[2024] UKUT 391 (AAC)

The evidence and submissions relied upon by the DBS in relation to this finding are addressed above [251-252/263]. The Appellant supplied emails which include the following from PS to him on 25 May 2021:

Mr Serr submits that it is difficult to identify the mistake of fact relied on by AVS in his recent submissions [271-272] as opposed to a quarrel with the DBS about the seriousness with which this conduct should be viewed and whether in AVS’s view it was harmful. Whether it was advice/guidance/recommendation or an instruction (the decision letter indeed refers to it as advice/guidance [176]), AVS did contact DM after he was told not to by the social work team. The fact that AVS says at para 18 [280] that he distinguished between a request and an instruction and sought legal advice on the issue continues to demonstrate a disregard by AVS of the advice of the experts that he was receiving for the good of the child.

This allegation is addressed by the Appellant in his letter of 3/6/21 set out above, in the letter of representations in response to the MTB in April 2022 [para 36 to 45], the Notice and Grounds [p199, para 48], further submissions on behalf of the Appellant [p271-272].

The Appellant states in his witness statement dated 30 June 2023 [280 and 282 para 18, 19, 29 to 31], repeatedly, that this was a request or advice, rather than an instruction (as asserted by the Respondent) from the fostering team.

The Appellant gave oral evidence consistent with this.

The Appellant has produced the totality of WhatsApp messages [290, AVS3] between himself and DM, which make clear that the Appellant made contact with DM by messaging him between 25 and 27 May 2021 but did not send any thereafter and did not respond to any messages from DM to him after 27 May 2021. He states that the messages demonstrate the high regard DM has for the Appellant. They also make clear that DM complained to the social workers absent any coercion or discussion with the Appellant.

It is accepted that the Appellant contacted DM from 25 to 27 May 2021 in multiple text messages after being asked not to by PS in an email earlier on 25/5/21 (see the number of messages beginning at [130-135]). For example:

It is acknowledged in the BDP that there was no prohibition on the Appellant contacting DM, only that PS had stated in the email of 25 May 2021 that they " would appreciate it if [the Appellant] did not contact DM at this stage" [212].

In respect of this finding, we are satisfied that the Appellant was requested by a social worker on behalf of children’s services not to contact DM on 25 May 2021 and that this was language was clear whether it was advice, guidance or an instruction (even if in reasonably polite terms). The request was made on the basis of DM’s wellbeing and on behalf of a social worker and Children’s Services – a reason was therefore given to AVS.

The request to cease contact came, on 25 May 2021, at some time after the initial email alerting the Appellant that DM was not to return to his care. The recently disclosed emails corroborate the Appellant's evidence that the news that DM was to be removed from his care was communicated in very short and abrupt terms at 11:51am on 25 May 2021.

The relevant request was sent by email to AVS thereafter: "we would appreciate for you not to contact [DM] at this stage as he is not well and would have an impact on his wellbeing".

We are also satisfied that the Appellant understood the nature of that request based on the text message he sent DM at 17.02 on 25 May 2021 set out above. We do not accept the Appellant’s evidence that there was anything ambiguous or unclear about the request in the nature of the language ‘we would appreciate’. It was clearly a request not to contact DM. Further, it is not in dispute that AVS thereafter contacted DM in multiple text messages between 25 and 27 May 2021 as he accepts.

We accept that it was reasonable for the DBS to come to the view that the Appellant should have complied with the request in circumstances where Children Services had responsibility and authority to make request of (and ultimately direct) the Appellant as a foster carer.

We are satisfied that the DBS was entitled to find that the Appellant should reasonably have acceded to the request and authority of the social worker in circumstances from 25 May 2021 where the child was no longer in his care or responsibility. In the absence of written and clear authority, the Appellant should reasonably have complied with the request, guidance or advice even if he disagreed with it. The Appellant had mechanisms by which he could disagree or complain about the request but was not reasonably entitled to ignore it in the meantime.

Even if the Appellant profoundly disagreed with the initial request on 25 May 2021, he should reasonably have complied with it until the position had been confirmed after any challenge or complaint. Likewise, even if he took legal advice, the Appellant was not entitled unilaterally to ignore the request without clarification or confirmation either from Children Services, a social worker or court (having succeeded in a legal challenge). Children’s Services had ultimate responsibility for the wellbeing of DM who was a very vulnerable child with a history of mental health difficulties, self harm and trauma in his recent background (including his mother’s alcoholism and father’s recent suicide).

We also accept that the Appellant questioned the logic of the decision and was not finally instructed to cease contact until 27 May 2021, when contact did cease. While we accept the Appellant's evidence that he did not understand the force of the request on 25 May 2021, it was not explained to him until 27 May 2021, and the email was not a clear direction not to contact DM, it was still a request from an official with responsibility for DM’s care.

The text messages at [290-293] between DM and AVS from June 2021-November 2021 also evidence the fact that AVS and DM remained in contact long after he was removed from AVS’s care and the instruction was given to AVS not to have contact.

However, it is to the Appellant’s credit that from 5 June 2021 to 23 November 2021 there were a number of text messages sent from DM to the Appellant [136 to 137] to which the Appellant did not respond. This is contact by DM to AVS rather than AVS contacting DM. The emails and messages corroborate the Appellant's evidence on that point. It is to be noted that contact ceased once a formal investigation had begun. There also seems to be no doubt that DM thought highly of AVS and wished to continue contact with him.

We are satisfied that there was no mistake of fact in that part of the finding made by the DBS that contact continued and was initiated by the Appellant between 25 and 27 May 2021 when he had been requested not to do so for the wellbeing of DM. There was no mistake of fact in that part of the finding.

Nonetheless, the DBS was mistaken if finding that the text message communication which followed the initial request [p130, 17:12 to 27 May 2021, 10:58] included any information about the fostering investigation. The Appellant was unaware of the investigation for four days after DM's removal. We find that this aspect of the allegation amounts to a material error of fact.

It is also important to note that having reviewed all the contents of these messages between 25 and 27 May 2021 and 5 June 2021 to 23 November 2021 we are not satisfied that the Appellant shared information about the fostering investigation with the Appellant during this time. There is no reference to it in the messages.

Therefore, we are not satisfied that the Appellant shared any information with DM about the fostering investigation in writing or as result of the Appellant making contact with DM. This again is to the Appellant’s credit and reveals a mistake of fact in the DBS finding.

However, while it is accepted that the text messages sent by DM to AVS after 27 May 2021 emanate from DM, AVS appears to have done nothing to dissuade DM from continuing to contact him. The Appellant demonstrated insight into these concerns in response to the Minded to Bar letter [p113].

As a result, the next contact between DM and the AVS was on 9 August 2021 when DM came to visit the Appellant in person at his office. We do not find this to be the Appellant contacting DM but DM contacting AVS. The contact on 9 August 2021 followed an unsolicited visit to his place of work by DM. The suggestion that the Appellant sent a message to DM to precipitate the meeting is denied and there is no proper evidence provided to substantiate the assertion that was made at the strategy meeting.

The Appellant accepted in oral evidence that DM came and stayed for about an hour or so on 9 August 2021. The Appellant stated that the discussion between him and DM concentrated mainly on pastoral and welfare issues but he accepted in cross examination that he may have briefly mentioned the fact that Children’s Services were investigating him – albeit not in great detail.

We are satisfied that the Appellant did share some high level information about the fostering investigation with DM at this contact on 9 August 2021 – at a time not when the Appellant contacted DM but when DM contacted him.

We accept the Appellant’s further evidence about this meeting. On this occasion, DM told AVS that he wanted an advocate and the trust would not allow this. The Appellant therefore advised him to write down and date his concerns and this was done in DM’s ‘wishes and feelings letter’. A copy of those concerns in the ‘wishes and feelings letter’ was provided to DCST by AVS following him seeking advice from his independent advisor. The Appellant told the Tribunal that he was still a foster carer and gave DM advice about his absolute right to advocacy, took his complaint [p138], advised DM to write down his concerns and that it was, in such circumstances, the Appellant's duty to pass that on. He denied grooming DM or putting words into his mouth. We do not accept that the Appellant did this on the balance of probabilities. It cannot be reasonably be inferred from the nature of DM’s letter. It is apparent from his text messages that, whatever his vulnerabilities, he was an articulate 15 year old capable of expressing his own wishes clearly and we are satisfied that he drafted the letter of his own accord because he wanted to.

At the strategy meeting on 19 August 2021 there appears to be some evidence of a concern that the Appellant shared his wishes for the outcome of the children's services investigation with DM and therefore encouraged him to write the ‘wishes and feelings’ letter. The same is not discussed within the BDP related to this allegation. The allegation is that the Appellant shared and requested information with DM around the fostering investigation and of what his wishes for the outcome of this were to be, as well as showing a disregard towards requests to turn DM away if he were to visit him.

The DBS also relies upon the letter dated 29/09/21 from D[] Children’s Services Trust to DM in reply to his ‘wishes and feelings letter’ provides further support to these allegations for which AVS was placed on the CBL.

The Appellant accepted that at the meeting on 9 August 2021 DM wrote the letter to Children’s Services in support of him. The BDP highlights that there was a speculative discussion within the 19 August 2021 strategy meeting that there were "concerns" that the Appellant had influenced or coerced DM into supporting his case with children's services.

This is not sufficient evidence to support a finding that the Appellant in fact influenced DM into supporting his argument as to why DM should be returned to the Appellant's care. This finding is made on the basis of a speculative discussion reported in the multiple anonymous hearsay minutes of a strategy meeting. We prefer the Appellant’s oral evidence on this topic.

We are satisfied that, notwithstanding our findings of mitigating factors, there is no mistake of fact in the finding that ‘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 your care’. We are also satisfied that ‘on 9 August 2021 when DM contacted the Appellant he shared information with DM about the fostering investigation.’

We therefore find that there are mistakes of fact in the second finding. We accept that the Appellant contacted DM for two days after being requested not to for his wellbeing. However, thereafter DM contacted the Appellant. Some high level information about the fostering investigation was shared on 9 August 2021 but this was on a date when DM contacted the Appellant. Therefore, part of the second finding is confirmed but part of the second finding contains mistakes of fact.

Further we are not satisfied that, based upon our fresh findings of fact, the Appellant’s conduct harmed or was likely to harm or endanger DM – there is no reliable evidence that he was emotionally harmed by the contact on 25-27 May 2021 nor by the subsequent contact which DM initiated (indeed, the fact that DM initiated contact throughout the period June to November 2021 and the contents of the messages supports the finding that he was not harmed). There is no reliable evidence of DM actually being endangered, at risk of harm or caused harm by the messages. A belief, expressed by an unknown social worked at a strategy meeting on 19 August 2021 [213] that the contact was having a negative emotional impact on DM is insufficient to support a finding on the balance of probabilities that DM was put at risk of or caused any harm by the contact.

It is also relevant that some months later, DM, through his advocate, expressed directly to the local authority that he wished to maintain contact with the Appellant and that preventing that contact was emotionally harming him [see in particular 302-3].

We do however find that the Appellant’s conduct in contacting DM between 25-27 May 2021 after being requested not to do so by a social worker for his wellbeing, would be likely to put a child at risk of emotional harm, if repeated in respect of a different child and is therefore capable of amounting to relevant conduct for the purposes of paragraph 4 of Schedule 3 to the Act.

While we are satisfied that there were mistakes of fact in the DBS’s finding, we are satisfied that our own findings could amount to relevant conduct. Nonetheless, we are satisfied that if the action of ignoring a request not to contact a child for their wellbeing made by a social worker or children’s services for a foster parent in the position of the Appellant were repeated in relation to a vulnerable child it would be likely to put them at risk of emotional or psychological harm.