[2025] UKUT 117 (AAC)

Relevant conduct

We deal first with the question of whether it was irrational for DBS to conclude that the appellant had engaged in conduct which, if repeated against a vulnerable adult, would endanger or be likely to endanger them.

We remind ourselves that irrationality is a high threshold and that we should not conclude that a decision is irrational unless it is one that no reasonable decision maker could have reached on the basis of the evidence before it. However, we are satisfied that high threshold is met in this case.

We accept that in principle a person’s neglect of their own child or children could, if that conduct were repeated in relation to a vulnerable adult, constitute relevant conduct in relation to a vulnerable adult for the purposes of paragraph 10(1)(b) of Schedule 3. However, care must be taken in identifying what the conduct is. As we shall explain, the fact that a person has had a child removed from their care in Family Court proceedings does not in and of itself mean that relevant conduct has occurred for the purposes of Schedule 3 to the SVGA 2006.

Regulation 10(1)(b) provides that, for the purposes of paragraph 9, “relevant conduct is … conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him”. “Conduct” is not further defined in the legislation, but it is an ordinary English word and it ought to need no definition from us. “Conduct” refers to behaviour or actions. It may be distinguished from other human features such as personality traits, learning difficulties, and medical conditions. In this case, for example, DBS referred in its final decision letter to the appellant’s “poor problem solving and coping skills”. These are not in themselves conduct, they are personality traits or attributes. A person’s “conduct” is also not to be equated with other people’s concerns or opinions about the risk posed by that person, such as (in this case) the views of social workers or (even) the Family Court. Nor is a person’s conduct to be equated with what may have been done to that person in the past (by their own parents or abusive partners) that might render them more or less likely to conduct themselves inappropriately towards others in future.

“Conduct” is something that a person has actually done. Those other factors (personality traits, learning difficulties, medical conditions, the view of the Family Court etc) may be relevant to the degree of risk a person poses, so they are not irrelevant factors, but the first ‘gateway’ to a barring decision is that there has to have been relevant conduct. DBS is not, or should not be, in the business of barring someone simply on the basis of personality assessment.

We have considered DBS’s final decision letter carefully, and the evidence on which it was based. We find very little in it that actually describes “conduct” by the appellant.

DBS’s primary ‘findings’ on which the decision was based were that the appellant had her two children removed from her care. However, that was not conduct by the appellant, that was the result of orders by the Family Court. DBS does not know anything specific about why those orders were made by the Family Court because it has not obtained copies of the orders, or the reasons for which they were made, such as a transcript of the judgments. DBS does not have any of the evidence that was before the court when Child A was removed from the appellant’s care in 2015. Nor, apart from the two documents we have detailed above, does it have any of the evidence as to what the circumstances were at the point that Child B was born or any explanation why the situation moved from the local authority considering that Child B needed to be subject to a Child Protection Plan to the Family Court deciding that Child B needed to be removed from the care of the appellant at birth.

In relation to the removal of Child A, DBS states that Child A was removed “due to the risk of physical and emotional harm and your inability to protect and prioritise your child’s needs above your own”. However, that does not identify any specific “conduct” by the appellant. It is a high level, generic statement which is best described as an expression of opinion by social workers about the effects of conduct by the appellant; what the appellant’s conduct was is largely not described in the documents. So far as can be divined, it appears from the history in the Section 47 assessment that social workers would have been prepared to allow the appellant to care for Child A if she had agreed to leave her abusive partner and had been willing to care for Child A on her own. In other words, on the basis of the evidence we have, it appears the local authority did not consider that the appellant by herself posed any significant risk to Child A. Her “conduct” that the local authority considered posed a risk to Child A appears from the documents to consist of her not leaving her abusive partner and keeping Child A with her in a home with an abusive partner. We note that the evidence does not show how old Child A was at the time, but the appellant’s own age and the tenor of the documents suggests that Child A was still ‘a baby’.

As to the evidence in relation to the appellant’s “conduct” in relation to Child B in 2022, this is even thinner. At the time that the Section 47 assessment was written, Child B had not been born. There were no concerns at all about the appellant’s care for her unborn child. She was attending all medical appointments and making appropriate preparations for the birth of the child. She was single and living in appropriate accommodation. The conclusion of the Section 47 assessment was that a Child Protection Plan was required for Child B. This is unsurprising given the history with Child A, but a Child Protection Plan is, as the name suggests, just a plan that a local authority makes, in conjunction with the child, their family and other professionals as appropriate, as to how to safeguard a child. It does not mean a child is going to be removed from their parent(s) and it does not require a Court order.

We do not know what happened at the time of Child B’s birth to lead social workers to conclude that an application to the Family Court for an Interim Care Order was required, or why the Family Court decided to make that order and place Child B with a foster family. We see only from the social worker report of 18 January 2022 that the local authority had become “concerned enough for [Child B’s] safety whilst in the care of [his mother” that it decided to apply to Court for an Interim Care Order, and that the Court granted that Order. The nature of the local authority’s concerns are not identified and we do not have the Court’s reasons for its Order. No further “conduct” by the appellant is described in the evidence. Child B appears to have been taken into foster care immediately following birth on 6 January 2022, so there was very little opportunity indeed for the appellant to demonstrate care for Child B.

Mr Serr referred in argument to the suggestion (and admission by the appellant) of past substance and alcohol misuse, but the evidence indicates that was not a current problem at the time of the Section 47 assessment (although there was to be further testing, the results of which we do not have). DBS in its final decision letter proceeded on the basis that there were no such concerns. We consider it was right to do so.

It follows that the only evidence of “conduct” by the appellant that we and DBS have is that she has (at least in the past) remained in relationships with abusive men and, in 2015/2016, opted to remain in an abusive relationship because she did not feel she could care for a baby (Child A) on her own. This decision by the appellant is what social workers appear to have described as an “inability to protect and prioritise your child’s needs above your own". To the extent that DBS in its decision may have regarded other matters as being “conduct” (such as the appellant’s poor problem-solving and coping skills, the making of the orders by the Family Court, or the opinions of social workers about parenting abilities), these could be characterised as mistakes of fact or law and could have formed the basis for successful grounds of appeal in their own right. However, we focus on the first identified ground of appeal, which is whether DBS could rationally regard the appellant’s conduct in remaining in an abusive relationship in 2015/2016 as relevant conduct as defined in paragraph 10(1)(b) of Schedule 3 to the SVGA 2006.

We do not see how anyone could rationally conclude that her conduct in this respect could be repeated in relation to a vulnerable adult. While we accept DBS’s argument that a vulnerable adult may have many of the characteristics of a child (even, of a baby), the risk to Child A arose from Child A being the appellant’s own baby for whom she was responsible 24 hours a day and who was living with her and her abusive partner. The risks to Child A were in our judgment specific to the family relationship and living arrangements. A vulnerable adult would not have that family relationship or living arrangement with the appellant. The appellant does not have a vulnerable adult in her family for whom she is responsible. The conduct is not therefore in our judgment conduct that is capable of being repeated by the appellant against or in relation to a vulnerable adult. We conclude that it was irrational for DBS to regard it as being relevant conduct for the purposes of paragraph 9(3)(a) of Schedule 3 to the SVGA 2006.