[2024] UKUT 391 (AAC)

The evidence and submissions relied upon by the DBS in support of this finding are set out above. In particular the DBS rely on the LADO notes made by supervising social worker PS dated 03/06/21 [47] and the LADO notes made by PS dated 1/7/21 [37] which state identically:

It is clear from the BDP reasoning in relation to finding 1 that the Respondent has accepted, wholesale and without question, all of the evidence within flags 1 to 8. The reasons given are as follows [p210]:

This rationale is carried through each of the five factual findings of relevant conduct.

The DBS also relies upon the Appellant’s original submissions to the decision maker on 10 June 2022 (approved by AVS in a statement of truth on [108]) in which AVS appears to accept he had acted inappropriately [p97 para 35]:

Mr Serr points out that now in his latest evidence/submissions the Appellant seems to row back from any admission. He also seeks to further put a gloss on his ‘work commitment’ now stating that it was to provide safety equipment for a vulnerable patient albeit this has never been mentioned before [p.279 para 14].

He also relies on the email of PS at [288] dated 24/05/21 and timed at 10.45am as being relevant to finding 1. He submits that the tone of the email makes quite clear the dissatisfaction of PS, a social worker, with AVS’s conduct and failure to support DM by attending the hospital:

The Appellant replied to the email on the following day on 25 May 2021 at 09.04am [287]:

Mr Serr submits that it is clear from AVS’s response that by 25/05/21 AVS accepted that he was not in a position to provide the support needed at that time. His reference to attending hospital the previous day ‘for an hour or two’ (on 24/5/21) is indicative of the Appellant’s failure to prioritise DM at this crisis point. He argues that AVS’s appeal on this allegation raises no arguable mistake of fact within the meaning of the Act. It is simply a quarrel with the seriousness that LADO and the social work team (who felt it justified removal of the young person from AVS’s care) and subsequently DBS ascribed to it. It is simply a submission on appropriateness.

We disagree. The DBS have chosen to rely on a very specific finding of relevant conduct in relation to the Appellant’s conduct in the period 23-25 May 2021 and it is the specific finding of failing to relieve the support worker and sit with DM in hospital on the morning of 24 May 2021 which we must consider. The relevant date is 24 May 2021 (rather than 25 May 2021 as stated in the finding) as the events concern the evening of 23 May 2021 and morning of 24 May 2021 but nothing appears to flow from this.

We are satisfied on the balance of probabilities that the Appellant did not fail to relieve the support worker and sit with DM in the hospital when requested on 24 May 2021 as the DBS found.

The specific finding is addressed by the Appellant in the 3 June 2021 letter, set out above, letter of representations in response to the MTB in April 2022 [para 23 to 35], the Notice and Grounds of appeal [p198-199, para 43 to 47 and further submissions on behalf of the Appellant [p270]. In the Appellant’s witness statement dated 30 June 2023 he states at paragraphs 12 to 17:

The Appellant gave oral evidence consistent with his statement during the hearing which we accept as largely reliable.

The BDP appears to accept that the Appellant attended hospital by 11:30am on 24/5/21. It is acknowledged that the Appellant showed concern for DM and believed he was safe and being cared for in hospital in the meantime. The Appellant's reflections on the events and insight [112] are acknowledged by the Respondent. The criticism appears to be that the Appellant was asked by social services to attend earlier in the morning and should not have attended to the emergency at work.

We accept the Appellant's written and oral evidence, that he stayed with DM in hospital overnight until around 2am on 24 May 2021. This is corroborated by his text messages, sent after 02:16 on 24 May 2021 [p125] when he returned from the hospital (D Infirmary) having left DM in the early morning and the Appellant recontacting DM against from 6am to check on his welfare by which point DM had been moved to a different hospital (S Hospital):

We accept the evidence given by the Appellant that he spoke to Children’s Services by telephone somewhere around 08.30am on 24 May 2021 who asked him to come into the hospital to be with DM but we are satisfied that the Appellant responded and came shortly thereafter arriving at S[] Hospital around 11:30am. The Appellant therefore did respond to the request made at around 8.30am and go to relieve the support worker at 11.30am and had contacted DM in the mean time to check on him. The Appellant did not ‘fail to relieve the support worker and sit with DM in the hospital when requested to do so in the morning’ as the DBS found.

We are satisfied that the above errors of fact are material to this finding of relevant conduct. The Respondent's erroneous finding appears within the Structured Judgment Process ("SJP") [p222-232] and the Final Decision Letter. The mistakes of fact are material in the sense that the barring decision was partly based upon an erroneous finding.

The fact that the Appellant went first to work before going to DM on 24 May 2021 and arrived later than originally agreed or indicated when he left the hospital in the early hours and needed to be requested again before he arrived does not give rise to any failure to relieve the support worker when requested in the morning.

Further, we are satisfied that our fresh findings on this allegation would not amount to relevant conduct by the Appellant. DM was at not point endangered, harmed or put at risk of harm by the Appellant not attending the hospital earlier that morning between 8.30 and 11.30am to relieve the support worker – nor would there be a risk if the Appellant’s conduct were repeated in respect of another child.

DM's needs were being met during the Appellant's respite period away from hospital between 2 am and 11am on 24 May 2021. The detail can be found in the Appellant's statement [279-280, paras 12 to 17] as set out above. Arriving at 11.30am was not, as asserted on behalf of the Respondent, a "serious breach of his foster care duties" [p262, para 45.3]. The Appellant ensured that someone would be with DM whilst he dealt with an emergency at work. Exhibit AVS2 [p287] sets out the steps the Appellant took following DM's admission to hospital, including arranging for respite care to enable someone to sit with DM, speaking to his mother, his school, bringing items in from home, rescheduling DM's appointments and asking the social worker for updates on DM's assessments.

We also accept the Appellant’s emails sent on 25 May 2021 as being reliable that state that he offered to go in again to the hospital and had made himself available on 24 and 25 May 2021 to care for DM while he was in hospital.

For the vast majority of the time between 2am and 11am on 24 May 2021 the Appellant prioritised DM's needs over his own and responded to DM’s needs throughout this time period. We are satisfied that in addressing the narrow timeframe of the morning of 24 May 2021, the actions of the Appellant in arriving of the hospital at 11.30am were that of reasonably caring and foster parent genuinely concerned for the health and wellbeing of a very vulnerable young man.

The Appellant also gave detailed evidence about the impact of Covid on the level of support and guidance available to him during his fostering career, as well as the extra pressures of Covid self-isolation rules. We accept this evidence on this.

From the emails disclosed after the hearing, it can also be seen that the Appellant was grateful for the respite provided by social services and the fostering social worker while DM was in hospital (email sent by him at 10:02am on 25 May 2021). However, at 11.51 on 25 May 2021 DH informed the Appellant by email in reply that DM would not be returning to his care.

Despite deciding that there was a mistake of fact in the DBS’s specific finding, that is not to find that the Appellant’s actions were without any fault.

We do consider that there is merit to the general criticism that the Appellant failed to prioritise DM’s needs on 24 May 2021 (and that this was a rational conclusion based on facts established). While there are no specific findings of relevant conduct addressing this, the allegation was contained in the evidence relied upon by Children’s Services and the DBS. The allegation of a failure to prioritise DM’s needs was put to the Appellant in cross examination and relied upon by the DBS.

Fair criticisms can be made of the Appellant on the basis of these further allegations. For example, the following is not in dispute: the Appellant arrived at the hospital on 24 May 2021 later than anticipated or previously indicated or agreed when he left the hospital in the early hours of the morning; he had to be asked again to attend in the morning when he had not arrived by around 08.30am so that he had to be asked before he came; and that he went to work first thing that morning before seeing DM even if there was an emergency there he had to deal with.

The Appellant accepted in oral evidence that perhaps with hindsight he could have been more amenable and cooperated more with the social worker in their dealings but he was extremely tired following the return from holiday and had had little sleep. He also pointed to the fact that he had a bad relationship with one of the social workers having previously complained about them. We agree that he might have been more emollient and cooperative when dealing with social services in the way he accepts.

We also agree that, like the Appellant originally did in representations in 2022 (which he approved with a statement of truth), he might have done more to care for DM on 24 May 2021:

DM was a very vulnerable young man who had self harmed and this occurred in the context of his father recently taking his own life. We accept the evidence on behalf of the DBS that DM’s needs were paramount.

There are further matters for the DBS to consider in respect of the wider and connected allegations, given that we explain that we will be remitting the case for reconsideration.

The finding of relevant conduct does not require us to determine whether the Appellant failed to prioritise DM’s needs or care over the entire time period from 23-25 May 2021, and whether this caused harm or a risk of harm to DM, even if the Appellant did not fail to relieve DM's support worker on the morning of 24 May 2021.

The DBS have not produced direct, contemporaneous or any further evidence in support of the other allegations as to what occurred on 24 and 25 May 2021 - for example it is suggested that the Appellant initially refused to go into the hospital until 3/4pm on 24 May 2021. We have only received the Appellant’s direct and tested evidence which does not address this allegation and the emails which he has produced which do not mention it. In the absence of the DBS (or the Appellant) producing all contemporaneous emails or notes of any telephone conversations, and this not constituting a finding of relevant conduct made by the DBS, it is not necessary to determine and we are not able to find whether the Appellant said this.

As part of the wider allegation of the Appellant’s failure to prioritise DM’s needs, Children’s Services and the DBS relied on evidence of contained in the emails and LADO notes. The notes state that one of the reasons the social workers removed the DM from the Appellant as being Foster Carer on the morning of 25 May 2021 was because the Appellant was not prepared to be available 24/7 for DM after he was discharged from hospital (see [37] and [47] and the 03/06/21 & 01/07/21 LADO notes cited above). It is stated that the Appellant had indicated so in a ‘vast amount of emails’ on 24 May 2021 stating ‘it is not an emergency and he is in a safe place and did not need anyone sitting with him’ and ‘that he could not offer 24 / 7 support for the child once the child was discharged from hospital.’

Again, we have not been directed to any emails, contemporary or any other direct evidence by either party in which the Appellant stated that he was not prepared to go into the hospital to sit with him or look after DM on a 24/7 basis after discharge from hospital and whether if he had said this, this conduct would be relevant conduct or likely to endanger DM. This dispute centres on whether it was reasonable for the Appellant to be removed as a foster carer or would have endangered DM. As stated above, this is not the basis of any finding of relevant conduct but is a matter that the DBS may reconsider on remittal.

In summary, there are mistakes of fact in Finding 1 and based upon this finding the Appellant has not committed relevant conduct. Nonetheless there are further connected allegations that the DBS may consider on the case being remitted.