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The Appellant’s representations from 3 June 2021 and assessment of his reliability
The Appellant’s representations from 3 June 2021 and assessment of his reliability
While over three years have passed since the events in question, the Appellant’s factual case has been largely consistent. Indeed, the Appellant effectively set out his case in writing on Findings 1, 2 and 3 contemporaneously (and consistently) in his letter to Children’s Services of 3 June 2021 in which he disputed the removal of DM from his care:
‘I did not and still do not support these reasons for DM’s removal from this placement or his removal. Overall I find your letter to be without context and heavily biased towards post removal validation. There are several factual inaccuracies within your letter:
At no time did I refuse to transport DM to S[] Children’s Hospital. As there had been a disclosure of harm, and the CSW had been struggling to expedite CAMHS support, I took the decision to seek medical support for DM. I transported him to D[] A&E Paediatrics Department at approximately 8:30pm on Sunday 23rd May 2021. Following an initial emergency CAMHS assessment it was decided to admit him to the paediatrics ward. I requested the support of my Supervising Social Worker DH who offered to relieve me at D[] and arrived at around 2am. Once I had left for rest, It was decided to transfer DM to S[] Children’s hospital as the Paediatrics ward at D[] had been flooded and there were insufficient beds. I cannot speak to DH’s offer to transport DM however the hospital would also have had a duty of care to do so.
At no time did I refuse to remain with DM overnight. As per STAR DSH Assessment (Emergency CAMHS) Document, I had just returned from a Driving Holiday in Scotland, completing 1,390 miles in 4 days (approx. 8-10hrs of driving a day) and was severely fatigued. This respite was approved by social care. I had returned and collected DM around 6pm. Following taking him to D[] at 8:30pm and staying with him until 2am, I made a reasonable request for DH to support me as my Supervising Social Worker which she freely offered to do upon hearing the reasons and knowing we were simply awaiting a visit at that point. In addition, DM was now under professional medical NHS care and in a safe and appropriate environment. I did discuss with him if he wished for me to stay which he did not and offered to return with more creature comforts from home the next day.
At no point did I prioritise work commitments over any urgent needs DM had. Once taken to S[] Children’s Hospital he was admitted and it has been evidenced through the STAR DSH team that he then slept for most of the morning and afternoon. His medical needs were fully taken care of. He had a Professional Social Worker with him at all times and he had no emotional support needs. I was available on the telephone for any support required and then attended the hospital at approx. 11:30 that morning.
…
I have not been making DM wake up at 5:30am to accompany me to work. This is evidence in an email from myself to PS Social Worker dated 5/5/2021 at 18:36 to which you were cc’d in. As can be seen from the email I was requesting DM to be ready to leave the house at 6:30am, a very reasonable time for a teenager in secondary education who does not live within walking distance of their school. Should a person prepare the night before most people are able to awaken and leave the house within 10-15 minutes or so. I had taken into account NHS guidance of required sleep for a teenager for which DM was receiving the upper band. What DM chose to do before 6:30am has been left up to him to promote his growing independence. When queried on this subject by PS in my presence he supported his current ‘day to day routine’ confirming it within his wishes and feelings.
This is not an exhaustive response to each point in your letter, but highlights significant inaccuracies and out of context concerns I have come to expect over my care of DM.
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Contact
I received an email from PS dated 25th May 2021 at 12:09pm to which you were cc'd in stating “We would appreciate for you not to contact DM at this stage as he is not well and would have an impact on his well-being.”
Furthermore, in a recorded telephone conversation at around noon on Thursday 27th May 2021, when queried what negative impact your team thought my communication with DM would have, PS told me “You was asked, appreciated not to do that and you have decided to do so [contact DM]”.
When asking for contact with DM, PS went on to say “Well we have said at the moment, it would be ideally for him, because he needs to settle, we don't want this placement disrupting, we are not recommending any contact at this stage” and when asking how long this recommendation would last for, PS did not know and said it would have to be reviewed, advising “If it should be agreed [that you can have contact with him] you will be notified”.
When asking what power or authority this request not to contact came under, I was advised “it is a recommendation from social care, it is not a legal obligation, we are recommending and recommendations from social care should be taken seriously. If not, then it could have implications, I don’t know what implications”.
Point 9 of my conversation with Leah Keegan, a CAMHS mental health professional who assessed DM clearly asserts their positive feelings on contact between DM and myself. Additionally, I was made to feel both threatened and warned off by PS's insinuation of implications should I continue to contact DM to provide any kind of emotional support.
The STAR DSH Assessment makes clear DM's wishes to maintain a strong relationship with me going forward to which Leah will be issuing further evidence to in a letter which will be going out in the coming days. I will continue to abide by the no contact request until I receive notification otherwise however I do not agree with the reasons for the request and would echo the CAMHS mental health professionals position.’
We also note that the Appellant attended the hearing of the appeal, gave evidence and was cross examined. This is in contrast to the witnesses relied upon by the DBS who did not. Where there is a dispute of fact between AVS and the DBS’s witnesses, we note that their evidence mainly consisted of written records or correspondence and it was untested by cross examination so that potentially less weight is to be given to it. As is made apparent below, their reliability and credibility has been challenged by the Appellant to some degree.
Therefore, we have had to balance our assessment of the reliability and credibility of the DBS witnesses against our assessment of the Appellant’s reliability and credibility having heard him give oral evidence.
We repeat that we are satisfied that the Appellant has been, for the most part, consistent and given largely reliable representations and evidence throughout the DBS appeal process. We consider that he has provided the Tribunal and the Respondent with evidence to support and corroborate much of his account. This is borne out in the disclosure of further emails after the hearing. As such, the Tribunal considers the Appellant's evidence to be largely credible and reliable. Where we found have found his evidence to be unreliable in any regard we have explained our reasons below.
The Tribunal also had the benefit of hearing evidence from two witnesses, AF and SH, who gave character evidence on behalf of the Appellant. They also gave evidence of fact confirming that they witnessed the Appellant acting as a caring and dedicated foster parent, with DM's best interests at heart (see also testimonials [154-174]). The Tribunal considers that such evidence is relevant, to some degree, to both the Appellant's propensity to behave in the way alleged and to support his reliability as a witness of fact.
- 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