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Conclusions on the Appeal
Conclusions on the Appeal
Mr Serr accepted that there is no question that AVS is an intelligent, accomplished and capable individual-see for example his CV at [25-28]. He no doubt became an approved foster carer in July 2020 with the best of intentions. DM however was a highly vulnerable young person with severe mental health problems. His placement with AVS went catastrophically wrong because of the actions and omissions of AVS. This resulted in the premature ending of the placement and further disruption to an already damaged child (as well as harm or risk of harm occurring during the placement).
He argued that AVS was inexperienced as a foster carer and was unable to prioritise DM’s needs and most concerningly perhaps, failed to adhere to professionals’ guidance, take instructions and communicate with those professionals. It would appear that AVS simply refused to accept the validity of those instructions.
He contended that AVS has demonstrated a deep-seated attitudinal problem to support and advice from professionals in the child care context. There is little evidence of insight, reflection or remorse- see for example the letter before action sent to D[] Children’s Service Trust on 03/06/21 following the termination of the placement- [28-34]; AVS’s statement to the UT dated 30/06/23 [277-282]; and the reviewing officer report of RS dated 07/02/22 [82]:
“When considering his 3 wishes, I am concerned AVS has not understood the seriousness of what happened and the concerns professionals had about his parenting behaviours and I feel concerned that after a year he thinks it would be appropriate for D to be returned to his care. There may be reflection, but I am not sure this is in relation to D. He says he has reflected and I am sure he has in some regards but I do believe AVS has demonstrated some behaviours that he knows professionals will want to hear and I am concerned AVS will not action his changes in the future. AVS has taken no part or no responsibility in any of his actions, choosing to blame rather them [sic] to accept some responsibility.”
Mr Serr submitted that the above both individually and cumulatively evidence serious relevant conduct and on-going risk justifying inclusion in the CBL. The appeal reveals no mistake of fact or law and the appeal should be refused. In the alternative the DBS would seek remission back for further a decision and not removal from the CBL.
Submissions on behalf of the Appellant
We consider Ms Bayley’s submissions in our discussion section below.
- Heading
- The decision of the Upper Tribunal is to allow the appeal of the Appellant
- Rule 14 Anonymity Orders and directions
- The Background
- "Based on the enclosed information, it appears, on the balance of probabilities, that
- Fostering review meeting minutes, 27 January 2022
- Character references
- The Respondent’s barring decision dated 20 June 2022
- Findings of Relevant Conduct
- The material relied upon by the DBS at the time of barring in support of the findings of relevant conduct
- Contacting DM between 25/5/21 and 12/821
- Waking DM early and bringing him to work
- Failing to dispose of medication with which DM then overdosed 6/6/21
- Showing pornography et al in 2018
- Failed to sit at hospital with [DM] on the morning of 24/25 May 2021, as alleged or at all
- Failed to dispose of medication which DM no longer required, as alleged or at all
- Shared with DM his wishes for the outcome of the D[] Children's Services Trust investigation Caused DM physical and/or emotional harm
- Came to conclusions based on inferences that it was not entitled to draw from the evidence Came to a barring decision that was, in all the circumstances, disproportionate
- The decision to include the Appellant on the Children's Barred List was, in all the circumstances, disproportionate Law
- it is satisfied that the person has engaged in relevant conduct, and
- it is satisfied that it is appropriate to include the person in the list
- on any point of law
- If the [ Upper] Tribunal remits a matter to [DBS] under subsection (6)(b)–
- a. “on any point of law” (section 4(2)(a) of the Act)
- remit the matter to DBS for a new decision
- DBS’s submissions
- No material mistake of fact
- The decision was disproportionate
- Transferability/Proportionality
- Conclusions on the Appeal
- Discussion: Findings of Fact and Analysis of grounds of appeal
- The Appellant’s evidence
- Post Hearing application for the admission of late evidence
- The Appellant’s representations from 3 June 2021 and assessment of his reliability
- Ground 1
- Finding 2: On dates between 25 May 2021 and 12 August 2021 you continued to contact DM, aged 15, despite having being [sic] re-quested not to for the wellbeing of DM following DM being removed from yo
- Finding 3: On dates between 20 August 2020 and 24 May 2021, you woke DM, aged 15, at 5.30 a.m. on mornings before school, bringing him to work with you and having him complete work/school work prior t
- Finding 4: On a date prior to 25 May 2021 you failed to dispose of medication which DM, aged 15, no longer required, leaving remaining medication in DM's possession who subsequently took an overdose o
- Finding 5: On a date in 2018, you showed a pornographic image of oral sex that you had as your computer screensaver, showed an air gun and pellets in your drawer, and repeatedly asked three school gir
- Conclusions on mistakes of fact in five findings of relevant conduct
- Erroneous Inferences – Appellant submissions
- Remedy – Remittal to the DBS pursuant to section 4(6) (b) & 7 of the Act
- Mistake of Law - Proportionality
- Appellant’s submissions on Proportionality
- Discussion
- Conclusions