitchen to fill water bottle. He came back and started filling mouth, squirting from mouth on to my body, maybe six or five times. I went to the garden but could still see him. Then he went to refill the bottle again. I came back from the lounge, he continued. I took the bottle from him – [shows us] – then he kicked me on my thigh, like so [shows us]. I screamed. We were not holding each other. He was just hitting me. The staff saw him hitting me ’cause when I screamed they came out, two of them, they saw him hitting and kicking me and they had to hold him. Before I screamed, was just me and him in the lounge area. Two ladies came, just one of them was holding him. [L] was just not, you know, they couldn’t hold him, he was still coming at me, calling me names saying will kill me. He went outside, he was just kicking the bins, the trash, throwing stones into the window, going to kill me, black bitch, all sorts of abusive words. Can’t really remember, but swearing words. So I was asked to go to the staff room and wait, ’cause maybe seeing me was triggering him. I was asked to go home”.
The appellant’s cross-examination by Mr Serr included the following—
“Q – Did you ever see instructions re dealing with him in his care plan?
A – I read some of his care plan.
Q – You would need to familiarise yourself with that?
A – Yes.
Q – He had ADHD, oppositional defiant disorder, ASD and anger issues. Main way was to try to calm him down talk him down, the general way?
Judge to Mr Serr – Do you mean in the care plan?
Q – Was it in the care plan?
A – No.
Q – Where was it agreed to verbally de-escalating?
A – It wasn’t.
Q – You did not know about verbally de-escalating?
A – No.
Q – Really? Working in a care home with special needs children? Page 195 document says you had safeguarding children advanced?
A – Yes, but what I know then and know now. If I had had that knowledge, it would have been different.
Q – With someone like L, if he is exercised or angry or emotional then meeting that with a physical response would be like petrol on a fire, opposite effect?
A – Well yes, but I didn’t know that.
Q – No physical fights or arguments with him from July until the incident?
A – No.
[…]
Q – So he comes back from the trip, three staff around at the time, he gets meds, administered by staff?
A – Yes.
Q – Then PR leaves about half eight and the other two staff have eaten and then in the office and at some point you are left alone with L, in what is called the reception area?
A – Lounge area. Yes, TV, children to relax.
Q – Can’t see what’s going on in the reception from the office can you?
A – No.
Q – So he is fooling around with the water bottle?
A – Yes.
Q – Putting water in his mouth and you telling him to stop?
A – [Answer unclear].
Q – You’re telling him to stop?
A – Yes.
Q – And he is not stopping?
A – Yes.
Q – And you’re telling him to stop ’cause he is spitting water at you?
A – Yes.
Q – Why don’t you just walk away?
A – I did walk away. I was sitting, so I stood up where I was and moved away.
A – At some point I went out in the garden. When I came back in, he continued. I could not leave him ’cause I was the only person with him. Yes I stood up to get the water bottle from him.
Q – Before you grabbed the bottle from him, was he laughing?
A – He was angry.
Q – He wasn’t being playful in spitting the water?
A – No.
[…]
Q – PR goes to collect child. [AD] is in the office stock checking. I don’t know whether [DJ] was still in the office.
A – Don’t know.
Q – AD says she heard shouting from both you and L. So whatever has happened has escalated. You told the tribunal that, when you took the water bottle from him, you told the tribunal he hit you.
A – He hit and kicked me.
Q – So what did you then do?
A – I move away.
Q – How – duck away or turn your back and walk out?
A – No didn’t turn back. I was backing away.
Q – Didn’t raise your hands at all to a child hitting you?
A – No.
Q – Confused why you didn’t physically walk away and into another room.
A – The lounge is quite big so you won’t be in his face. I didn’t know what best to do at that point in time.
Q – One might understand lifting hands in a defence position but you say you were not even doing that.
A – I was just trying to move away, not [sic] point putting hands up.
Q – Did you say anything like calm down?
A – Yes.
Q – [AD] went immediately out and L was standing near radiator be [unclear].
[…]
Q – You agree standing pretty close to each other?
A – Yes.
Q – AD said you were swinging arms overarm connecting with his body – admittedly she comes in mid-way, but she has signed the Serious Incident Report to say this. It might be understandable that you hit out at him. But you say you kept your arms by your side.
A – I don’t know how I could be swinging arms.
Q – If you were worried about him, would it not be better to move out of his way?
A – [Answer not heard properly].
Q – What did you think was gonna happen with you standing there?
A – I did not just stand there; I was moving around the lounge. Was a big lounge.
Q – She says you swung arms, you say never happened.
A – I can’t say.
Q – The note says he was wet.
A – I was wet.
Q – So he was not wet?
A – From him spitting water on me.
Q – From when you grabbed the bottle?
A – Maybe.
Q – The bottled is then on the floor, you agree?
A – Eventually on the floor.
Q – All this anger from him, seems a lot of anger to be generated just from pulling a water bottle out of his hand.
Q – Was he really angry ’cause you hit him and not ’cause you took the water bottle from him?
A – No.
[…]
Judge – Did you say “If he hits me, I’ll hit him”?
A – No. When I screamed for help, I was saying “he’s hitting me, hitting me, stop hitting me”. I don’t know where that came from.
Mr Hutchinson panel member – In the structured judgment by the DBS – point 20 – requested that all agency staff had undertaken some of sort of training. Had you had any restraint training, or managing behaviour?
A – Had no restraint training, not to do with de-escalation.
Mr Hutchinson – So what’s your view of the DBS finding that is likely that you had training?
A – Well the police asked, and my lawyer asked this, but I was not trained in restraint, or in crisis handling. And if I was, I would have handled it better.
Mr Hutchinson – So that view is wrong?
A – Yes.
Judge – Any training in moving someone away from a situation?
A – No, just manual handling. No training in moving away from situation or orally de-escalating.
Mr Hutchinson – Would the home and agency be aware?
A – The home might think I have the training, because I was given that shift by the agency. But I didn’t. I did have training on care.
[…]
Q (Mr Serr again) – It might be said, I guess, that a lot of the post-Serious Incident report rehashed what had been said previously.
A – Well, there is my written statement that they did not provide.
Q (Mr Serr) – Yes, very important, but we don’t have it”.
As to the written statement the appellant had drafted immediately after the incident, she further explained in oral evidence—
“I explained everything that happened even though no camera was there that would be my saving grace. I was there three months before [L] came. He came twice. They moved him then they brought him back. When I explained to the manager what happened [unclear]. Yes I did write on the paper, was A4. I wrote almost to the end then signed it. Never seen it again. … They [the staff] didn’t show me my statement. I called my agency to explain what happened and they said waiting for statement that I gave to the home, but they never gave it to them.”.
The appellant addressed in oral evidence the alleged admission she had made to BD, the Acting Assistant Team Manager who had arrived on scene after the appellant and L had been separated. This was the appellant’s oral evidence—
“Ms Jacoby panel member – Can you remember what you told [BD], what did he ask?
A – He asked me, and I told him like I have just said now, he gave me a pen and paper to write it down. I said touch me I am wet. He said don’t touch but can see wet.
Ms Jacoby – And what was your relationship with [BD]?
A – Was ok – [explains something about children – unclear].
Ms Jacoby – Repeats question: Your relationship with him?
A – Ok.
Ms Jacoby – Anything that would cause him to say something that was not true?
A – Not sure. I worked with other children, even though I new to care, I am not a person that would want to cause harm or cause suffering to child. Since joining the house, I have had no problem with anyone. They made it feel safe for me to work and no discrimination whatsoever.
Judge – So can you think of any reason why he would make that up?
A – I rang him: “Can I see my statement that I wrote in the room, where I said I hit him. ’Cause I didn’t say that”. He said, “not”.
Q – Why would he say that?
A – I don’t know. May be my language. Maybe he didn’t hear me real good. I am African. When I came here few years ago my English was not pure. I never said I hit him – only that he hit me. Maybe he misunderstood. He just listened, didn't probe”.
The appellant also gave oral evidence about training that she has received since the incident—
“I have since had training. When I read the email I was not happy [about being referred because of a risk of harm]. I just want to persuade that, maybe I should not go about it like that, maybe I should go for a walk, but ’cause he was just a child I can’t leave him. I understand that he is just a child and has needs, special”.
- Heading
- REASONS FOR DECISION Introduction
- Factual and procedural background
- Conduct
- Barring process
- Final Decision letter
- Permission to appeal application
- Grounds of appeal
- The appellant’s own contemporaneous account was missing
- Documentary evidence
- Oral evidence
- Submissions
- C: Law
- Case law
- D. Analysis Preliminary analysis: the written evidence
- Mistake of fact in finding that the appellant assaulted the child
- (We return later in this decision to what we make of this part of the Serious Incident Report.)
- Tribunal’s finding of fact: the appellant’s arm or arms did connect with L’s chest and shoulders
- Whether mistake of fact in finding the appellant to have said “ if he hits me I’ll hit him back I’m not scared of him ”
- Proportionality
- Disposal
- Conclusions