[2025] UKUT 167 (AAC)

The Appellant gave sworn evidence to the Upper Tribunal. In his evidence in chief, in answer to questions from Mr Wills, he confirmed the accuracy of his witness statement. He explained how he had come from Nigeria to work in the UK. He told us that he had a daughter aged 15 who lived in the Netherlands with his ex-partner, and he had two younger adopted children who lived with their grandmother in Nigeria. After completing his training in the UK, he had worked from 2017 as a nursing assistant in a psychiatric intensive care unit (PICU). He had not been the subject of any complaints from his colleagues or by service users.

The Appellant also confirmed that he had met Ellie online through a Christian dating platform. He had met her in 2021 but did not meet her foster children for several months after first meeting her. When asked to describe his relationship with Molly, he replied that he could not say it was good. He described her as being a bit withdrawn from the beginning, in contrast to Ellie’s foster son, who was very open and friendly with him from the outset. The Appellant said that he was trying to act as a father to them both and was doing his best to make Molly accept him in the way that her foster sibling did: “I tried to encourage her with school when she was moody. I would give her a hug or a peck on the cheek to cheer her up.” He said that he would hug her in the same way he would hug her sibling. When asked how Molly reacted, the Appellant said that sometimes she would be withdrawn but if she shrank back, then he wouldn’t press himself on her.

When Mr Wills asked him about the birthday party in June 2022, the Appellant confirmed that he had been drunk, but he only realised when he was shown a video later of how he had been behaving. He told us that he could not remember details of the incident in question: “Ellie called me... I don’t remember anything else.” In his witness statement, he said as follows: “During the party I saw Molly and I kissed her. This time I kissed her on the lips. I dispute that this was a passionate kiss or motivated by any sexual intention, but I do not remember the details because I felt drunk at the time.” Likewise, his witness statement concluded as follows: “I continue to deny that I kissed Molly in the same way as I would have kissed Ellie. I accept kissing her on the lips on this one occasion and that was wrong, but it was not a passionate kiss, and I did not have any sexual intention. My recollection of the detail is unclear because of the alcohol I had consumed.”

The Appellant confirmed to us that he had had two telephone conversations with Ellie after Molly had made her disclosure: “She called me and said Molly had told her… I said I was drunk. She asked me if I kissed her later. I said it’s possible.” In the second conversation Ellie had asked him if he had kissed Molly more than once: “I was dumbfounded. Ellie started shouting at me. I was in shock. She was yelling – she would not be able to foster. I felt really bad about things.” He denied ever having said to the police that he had kissed Molly in the same way as he would kiss his partner. The Appellant stated that he did not accept that he had kissed Molly in a sexual way – this was an interpretation put on the incident later by the police officers and the DBS.

We have already indicated that we had difficulties with some aspects of the Appellant’s oral evidence. This became more evident when the Appellant was cross-examined by Ms Hartley. In answer to her very first question, the Appellant said that he did not know where in the house the incident took place. He said that he did not have a very clear recollection but he conceded he had kissed Molly on the mouth. Ms Hartley then asked him about the telephone conversations with Ellie after Molly’s disclosure. Ms Hartley asked whether he accepted that on the first call he had not answered Ellie’s question right away: “I accept I didn’t respond immediately … it was a shocking thing to hear.” He denied that the real reason he had not replied immediately was that he was shocked the incident had come out.

In response to Ms Hartley’s direct question – “why did you kiss Molly on the lips with your mouth open?” – the Appellant sought to deflect the question by replying that he had no intention of anything sexual. When asked whether it was appropriate to kiss an 11- or 12-year-old on the mouth with one’s mouth open, the Appellant answered “It’s not something I would ordinarily want to do. I’m not happy with the suggestion that it’s sexual.” He accepted that he would not want someone else to kiss his own daughter like that. In answer to a direct question, the Appellant expressly denied having put his tongue in Molly’s mouth. However, given his hazy recollection he had some difficulty in explaining this categorical denial: “I would not like to think I would do that. It’s not possible. I would not kiss her in the same way as kissing Ellie.”