[2024] UKUT 126 (AAC)

Tribunal’s finding of fact: the appellant’s arm or arms did connect with L’s chest and shoulders

We do however accept the allegation in the Serious Incident Report, initialled by the only person (AD) said to have seen this part of the incident, that the appellant’s arm or arms did connect with L’s chest and shoulders. We frame this finding as connecting with L’s chest and shoulders because the Serious Incident Report did not say the appellant connected with L’s upper body in addition to his chest and shoulders (contrary to how it was put in the decision letter: “hitting his upper body, chest and shoulders”). The Serious Incident Report said “connecting with his body (chest and shoulders)”. It did not mention upper body at all. “Upper body” appears to have crept in with later repetitions of the incident, to describe chest and shoulders. But it has then acquired a life of its own in becoming an additional area that the appellant’s arm or arms were said to have connected with.

We find that this “connecting” occurred while the appellant was “swinging her arms in the direction of [L]” as AD reported in the Serious Incident Report. That does not however mean that the appellant intended to hit L rather than simply flailing in trying to fend him off. First, she had not had de-escalation training. Second, we accept her evidence that she thought that she was not allowed to leave the room and thereby leave L alone. Given both of those points, it is likely, and we find, that the appellant’s arms were indeed flailing, and connected with L, as she tried to fend him off.

We make this finding despite its not being the appellant’s case because we find that the appellant simply does not recall making contact with L. We say that for the following reasons—

Moreover, when someone tells the appellant that her arm or arms did in fact make contact with L, it is not surprising that the appellant, not recalling it, does not wish to accept it as a fact (especially in appeal proceedings whose outcome will affect her career). But that does not mean she is lying on that point.

We asked Mr Serr: what if we found that, in flailing her arms, the appellant did make contact with L, but not intending to assault him. Mr Serr submitted that it would be difficult for the tribunal to make that finding because it would not fit with either party’s case. He submitted moreover that such a finding would not reflect the documentary evidence. He said, though, that such a course is open to the tribunal in some circumstances.

We disagree that such a finding would not reflect the documentary evidence. The Serious Incident Report initialled by AD – the only person who professed to see this part of the incident (apart from L himself from whom there is no statement) – said that AD saw the appellant’s arms connecting with L’s chest and shoulders. As we observed earlier, the neutral “connecting” was chosen instead of another verb such as “hitting”. And AD and the Serious Incident Report said nothing about the appellant’s intention. The Serious Incident Report was evidence provided by the DBS. Our finding is therefore consistent with the DBS’s own evidence.

Those were our reasons for finding that the appellant did not assault the child.

We turn next to the DBS’s other finding, that the appellant said “if he hits me I’ll hit him back I’m not scared of him”.