[2024] UKUT 391 (AAC)

The submissions relied upon by the DBS in respect of this finding are set out above. The evidence relied upon by the DBS for this comes from D[] Childrens Safeguarding Trust and LADO meetings [191] and the inference from AVS’s own admission that DM had to be ready to leave the house by 6.30am. The impact on DM’s mental and physical health is documented by PS, the supervising social worker.

Notwithstanding the evidence relied upon by the DBS to make its finding we are satisfied that the finding is based upon material mistakes of fact. The finding is addressed in the Appellant’s original letter to Children’s Services on 3 June 2021, letter of representations in response to the MTB in April 2022 [para 46 to 50 and see p113] and the Notice and Grounds [p199-200, para 49 to 51] and further submissions on behalf of the Appellant [272].

The Appellant's witness statement dated June 2023 also sets out his response to this allegation [p281, paras 21 to 23].

The Appellant gave oral evidence consistent with the statement. The only evidence we have from DM is contained in the letter from children’s services in response to DM’s ‘wishes and feeling letter’. The letter states that it was DM's choice to get out of bed at 5:30am [299]. This is supported by the evidence of AF and SH.

We accept the Appellant’s evidence as being reliable on the balance of probabilities and as follows. He stated that he gave DM the choice as to when to wake and how he was to get to school. If DM wanted a lift from the Appellant then DM knew he would have to leave the house at 6.30am to travel in the car with the Appellant, spend time in the office first and then be driven to school. The alternative was that DM could make his own way to school by bus but DM would have to at the bus stop for 6.45am to get to school. DM, as a teenager, was given autonomy and could set his own alarm and choose how and when to get up. DM was able to get sufficient sleep which complied with the NHS guidelines. When DM did complete schoolwork prior to school while at the Appellant’s office then this was DM’s choice and to his benefit.

There is no direct or reported evidence that the Appellant woke DM at 5:30am or that doing so resulted in DM being tired and lethargic. It was simply an inference or conclusion drawn in the LADO minutes. There is no explanation within the BDP for the finding that the Appellant woke DM. The complaint appears to be that the Appellant did not let DM sleep in but dropped DM to school, as suggested by PS [216].

The evidence that DM was tired and lethargic as a result of waking early is unreliable, multiple hearsay, which amounts only to speculation that DM was lethargic due to waking up early. If DM was tired and lethargic, there is no reliable evidence that this was due to anything the Appellant said or did. The causal link was not established. This is not acknowledged in the BDP.

Further, there is no reliable evidence from which it can be reasonably inferred that DM was endangered, caused or put at risk of any physical, emotional or psychological harm from waking early. DM was a teenage boy. His school provided a positive reference to the LADO, attesting to the Appellant's support of DM's education "at all levels, he ensured D attended school, offered school runs, supported his academic achievements and offered outdoor and more in-formal methods of education through after school and social activities". This again accords with the Appellant's evidence about encouraging homework and revision and taking educational trips.

DM explained in his complaint letter [302] that the Appellant was helping with his physical health by arranging and accompanying DM to appointments, noticing changes in his physical health. It appears that, without sufficient evidence, the local authority jumped to conclusions, which were adopted, by the Respondent. The primary facts and conclusions are not established on the balance of probabilities.

The Tribunal accepts the Appellant's evidence that he and DM trialled having longer lie ins, but that this resulted in DM being tired at school and they decided this was not working for DM. This was discussed at a meeting with social services earlier in May 2021, who did not disagree or raise any further concerns about DM's morning routine in the Appellant's review meeting.

We are satisfied on balance that the Appellant did not wake DM at 5:30am. We are not satisfied that DM was tired and lethargic due any actions of the Appellant. These mistakes of fact in the finding were material to the barring decision.

There were mistakes of fact upon which the finding, which appears within the BDP [222-232] and the Final Decision Letter, and barring decision were based. The errors of fact are material.

Further on the basis of the findings of fact we have made, we are not satisfied that the Appellant’s actions amount to relevant conduct, or would be capable of giving rise to a risk of harm to a child such that a barring decision based upon this finding would be necessary or proportionate.

We consider that even if the Appellant’s approach to parenting was regimented or partly for his own convenience, it did not cause harm to DM and in any event this is not the specific finding of relevant conduct that the DBS made.