Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 126 (AAC)

Fecha: 18-Abr-2024

Submissions

(7)

Submissions

50.

Mr Serr’s written submissions for the DBS as to the DBS’s assault finding were as follows (pages 182 and 183)—

“38.

There is substantial evidence to support the allegations in the barring decision:

38.1

The serious incident report indicates that [AD] saw [the appellant] swing her arms in an over arm motion in the direction of the child connecting with his body (chest and shoulders) - p.115

38.2

The serious incident report also confirms that the child said he had been assaulted by [the appellant], that she had said if he hits me I’ll hit him back I’m not scared of him - p.115-117.

38.3

The marks seen on his shoulder and arm as documented in the incident report corroborate what [AD] says she saw in term [sic] of the assault - p.116.

38.4

The debrief meeting note attached confirms that [AD] saw [the appellant] swinging her arms connecting with the child’s body - p.121.

38.5

The referral by [BD] to LADO on 27/8/20 confirms the incident report contents. Further, and significantly he’s told by [the appellant] that “I hit him he was spitting water at me” - p.94.

38.6

The JEM meeting of 3/3/21 clearly concludes the allegations are substantiated, [the appellant] has harmed a child and poses a risk to children - p.106.

38.7

The police summary of 30/6/21 confirms that the child says he was slapped by [the appellant], and pushed into a radiator. There is no obvious reason for him to lie. There is no history of problems specifically between the child and [the appellant] prior to this incident. [The appellant] confirmed she hit the child. She said if he’s hit me I’ll hit him back. It confirms that she told a member of staff that “I hit him” - p.124-125.

38.8

In interview 4 months later to the police [the appellant] did deny assaulting the child. There are no witnesses to support [the appellant’s] account that she “never touched him”. Her assertion that she “can’t remember swinging her arms” and then denies it is inconsistent with all the evidence and improbable - p.129.”.

51.

Mr Serr made a further written submission dated 12 January 2024. It reminded the tribunal of the various evidence references and mentioned the recent Court of Appeal judgment in Kihembo v DBS [2023] EWCA Civ 1547.

52.

Mr Serr made oral submissions in accordance with his written submissions, but updated to take account of the even more recent Court of Appeal judgment in DBS v RI [2024] EWCA Civ 95. Mr Serr invited us to find that there was no mistake of fact on either of the two findings. Mr Serr submitted that he did not know whether the police letter to the DBS was independent of the Serious Incident Report; he said the police letter may just repeat other reports. Mr Serr pointed to the third page of the Serious Incident Report as showing what AD had said she saw (pages 54 and 118). Mr Serr submitted that, on analysis, the tribunal may feel that the Serious Incident Report is the key document, and may feel that the others repeat it. He submitted that, if the tribunal were to find that the appellant “never assaulted him, ie. never struck him at all, I accept remove because the threat would not suffice. The key was the striking of the child”.

53.

As to the finding that the appellant had said “if he hits me I’ll hit him back I’m not scared of him”, Mr Serr submitted that what the appellant had meant by this was a present tense narration of the past, that is, that she meant “he hit me and I hit him back”. Mr Serr submitted that it would be a strange way of looking at it to construe it as referring only to the future.

54.

Mr Serr invited the tribunal to find that the appellant did not simply stand there while blows were rained on her. That was, he argued, implausible. It would have been more credible, he submitted, if the appellant were to say “Yes I defended myself, or was raising my arms” and “What AD saw was in fact that she saw me raising my arms to defend myself”.

55.

Mr Serr accepted, in cross-examining the appellant, that “it’s quite clear that the staff in the office did not see the first part of the incident”.