[2025] UKUT 270 (AAC)

We find that it could not be proven on the balance of probabilities that the appellant did in fact insert her fingers into JA’s rectum. No one witnessed this and there are credible explanations by the appellant to prove she did not in fact do this.

She saw JA three times that day and twice gave her personal care. She explained that the house was small and so everything that was said would be heard by all those in the house. There was no evidence to the contrary from the DBS. It was in the evening visit that she is said to have tried to relieve JA’s constipation by putting her fingers into JA’s rectum. JA said in a telephone call the next morning from the agency that when the appellant did this she said “no no”.

We do not find on the balance of probabilities that the allegation is made out for a number of reasons. MJ did not hear JA’s protestations despite the fact that everything could be heard in the small house by all those there; JA did not tell MJ what had happened that evening when she came into the room just after the incident was said to have occurred. Counsel for the DBS submitted that this was because JA would not do this in front of the appellant but there is no evidence that she was scared of the appellant and no evidence about why she would not do this.

Counsel for the DBS said it is not likely that JA got this wrong. The appellant gave us two examples of when JA was confused in June 2023, one where she said she had not been visited and one where she tried to walk when she is unable to do this unassisted set out in para 17 above. We find that the alternative explanation that JA was sore because of the constipation and passing a hard stool more credible. It is highly likely that she heard the conversation about the oil and was mistaken. She asked twice that day for different interventions that would have meant that something was inserted in her rectum, the suppositories and then a stick. Given her age, her distress, pain and the events of the day and the evidence of the appellant we find it is more likely than not that she remembered wrongly what had happened.

The appellant gave a credible account of what did happen when she was providing personal care in the evening. She said when JA stood up from the commode there was a stool in her bottom. She wiped this off and then applied the cream. She had been constipated for some time and was in pain so it is likely that passing that stool would have caused pain. Counsel for the appellant questioned her about whether the pain of a hard stool would still be felt the next morning. There was no evidence that this would not be the case.

We found the appellant a credible witness. Counsel for the DBS said that the appellant did not answer simple questions. We disagree. She explained what happened clearly and consistently and she has done this since the allegation was made. She came across as compassionate and concerned about JA. She was clear she did not do this and had not done the procedure before. She explained that in Russia oil was used to soften skin but when she was told not to use it she did not. She has maintained this throughout. She says she never intended to insert a finger into JA’s rectum – just use some oil to soften the skin.

We have not heard from the other carers who made statements as they were not called by the DBS. However, no one saw the alleged act. Counsel said these carers had no animosity towards the appellant and would not have made this up. We agree. HG believed that the appellant had looked for oil to allow her to insert her fingers into JA’s rectum. We believe the appellant that she did not know the word insert in English at that time and this could have easily been a misunderstanding due to language differences. We do not doubt that JA said the incident happened to HG and KG. But we find in light of the appellant’s credible evidence that she did not do this, the evidence of JA’s distress, her pain and the other occasions when she became confused that on the balance of probabilities the allegation is not proved.