MM v Disclosure & Barring Service [2024] UKUT 401 (AAC)

[2024] UKUT 401 (AAC)
IN THE UPPER TRIBUNAL
Between
MMAppellant
On appeal from a decision of the Disclosure & Barring Service
- v –
Between
Disclosure & Barring ServiceRespondentBefore: Upper Tribunal Judge MitchellUpper Tribunal Member HeggieUpper Tribunal Member TurnerHearing: 10 January 2024Venue: Hearing conducted remotely using Cloud Video PlatformAppellant: Libby Anderson, of counsel, instructed by Olliers SolicitorsRespondent: Dominic Bayne, of counsel, instructed by DBS Legal DepartmentDECISIONDate 2024-12-03
[1]The Appellant’s daughter, whom we refer to as ‘D in these reasons’, was born in 2003. D’s parents separated in 2009 and subsequently divorced. D remained living with her mother, the Appellant. Both parties agree that in 2014, when D was aged about 11, her behaviour deteriorated. In June or July 2015, D left her mother’s home and lived with her father for 17 months before returning to reside with her mother. In April 2017, a few weeks after returning to live with her mother, D was admitted, on a voluntary basis, to a secure mental health facility. D resisted returning to live with her mother and was instead placed in foster care. This was a voluntary placement, under section 20 of the Children Act 1989, rather than under a care order. D remained in foster care and did not return to either her mother’s or father’s care.

D's allegation that she was sexually abused by her mother (the Appellant)

[2]A Children’s Services ‘Record of Meeting’ document dated 5 April 2019 reported “[D] had been acting quite differently with…(foster carer) indicating that she wanted to disclose but was finding it difficult hard how to actually say what happened…”.[3]When D was living in foster care, she disclosed to her foster carer that she had been sexually abused by her mother when aged 11 and/or 12. The circumstances of the disclosure were described in a police witness statement given by the foster carer on 13 February 2020, the relevant parts of which are reproduced in the Annex to these reasons. Briefly, the foster carer described D’s aversion to physical contact, how her behaviour and well-being would deteriorate following indirect contact with her mother, D’s very gradual disclosure to the foster carer that something ‘had happened’ to her when living with her mother and, finally, D’s written description (recorded on her iPad) of sexual abuse by her mother when aged 11/12.[4]On 7 May 2019, police officers visited D at her foster placement. D did not wish to discuss her allegations in any detail but reportedly confirmed her written iPad description of what happened. The police report of this visit is set out in the Annex to these reasons.[5]On 23 or 24 May 2019, D’s foster carer sent an email which reported details of a discussion with D on the evening before an ABE (Achieving Best Evidence) police interview. This recounted D’s anxiety about the interview and D’s description of when she knew that what her mother did was wrong. The email is reproduced in the Annex to these reasons.[6]The first of two ABE interviews with D took place on 24 May 2019, in the presence of her social worker. The relevant parts of the interview transcript are set out in the Annex to these reasons but, briefly, D was very reluctant to speak but did confirm that the ‘incidents’ involved her mother, took place in a bathroom and that her mother dried her after D took a bath/shower. The interview ended once D became upset. It was clear that D did not wish to answer questions about the detail of what happened in the bathroom or anywhere else in the home that she shared with her mother. Given the very limited information provided by D during this interview, police officers decided to arrange a second ABE interview at which D would be assisted by a registered intermediary.[7]Officials in the local Children’s Services Department spoke to one of D’s brothers in the light of D’s allegations. A note of the discussion was included in police records dated 24 May 2019:
“…[Brother] spoke about [D] growing up and that from the age of about 11 she started to be quite difficult at home and to have a difficult relationship with their mother. [Brother] was not negative about [D] and said that he felt that something significant had happened for [D] but that he was unaware what this was. [D] began to present as quite angry towards their mother although she continued to have a positive relationship with their father…[Brother] described his mother as the perfect mum and reported no concerns at home…”.”
[8]On 4 June 2019, the Appellant was interviewed by the police under caution in the presence of her solicitor. The DBS case papers supplied to the Upper Tribunal do not include a transcript of the interview, but they do include a summary of the interview within police records, which is reproduced in the Annex to these reasons. Briefly, the Appellant denied ever having sexually assaulted D, that she ceased being involved in her children’s bathing at age 8/9, D may have made up the allegations because the Appellant was the only person never to have rejected D and D knew that the Appellant would always love and support her no matter what.[9]On 16 June 2019, police officers spoke to the Appellant’s ex-husband (D’s father). The police note of the discussion included: “…[Father] has described how he was shocked to hear of how [D] had implicated her mother in a sexual offence matter and described he has not at any time witnessed anything that he thinks will be pertinent to the investigation. He does however, describe how he will be able to “give lots of insight into manipulative behaviour etc…”.[10]On 3 October 2019, police officers conducted a second ABE interview with D. The interview was also attended by D’s social worker and a person described by the interview transcript as an ‘appropriate adult’ but who appears in fact to have been a registered intermediary whose role was to assist D to communicate with interviewing officers. Communication aids were used, a body parts grid and ‘gingerbread doll’, and D listened to music through a single earphone during the interview. The interview transcript states that the interview lasted for 90 minutes. The transcript of the second interview is reproduced in the Annex to these reasons but, briefly: - D said the incidents all occurred while she was in Primary School; - D said that, in the bathroom, the Appellant first dried her top half with a towel. D could not verbalise which body parts were rubbed but indicated her breasts on the body part word grid; - D could not verbalise which body part on the bottom half of her body was rubbed by the Appellant using a towel but indicated ‘vagina’ on the body part grid and gingerbread doll. Using the doll, D indicated that her mother dried between her legs and the front of her vagina; - D stated that the Appellant used both a towel and ‘fingers’ although she initially would not answer the police officer’s questions about what the Appellant did with her fingers; - Following a short break in the interview, which was requested by D, she answered ‘inside’ when asked whether her mother’s fingers touched outside or inside her body or somewhere else; - D said these things happened in the bathroom more than several times; - When asked whether these things happened anywhere apart from the bathroom, D said ‘the living room’. When asked how often, D answered ‘loads’; - When asked if the events in the living room were the same or different than in the bathroom, D answered ‘same’. She nodded her head when asked if her mother touched her vagina in the living room. When asked where on her vagina she was touched, D answered ‘inside’; - D stated that the living room incidents took place under a blanket on a sofa on which she sat with the Appellant; - When asked if she could recall the longest gap between living room incidents, D answered a week.[11]The Appellant’s ex-husband gave a police witness statement on 5 October 2019. The statement said nothing of direct relevance to D’s allegations of sexual abuse but did make allegations of controlling and manipulative behaviour against the Appellant. Relevant parts of the statement are reproduced in the Annex to these reasons.[12]On 15 May 2020, the police reviewed the evidence related to D’s allegations. The review report noted:
“based on what is known at this stage we have a one on one allegation, the complainant…may not even be willing to attend court.…school records show the complainant was troubled girl, however no disclosures were made. The key evidence is…where the complainant made an entry on her iPad. She mentions what happened this is her first disclosure to Foster Care as she was unable to verbalise what happened. …If no other information/evidence is secured I still see this as a one on one allegation which would not need the threshold of taking to CPS.”
[13]On 8 June 2020 the police decided that no further action would be taken in relation to D’s allegations. Accordingly, the Appellant was not charged with any criminal offence.

DBS’ decision-making

[14]On 8 June 2021, the DBS wrote to the Appellant to inform her that they were minded to include her on the list of persons barred from working with children and the separate list of persons barred from working with vulnerable adults. The DBS’ proposal was based on provisional findings that the Appellant sexually abused her daughter, D, and “showed manipulative and controlling behaviour” towards her. The Appellant was invited to supply written representations, which she did.[15]The Appellant’s written representations to the DBS began with an extensive account of her relationship with her ex-husband, her perception of her daughter’s mental health problems and her ex-husband’s unwillingness to provide effective support. The representations went on to assert that, when D returned to live with her after spending 17 months with her father, “life started to settle down”. She and the, by now, 14-year-old D slept in the same bed “for comfort”. D’s mental health was poor, and she was admitted to hospital. When D was ready for discharge, her father refused to take her in, and the Appellant believed that D’s feeling of abandonment led her to attempt suicide. The Appellant’s attempts to establish an effective relationship with the foster carer with whom D was placed were simply those of a concerned parent. It was D’s foster carer who interpreted the ‘s’ that D wrote on her iPad as a reference to sexual assault. D’s first police interview, in which she largely refused to speak, was conducted oppressively. Questions were repeated in an attempt to coerce a response. D’s health had deteriorated in foster care. If the Appellant was at fault, foster care should have led to an improvement. And no one ever investigated what happened during the 17 months that D lived with her father.[16]In responding to the sexual abuse allegation, the Appellant’s representations criticised various aspects of the police investigation, detailing its effect on her welfare and finances, but without directly addressing the allegations themselves save that they were ‘categorically denied’ and noting that they were made only after years of failures by public bodies to provide D with the help she needed.[17]The Appellant’s representations were accompanied by a number of references. References were provided by: the Appellant’s local MP; a worker at a charity established by the Appellant; the Appellant’s psychotherapist; the Appellant’s brother; the Appellant’s sister; a fellow charity volunteer; the Appellant’s two sons; a counsellor at a charity established by the Appellant; a longstanding friend (retired teacher); a fellow member of a local business network; and a former employer.[18]The Appellant’s referees all painted a positive, in fact very positive, picture of her character. While many referees expressed the view that the Appellant posed no risk to either children or vulnerable adults, none directly expressed a view on the likelihood of the Appellant having sexually abused her daughter. The Appellant’s written representation to the DBS assert that the referees were aware of the “incident giving rise to the allegation” but none of the references expressly mention an allegation of sexual abuse although the reference provided by a charity worker recounts having read a text message from D making allegations against the Appellant, and the brother’s reference stated that he was “aware of allegations that [D] has made” but his view was that allegations of “inappropriate behaviour” were without foundation.[19]The DBS’ final decision, taken on 10 August 2021, was to include the Appellant on the list of persons barred from working with children and the list of persons barred from working with vulnerable adults.[20]The DBS’ principal finding of fact was that, on dates prior to 1 April 2019, the Appellant sexually assaulted her daughter D by touching her breasts and vagina and that this occurred “on multiple occasions and different locations” when D was aged 11 or younger. The DBS also found that, on dates prior to 3 May 2019, the Appellant “showed manipulative and controlling behaviour” towards D by attempting to control how foster carers cared for her, seeking weekly updates while D was in care, stating that D has mental health problems despite knowing “that this has not been diagnosed”, chasing D at school and through a shopping centre, and texting D's friends, having obtained their contact numbers from D’s phone bill, and questioning them about D.[21]DBS’ decision letter explained their evaluation of the evidence:
“Your representations have challenged the findings made by us. We have considered them alongside the information we already hold. Upon assessing your representations against the information that we already held, it was established that [D], your ex-husband and the foster parents were deemed to be more credible. Your explanation that the accusations of sexual assault had been fabricated between your ex-husband do not appear to be credible as these accusations were made whilst [D] was in foster care, also you stated within your representations that [D] was prompted by the foster parents to say that the allegations were sexual, and that the police used oppressive techniques to gain the complaint from [D]. As [D] gave a detailed account of the allegations against you, describing, when, where and how the sexual assaults took place, she was deemed to be credible, and this level of detail, consistently recalled appears unlikely to have been fabricated. It is also acknowledged that you challenged the DBS' secondary findings…The DBS have no reason to question the credibility of [foster carer], and she appears to have been credible in her recollection of the events. The DBS also assessed your representations of you stating that [D] had mental health problems…within the information received by the DBS it is stated that [D] did not have mental health concerns, and that her behaviour was likely due to her home life, due to this information being received from professional organisations, your explanation has not been deemed to be credible in this instance. Also whilst assessing the context that you gave in relation to contacting [D’s] friends by using her phone bill and chasing her through town and her school awards ceremony, these behaviours led to complaints by the parents of other children and have been reported by your ex-husband, who has previously been credible in his recollection and the DBS do not hold any information to suggest why he would fabricate these incidents.”
[22]The DBS found that the Appellant had “a sexual interest in pre-pubescent females” and “demonstrated a callousness / lack of empathy on various occasions and in various ways towards your daughter”. The Appellant’s supporting references “do not alter the DBS’s findings and they do not reduce our initial concerns”.[23]The Appellant’s inclusion on the children’s barred list was probably, it seems to us, inevitable in the light of the DBS’ findings. However, the DBS also included her on the vulnerable adults’ barred list. Their rationale for doing so was as follows:
“It is acknowledged that these incidents do not appear to have involved vulnerable adults and that this behaviour did not occur in regulated activity, but you appear to have demonstrated that you are willing to transgress legal boundaries to satisfy your own sexual needs regardless of the harm that this causes to those in your care. If you were to demonstrate this type of behaviour whilst caring for vulnerable adults, then this is likely to endanger them, as such we are also satisfied that it is appropriate to include you in the Adults’ Barred List.”

Grounds of appeal

[24]Following a hearing before Upper Tribunal Judge Hemingway, the Appellant was granted permission to appeal against DBS’ barring decisions. The judge’s permission determination read as follows:
“3. I grant permission to appeal on the basis that the DBS arguably made mistakes of fact with respect to all of the factual findings it relied upon…As to that, I take account of the fact that the appellant has (at least on the face of it) previous good character; that she has been able to provide impressive references which might have some relevance to the question of her credibility; that notwithstanding the nature of the sexual assault allegations against her no criminal proceedings have been pursued (though I appreciate of course that the standard of proof in criminal cases is significantly higher than it is in cases such as this) and that there is, at least on one view, a lack of corroborative evidence with respect to those allegations. I am satisfied, in light of all of that and having heard oral argument, that the appellant has a realistic prospect of demonstrating that such errors of fact have been made. 4. As to proportionality, on the assumption that the DBS did not make a mistake of fact with respect to its findings concerning the sexual assaults, I see no realistic prospect of the appellant being able to demonstrate that the decision to include her in the Children’s Barred List was disproportionate. The seriousness of the conduct (if it did take place) and the consequent risk to female children very comfortably underpins that decision. I refuse permission with respect to that particular argument. 5. As to placement on the Adults Barred List and its proportionality or rationality, even if there has been no mistake of fact, I consider it to be arguable that the DBS erred in the manner suggested. In particular, with respect to rationality, the findings related to sexual assaults said to have taken place when the relevant child was eleven years old or younger. It is unclear how any sexual interest in female children of such a young age will translate into a risk to vulnerable adults. Further, the justification for placement on the Adults Barred List as contained in the decision letter is vague and relies only upon an alleged willingness “to transgress legal boundaries to satisfy your own sexual needs”
. Whilst, if the factual findings have been soundly made, the appellant has demonstrated such a willingness, there does not appear to be any obvious risk if her sexual interest lies in pre-pubescent girls. I am satisfied, therefore, that with respect to the Adults Barred List, the appellant has reasonable prospects of showing that the decision to include her in that list is irrational or disproportionate.”

Additional documentary evidence

[25]Following the grant of permission to appeal, the Appellant’s solicitor supplied 59 pages of evidence in the form of correspondence between the Appellant and D’s school and various reports and plans for D produced by the local Children’s Services Department. This evidence was generated from 2015 to 2017 that is before D made her allegations of sexual abuse. The solicitor did not provide submissions on how this evidence was said to support the Appellant’s case. We note that the Children’s Services evidence demonstrates D’s consistent refusal to have contact with, or return to live with her mother the Appellant, but that the Appellant, whilst retaining a close interest in arrangements for her daughter’s care, did not place any pressure on D to change her mind about contact or living arrangements.[26]Subsequently, a further 352 pages of evidence were supplied by the Appellant’s solicitors. This evidence was in the form of correspondence, reviews, plans and reports related to D’s education, health and care arrangements. This evidence largely told the same story as the 59 pages of evidence previously supplied although we note that the report of a detailed Children’s Services assessment of D stated:
“There remain gaps in our understanding and questions about the extent of [D’s] behaviours as a result of the above. There is a feeling that there is more that has impacted on [D] that we have not identified as of yet.”

Legal framework

[27]A person included in a barred list maintained under the Safeguarding Vulnerable Groups Act 2006 (“2006 Act”) may appeal to the Upper Tribunal against the DBS’ barring decision (section 4(1) of the 2006 Act). An appeal may only be made on the grounds that the DBS made a mistake on any point of law, or in any finding of fact on which the barring decision was based (section 4(2)). Section 4(3) provides that “the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact”. In other words, there is no right of appeal against the DBS’ decision that it is appropriate for a person to be included in a barred list.[28]The DBS errs in law if it does not give sufficient reasons for a barring decision. The required standard of reasoning was addressed by the Court of Appeal in Khakh v Independent Safeguarding Authority [2012] EWCA Civ as follows:
"23…. I would accept that the ISA [now DBS] must give sufficient reasons properly to enable the individual to pursue the right of appeal. This means that it must notify the barred person of the basic findings of fact on which its decision is based, and a short recitation of the reasons why it chose to maintain the person on the list notwithstanding the representations. But the ISA is not a court of law. It does not have to engage with every issue raised by the applicant; it is enough that intelligible reasons are stated sufficient to enable the applicant to know why his representations were to no avail."
[29]In assessing the adequacy of DBS’ reasons, its decision letter must be “read fairly and as a whole” (Disclosure & Barring Service v AB [2021] EWCA Civ 1575 at [46]).[30]While the 2006 Act provides for no right of appeal against a DBS decision that it is appropriate to include a person in a barred list, that does not exclude a right of appeal on the ground that barring a particular person is disproportionate. However, in assessing proportionality the Upper Tribunal must accord appropriate weight to the decision of the barring authority “as the body particularly equipped to make safeguarding decisions” (B v Independent Safeguarding Authority [2013] 1 WLR 308).[31]In AB the Court of Appeal held, at [43], that, absent a legal or factual flaw in a barring decision, “the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list…is a matter for the DBS”. This was echoed in the Court of Appeal’s decision in Disclosure & Barring Service v JHB [2023] EWCA Civ 982 where it said, “there is a distinction between the assessment of the evidential material on which a finding of fact is or might be based, and an assessment or value judgment, such as an assessment of risk, which is based on findings of fact which have already been made”. A disagreement about the evaluation of the evidence is not an error of fact, and if the DBS makes a finding of fact that was open to it on the balance of probabilities it does not make a mistake of fact (JHB at [93]).[32]Regarding the credibility of evidence given in proceedings before the Upper Tribunal (typically evidence given by the barred person themself), in Disclosure & Barring ServicevRI [2024] EWCA Civ 95 the Court of Appeal, at [29], approved the following formulation:
"The Upper Tribunal is entitled to make a finding that an appellant's denial of wrongdoing is credible, such that it is a mistake of fact to find that she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which the DBS based its decision. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal)."
[33]In AB, the Court of Appeal ruled, at [55], in relation to the Upper Tribunal’s oversight of DBS fact-finding, that the Upper Tribunal “will need to distinguish carefully a finding of fact from value judgements or evaluations of the relevance or weight to be given to the fact in assessing appropriateness”. A conclusion that a certain matter is likely to reduce the risk of inappropriate conduct is a value judgement rather than a finding of fact.[34]In PF v DBS [2020] UKUT 256 (AAC) a Presidential Panel of the Upper Tribunal said, at [43], that, on appeal, the Upper Tribunal could hear evidence that was not before the DBS. If the Upper Tribunal heard no new evidence, the DBS’ decision “might well be the starting point” [49]. If the Upper Tribunal heard significant new evidence, the DBS’ evaluation of the evidence would probably be ‘overtaken’, so that “the only appropriate approach for the UT would be to start afresh” [49]. PF was applied by the Court of Appeal in JHB in which it held, at [90] that, in a case where the Upper Tribunal heard “very limited evidence” so that the DBS’ decision was the ‘starting point’, the Tribunal was not free to make its own assessment of the written evidence unless and until it found an error of fact or law.[35]In JHB, the Court of Appeal said: “95…the UT understood the DBS's reliance on paragraph 2 of Volpi v Volpi [[2022] EWCA Civ 464] as a submission that, in order to show that there has been 'a mistake of fact' it is necessary to show that there was no evidence to support that finding, or that it was irrational. I agree with the UT that if that were the position, section 4(2)(b) would be redundant. But, in my judgment, that is not the position on an appeal such as this, for two reasons. First, a finding may be 'wrong' for this purpose, even if there was some evidence to support it, or it was not irrational, as the reasoning in Indrakumar and Subesh shows. Second, a finding may also be 'wrong' for the purposes of section 4(2)(b) if it is a finding about which the UT has heard evidence which was not before the DBS, and that new evidence shows that a finding by the DBS was wrong, as the UT itself explained in PF (see paragraphs 63-65, above)…”.[36]In RI, the Court of Appeal was of the view that the ratio of JHB was “difficult to discern’. Bean LJ said:
“33…I venture to suggest that it [JHB] may be authority for the proposition that if the UT has exactly the same material before it as was before the DBS, then the tribunal should not overturn the findings of the DBS unless they were irrational or there was simply no evidence to justify the decision. The same rule may apply where, as in the JHB case itself, oral evidence is given but not on matters relevant to the decision to place the appellant on one or both of the Lists.”
[37]Within Part 1 of Schedule 3 to the 2006 Act, paragraph 3 requires the DBS, once it has given an individual the opportunity to make representations against barring, to include the individual on the children’s barred list if satisfied that the individual has engaged in “relevant conduct”, has reason to believe that the individual might in the future be engaged in regulated activity relating to children and is satisfied that it is appropriate to include the individual in the list. The definition of “relevant conduct” in paragraph 4 of Schedule 3 includes conduct which endangers a child and “conduct of a sexual nature involving a child, if it appears to DBS that the conduct is inappropriate”.[38]Part 2 of Schedule to the 2006 Act enacts, in relation to the vulnerable adults’ barred list, similar barring provisions to those just described in relation to the children’s barred list. Part 2’s definition of “relevant conduct” includes “conduct which, if repeated against…a vulnerable adult, would endanger that adult or be likely to endanger him” (paragraph 10(b)).

Evidence given at the hearing

[39]The Appellant gave extensive oral evidence at the hearing of her appeal before the Upper Tribunal.

Examination-in-chief

[40]The Appellant’s examination-in-chief began with her adoption of her written witness statement and her confirmation that it remained true and accurate. Apart from that, the examination-in-chief only involved the Appellant giving evidence that, since she prepared her written statement, she had had no contact with D.

The Appellant’s witness statement

[41]The Appellant’s written witness statement, as adopted at the hearing: -. states that she founded a charity providing peer support to parents and carers whose children “are affected by mental heath issues”. She adds that her work includes no direct involvement with children; -. recounts the Appellant’s long history of work in the charitable and caring sectors; -. describes the breakdown of her marriage to D’s father stating that, following their breakup, her three children reported his physical abuse during overnight stays and that he tried to drive over her in a vehicle. However, the Appellant decided not to involve the police to “spare the children from further emotional damage”; -. states that, when D was 11, she reported being shouted at when staying with her father and that she wished to return home. At this time, “[D’s] behaviour became noticeably different. She became violent, angry and abusive towards both myself and her brothers”. D told the Appellant that she felt her brothers were more loved than her; -. describes how, having sought assistance from her local authority, D was advised that she could use restraining techniques and “I was shown how to apply appropriate restraint techniques to cause minimal harm to [D]”; -. states that D’s behaviour deteriorated further in 2015, and an urgent referral was made to CAMHS, but D’s father refused to become involved and “left me to deal with [D’s] extreme and volatile behaviour”. At this time, D refused to stay with her father and the Appellant had to plead with him not to bring family proceedings (presumably contact proceedings) because of the trauma that would cause D; -. records that, in 2016, following an argument D left the Appellant’s home and went to live with her father for 17 months; -. states that the allegation of sexual abuse is “categorically denied” and describes the impact on the Appellant of D’s allegations. The Appellant’s statement does not elaborate on her denial save to state that “despite the allegations made against me, I would happily have my daughter back living with me at home and would provide her with any and all support she required”; -. disputes the findings relied on by the DBS in concluding that her behaviour was manipulative and controlling. We have of course read the entire statement but there is no need to describe these parts of it here.

Appellant’s cross-examination

[42]During cross-examination by the DBS’ counsel, Mr Baynes, the Appellant said: -. at no point did she admit throwing a book at D, although she accepted that D was hit by a book thrown by her; -. the deterioration in D’s behaviour around 2014 was not witnessed by her ex-husband because it only manifested in the Appellant’s home; -. when D reached puberty in 2014/15 she ‘shut down’ and became very angry; -. she did not think it was unusual that, upon D returning to live with her after spending 17 months with her father, they slept in the same bed because, ‘I’m her mum, she needed comfort’; -. she denied ever having said that she did not want D to live with her; -. she did not accept that D’s exhibited mental distress was linked to her home environment rather than a recognised mental illness; CAMHS’ view was that D was struggling with depression; -. asked to comment on a social worker’s view that there were gaps in Children’s Services understanding of D and there was ‘more to be identified’, the Appellant said that the issue was not raised with her; -. D went into foster care in 2017 because her father refused to have her. The Appellant wanted D to live with her, with suitable support, but D refused; -. the Appellant had no contact with D following her move to foster care, save for them both attending two Looked After Child (LAC) review meetings. In response to further questioning, the Appellant accepted that D did not want the Appellant to attend review meetings. The Appellant complained that she was given very little information about D’s progress in foster care; -. DBS’ counsel put it to the Appellant that the statement in her written representations to the DBS that she was “prevented from attending LAC reviews” was incorrect. The Appellant disagreed, replying that ‘[D] did not want me there’; -. asked how she knew that D’s condition deteriorated while in foster care if she had had no contact with her, the Appellant replied by stating that D took two overdoses while in foster care; -. the Appellant was taken to the foster carer’s witness statement of 13 February 2020 in particular: that social services’ suspicion of the Appellant’s controlling behaviour had been borne out; that D could be “very distressed by anything to do with sex or touching or any kind of intimacy; any indirect contact with the Appellant precipitated a ‘massive’ deterioration in her behaviour and her “self-harming would escalate”; and D’s great difficulty in disclosing a history of what the foster carer took to be sexual abuse. The Appellant was asked if she had any reason to think that the foster carer was dishonest. The Appellant replied that ‘I can’t speak for someone else’. The question was repeated, and the Appellant said she ‘can’t answer’; -. the Appellant was again asked to comment on the foster carer’s statement that contact with the Appellant was followed by a ‘massive deterioration’ in D’s behaviour. The Appellant said she had no contact with D while she was in foster care. DBS’ counsel asked if she sent her letters to which the Appellant responded by saying she was encouraged to do so; -. the Appellant was asked why she claimed that D’s condition deteriorated in foster care when there was no evidence to support the claim. The Appellant said she just knew that D took two overdoses while in foster care but, on further questioning, could only recall the date of one overdose in April 2019; -. the Appellant was asked to comment on statements in D’s 3rd LAC review report (2018) that D self-harms when ‘in contact’ with her mother and there were ‘no issues’ with D’s placement. The Appellant said that she lacked detailed knowledge of the placement but if D overdosed in foster care that must mean she was not doing well. At this point, the Appellant became upset, and the hearing was adjourned for five minutes for her to regain her composure; -. the Appellant was asked why her daughter, two years after their last contact, would make allegations of sexual abuse against her. The Appellant replied that she could not answer that, and she did not know where the allegation came from; -. the Appellant was asked again about her statement that she shared a bed with D following her return after living with her father for 17 months. The Appellant said that D had been ‘shunned’ at her father’s home, the Appellant asked D when she had last been hugged and her motherly instinct was to protect her. D embraced this when previously she was completely ‘shut down’. The Appellant added that she did not know what had happened to D during the 17 months that she lived with her father; -. the Appellant’s attention was drawn to the foster carer’s statement that D was very disturbed by sexual references, such as on TV programmes, and asked if this was the case before she was in foster care. The Appellant said that she would not have watched programmes like that. She was asked if she observed any untoward reaction to the odd sexual reference and replied, ‘none at all’; -. the Appellant was taken to safeguarding meeting notes dated 17 May 2019, which said that D had recently washed her hair for the first time in four months. The Appellant was asked if hair washing was a problem when D lived with her. She replied that she encouraged D to keep clean especially when she was having her period; -. the Appellant was taken to the transcripts of D’s ABE interviews. She was asked about D’s statement that the Appellant would be present in the bathroom when D took a bath or shower. The Appellant said she would be present when D was ‘little’ but ‘no, not at all’ after they moved to their home near the seaside (when D was still in primary school). The Appellant gave the same response, and did so forcefully, when asked to comment on D’s allegation that the Appellant sexually abused her when supposedly drying her. The Appellant also denied that any sexual touching took place in the living room, saying ‘no it’s not right’; -. the Appellant denied having been aware, before seeing the foster carer’s witness statement, that she was viewed as manipulative and controlling. Asked whether the foster carer made up that the Appellant sought “total control” over how [the foster carer] supported [D] in her placement, the Appellant replied ‘Yes, I didn’t do it’; -. it was put to the Appellant that the foster carer, like D, had no motive to lie about the Appellant. The Appellant replied that she had tried to meet the foster carer but no one explained the position to her; -. having been taken to the father’s / ex-husband’s witness statement in which he reported D saying that “Mum was trying to control her too much”, the Appellant was asked whether it was just a coincidence that both D and the foster carer saw her as controlling. The Appellant replied that he was her ex-husband and ‘won’t say anything nice about me’; -. the Appellant was asked to comment on the foster carer’s statement that the Appellant “bombarded the head and the teachers with demands and wanted weekly updates”. The Appellant disagreed with the statement, saying that she just acted like any concerned mum. She could not explain why the foster carer described her contacts with the school as a bombardment; -. the Appellant was taken through some of her correspondence with staff at the school attended by D before she entered foster care. She was asked if it was just a coincidence that she thought both schools failed to communicate with her in the way that she felt entitled to be dealt with. The Appellant said that she had not made unreasonable demands and simply sought support and open communication; -. the Appellant was asked to comment on her ex-husband’s statement that she “has the capacity to overstate things about the children especially [D’s] healthcare”. The Appellant said that her ex-husband’s statement had only told half the story concerning D’s sprained ankle. Her actions were those of a concerned parent responding to a child who could not walk. Regarding the statement that, when D was with her father, there was no sign of the ‘severe asthma episodes’ for which the Appellant had sought medical help, the Appellant said that D was diagnosed with asthma and there was an occasion on which no inhaler was available when D had an attack while staying with her father. The Appellant replied ‘yes’ when asked if the ex-husband’s witness statement was completely wrong regarding asthma; -. it was put to the Appellant that, in reality, D’s mental health problems were in very large measure caused by the upbringing she experienced with the Appellant. The Appellant’s view was that D’s problems were caused by her parents splitting up; -. the Appellant denied her ex-husband’s statement that she had tried to talk to D when collecting her two sons from school, when they attended the same school as her. She also denied that statement that, at a school merit award ceremony, she “ended up running up and down the rows of seats chasing her”. The truth, according to the Appellant, was that D ran off and the Appellant left her to it. She also had ‘no idea’ why her ex-husband stated that D reported that the Appellant “chased her through the Arndale centre trying to talk to her”; -. the Appellant was asked whether she used D’s mobile telephone bill to contact D’s friends. The Appellant said she already had contact numbers for D’s friends but accepted that, initially, when D was staying with her father she did contact her friends. The Appellant was asked whether she had asked D’s friends what D had been saying to which the Appellant replied she probably asked them how she was; -. the Appellant was asked if her ex-husband was telling the truth when he stated that he had received at least two calls from unhappy parents regarding the Appellant’s calls to their children. The Appellant said she had no conversations with parents along the lines described in her ex-husband’s witness statement; -. it was put to the Appellant that the reason why she had no relationship with her daughter was because she abused her at age 11/12 and had tried to manipulate and control her life. The Appellant replied, ‘No, I’ve never abused, I’m not perfect, nor is my ex-husband. I’ve never, ever abused my daughter. I’m not manipulative. I’m a human being. I say here categorically no’; -. it was put to the Appellant that her daughter’s self-harming and refusal to eat was a mechanism to get people to listen to her and remove her from the Appellant’s care. The Appellant rejected this, saying that D started self-harming when living with her dad, no one had ever asked her she self-harmed in her father’s home, and ‘only D knows why she self-harmed and what happened to her’. Yes, it was a cry for help but no one knows why, and ‘the self-harm started when D was staying with her dad’.

Re-examination

[43]In re-examination by her counsel, Ms Anderson, the Appellant: -. accepted that the foster carer’s witness statement referred to a single overdose while D was in her care. The Appellant maintained that she knew of a second overdose from her ex-husband. When asked how she replied, ‘probably just telephone’; -. was referred to her witness statement in which she ‘talked about a suggestion’ that, during the 17 months that D lived with her father, D stole and lied. The Appellant was asked how she knew this and replied that D told her; -. was asked about D’s mental state when she returned to her after living with her father for 17 months. The Appellant said that D was very upset and sad. At times D did not want to visit her father saying no one talked to her there and no one cares. Arguments DBS

Arguments

[44]Mr Baynes, for DBS, submits that ground 1 (all findings of fact arguably mistaken) is purely factual. Under Court of Appeal authority, if a finding of fact is open to DBS on the evidence there can be no mistake of fact. The DBS’ findings of manipulative and controlling behaviour involved a combination of pure finding of fact and value judgement. The Upper Tribunal’s attention is drawn to the distinction, in this context, between findings of fact and value judgements, as demonstrated by the caselaw authorities. The DBS reject the argument that their decision was based on any mistake of fact, arguing that all of their findings of fact were permissible and reasonably open to it on the evidence.[45]Mr Baynes notes that the Upper Tribunal has before it evidence that was not before the DBS in particular the Appellant’s witness statement, her oral evidence at this hearing and social care records. Nothing in the new evidence undermines the DBS’ findings. The Appellant continues to maintain her bare denial of wrongdoing in relation to the sexual abuse allegation, as she did before the DBS. In fact, the social care records support the DBS’ findings and are inconsistent with the Appellant’s case that D deteriorated while in foster care. They portray a girl who was very troubled in her mother’s care but not particularly so in school or with her father.[46]It is telling, submits Mr Baynes that, after D left her mother’s care, her self-harming recurred whenever the Appellant re-emerged in her life in some form, and that her final suicide attempt in 2019 was ‘hot on the heels’ of her disclosure of sexual abuse.[47]The Appellant’s oral evidence described a second suicide attempt while D was in foster care. It is astonishing, argues Mr Bayne, that there was no mention of this in the social care records. The claim that the information was provided by the Appellant’s ex-husband ‘over the telephone’ is also inconsistent with his witness statement.[48]Apart from one documented overdose, in Mr Bayne’s submission the evidence does not support the argument that D was problematic in her foster care placement. And there is no medical evidence that D has ever been diagnosed with a recognised mental illness.[49]Mr Baynes submits that the issue before the Upper Tribunal is similar to that which often arises in family proceedings where reliance is placed on a child’s hearsay evidence. By analogy with family court authorities, the Upper Tribunal should not compartmentalise the evidence. Corroborative evidence must be considered. Mr Baynes also submits that, in both ABE interviews, the interviewing officers took great pains not to lead D. Either D was a very good actor, or she was genuinely describing events as she perceived them.[50]The DBS submit that the lack of direct corroborative evidence, in particular witnesses, is an almost inevitable feature of offences of this type. It is hardly surprising. In any event, the DBS balanced the lack of corroborative evidence against other considerations including: the manner of D’s initial disclosures and the surrounding emotional context; D’s consistent ABE evidence; D’s difficulty in speaking about her allegations; D’s father’s evidence that he observed a change in her behaviour around the time that she later said she was being sexually abused.[51]Mr Baynes argues that there is much evidence that something went wrong in D’s family and the only suggestion of abuse relates to the Appellant. D’s actions can only properly be interpreted as a cry for help. On numerous occasions, D voiced very serious reservations about living with her mother. By contrast, when apart from her mother, D’s behaviour improved, and any deteriorations were associated with maternal contact. The evidential context also includes D’s recorded aversion to being touched and to sexual references. If the evidence is considered as a whole, it is very difficult to explain D’s allegations unless they are true.[52]The Appellant emphasises D’s poor mental health. But even if the Upper Tribunal accepts that D was mentally ill, that says nothing, argues Mr Baynes, about whether she has a propensity to lie.[53]The DBS submit that they did take into account that no criminal prosecution was brought, as well as the references supplied by the Appellant.[54]Mr Baynes accepts that, if the Upper Tribunal finds that the DBS mistakenly found that the Appellant abused her daughter, the remaining findings of manipulative and controlling behaviour would be unlikely to justify barring.[55]Regarding the second ground of appeal, Mr Baynes submits that it is difficult to see what is disproportionate about barring from the vulnerable adults’ workforce an individual who sexually abused their 11/12 year old daughter. The DBS stand by the analysis in their Barring Decision Process document, which relied on the Appellant’s propensity to transgress legal boundaries in order to meet her own needs, not only her sexual needs, and submit that the Appellant’s conduct might equally well be repeated in future in relation to a vulnerable adult.

The Appellant

[56]In response to a question from the panel at the hearing, Ms Anderson, for the Appellant, said that she did not have anything akin to a letter of instruction for the Appellant’s references but that those given by her sons were written in the presence of an appropriate adult. Ms Anderson submits that the Upper Tribunal should not attach less weight to the Appellant’s references because there is no letter of instruction. Virtually all the referees describe the Appellant as honest, reliable, possessing integrity, kind, a good mother, and having a strong sense of justice. Significant weight should be given to the references provided by the Appellant’s sons. The Appellant’s witness statement describes her career in nursing followed by employment in the charity sector and culminating in her setting up her own charity to support parents whose children have mental health problems a history that is consistent with the views expressed by the Appellant’s referees. The DBS gave insufficient weight to the absence of a criminal prosecution and the references provided by D.[57]Ms Anderson questions whether findings as to manipulative and controlling behaviour may properly be described as value judgements. These allegations were pleaded and instances in support identified. A finding of manipulative and controlling behaviour is akin to a finding of dishonesty which is clearly not outwith the Upper Tribunal’s appellate jurisdiction under the 2006 Act.[58]The Appellant argues that the absence of corroborative evidence is a fundamental weakness in the DBS’ case. In written submissions, the Appellant argues that D’s credibility is undermined by her history of poor mental health and that her history of poor relations with the Appellant “may give her a motive to fabricate these allegations”. The Appellant’s skeleton argument submits that D is not a credible witness and “has a history of documented mental health difficulties…including self-harm and ‘hearing voices’”. The skeleton argument also argues that the sexual abuse allegations “have been fabricated by [the Appellant’s] ex-husband…as well as her daughter”. Overall, the finding of sexual abuse was not reasonably open to the DBS on the evidence before it, and the DBS failed to provide any adequate explanation as to why D’s account was preferred to the Appellant’s.[59]Ms Anderson submits that the Appellant’s oral evidence significantly enhanced her credibility. She gave evidence at length and did so voluntarily. Oral evidence is the ‘gold standard’ of evidence and must be considered more valuable than simply written documents. The Appellant has not tried to gloss over her own failings, but she has highlighted steps taken to improve her parenting such as stepping back from LAC review meetings when it was clear that D did not want her to attend. The Appellant also told the Upper Tribunal if she could not remember a particular date. She did not try to make anything up.[60]Ms Anderson submits that, on the evidence before the Upper Tribunal, it cannot be said, on a balance of probabilities, that the Appellant sexually abused her daughter as alleged. The Appellant has always strongly denied the allegations and maintained that denial in her oral evidence. When the allegations were made in 2019, there were no pre-cursor allegations despite D’s ongoing assessment and support from trusted professionals and other adults.[61]The DBS criticise the Appellant for what they describe as a ‘bare denial’. However, the Appellant does not have to prove anything and, in the evidential circumstances, it is difficult to see what more she can do than deny the allegations.[62]In weighing up D’s evidence, the Upper Tribunal should take into account that it has heard no live evidence from D as well as her documented mood / mental health problems. It should also take into consideration the poor quality of D’s evidence. This all began when D wrote the letter ‘s’ on her iPad which the foster carer interpreted as sexual abuse and, even then, D’s supposedly confirmatory response was non-verbal and, Ms Anderson submits, elicited by the suggestiveness of D’s foster carer. This climate of suggestiveness carried over to D’s police interviews in which D’s communication was, to a significant extent, also non-verbal.[63]While the evidence shows a deterioration in D’s behaviour from around age 11, there were other possible triggers than sexual abuse. D’s allegations must be viewed in the light of evidence of a very acrimonious marital split and the effect that this had on D. What, asks Ms Anderson, might explain the breakdown of the relationship between D and the Appellant if there was no sexual abuse? Before making the allegation of sexual abuse, D gave consistent reasons for not wanting to be around her mum: she told various professionals that her mum nagged and ignored her, she did not like being instructed by her mother, her mother never listened to her, and D felt she was treated differently and unloved in comparison with her brothers. These considerations are far more likely to explain D’s behaviour than her mother’s sexual abuse.[64]The Upper Tribunal must take into account that the police found that there was insufficient evidence to charge the Appellant with any offence.[65]The Appellant has consistently and plausibly denied that she unreasonably sought to control D’s foster placement. Her actions can only be viewed as those to be expected of any concerned parent whose child enters state care. The same applies to her interactions with D’s schools.[66]The DBS’ reliance on the absence of D’s formal diagnosis with a mental illness is simply semantics. D refused to eat, was referred to CAMHS and received significant clinical input. To a lay person, that describes a person with a mental health problem. The Appellant’s interactions with professionals demonstrate no more than a desperate parent who felt let down by statutory agencies.[67]Regarding the allegation that the Appellant chased D at school and in a shopping centre, the Appellant’s case is that D may have misinterpreted events. In any event, the Appellant had the right to be at D’s school and the shopping centre incident simply did not happen. Regarding the allegation that the Appellant contacted D’s friends, the Appellant did not view this as abnormal and the evidence that the phone calls caused worry came only from the ex-husband and, even then, it was third hand evidence.[68]In relation to ground 2, Ms Anderson submits that, if the finding of sexual abuse stands, it cannot be relied on as evidence of a sexual interest in young adults or older children. There is no risk to be guarded against. Inclusion in the vulnerable adults barred list must therefore be disproportionate. Even if the DBS’ findings of fact stand, it was irrational and disproportionate to include the Appellant on the vulnerable adults barred list. The alleged misconduct was of a very specific type involving sexual interest in young female children. That sort of deviance cannot properly be considered to pose a risk of harm to vulnerable adults.[69]If the Upper Tribunal were minded to find that D’s mental health difficulties are explained by sexual abuse, it should pause to consider the above matters as well as D’s reaction to her parents’ divorce and her difficulties in school. Conclusions Our approach to the DBS’ findings of fact[70]This is not a case in which the Upper Tribunal, on appeal, is merely reviewing the evidence before the DBS. The Upper Tribunal has before it evidence that was not before the DBS, in particular the Appellant’s witness statement and her oral evidence. The Upper Tribunal is entitled to find that the Appellant’s denial of wrongdoing, in particular her denial that she sexually abused her daughter, is credible, so that it was a mistake of fact to find that the Appellant sexually abused her daughter (RI). Since this is not a case in which we have the same material as was before the DBS, we are not precluded from overturning the DBS’ findings unless they are irrational or there was ‘simply no evidence to justify the decision’ (RI).[71]We are conscious of the need to distinguish findings of fact from value judgements (AB). However, the key finding made against this Appellant, that she sexually abused her daughter, involves in our judgment matters of pure fact.

D’s disclosure of sexual abuse

[72]In our analysis, which is informed by the experience of the specialist members of the Upper Tribunal panel, we find that the manner in which D revealed her allegations of sexual abuse against her mother had certain features which are often seen in a child’s disclosure of sexual abuse. We recognise that each child is different and there is no set format, but certain features of D’s case are commonly seen in a child’s disclosure of sexual abuse, especially where the sexual abuse is inflicted by a close family member. For instance: (a). multiple sources of evidence described a significant change in D’s behaviour around the time that she subsequently said she was being sexually abused, but before any allegation was made; (b). multiple sources of evidence showed D’s extreme reluctance to have any contact, even indirect contact, with her mother; (c). D’s disclosure was not made until she had established a relationship with a trusted professional outside the family (the foster carer); (d). D’s disclosure was not made until she had moved to what may fairly be considered a place of safety (foster carer’s home) (e). the evidence clearly described the painstaking way in which D slowly, reluctantly, and in apparent distress, disclosed details of the alleged sexual abuse; (f). D’s ABE interviews demonstrated her difficulty in verbalising the most intimate aspects of the alleged sexual abuse and her preference for explaining these matters with the aid of props.[73]None of the evidence referred in the above paragraph was seriously challenged by the Appellant. What she disputed was that D’s documented behaviour was indicative of a child disclosing genuine sexual abuse.[74]Many of the above features of D’s disclosure history match those identified in official government guidance about dealing with children who have or might have been sexually abused. For instance: (a). Working Together to Safeguard Children: 2023 Statutory Guidance (HM Gov, 2023) includes advice for practitioners on possible indicators of abuse short of a direct allegation of abuse. These include “children whose behaviour changes”; “children with consistently poor hygiene” and “children who make strong efforts to avoid specific family members…without an obvious reason” (p.6). All of these indicators are reflected in the evidence before us; (b). Learning for the Future: Final Analysis of Serious Case Reviews, 2017 to 2019 (DfE, 2022) refers to how difficult it is for children to talk about abuse (5.4.2), that disclosure of abuse often follows a child establishing a ‘trusting relationship’ (5.5), that some children are only able to disclose abuse after moving to a place of safety and there is a pattern of behavioural problems preceding verbal disclosure in a place of safety (6.3); (c). Achieving Best Evidence in Criminal Proceedings (Ministry of Justice, 2022) notes that children who have experienced a traumatic event may need breaks when being interviewed about those events (2.235), the assistance of a registered intermediary may be necessary for a child to communicate about particularly traumatic events (2.264), children may be particularly reluctant to talk freely and openly about allegations of sexual abuse (3.38), it can be less traumatic for children to explain sexual abuse by reference to a prop rather than their own bodies (3.124), psychologically disturbed and traumatised children may present as very reluctant interviewees (E.3.4).[75]In our judgment, D’s behavioural history and the manner in which she disclosed sexual abuse were consistent with, or characteristic of, the behaviour of children who disclose real sexual abuse by a close family member.[76]Other aspects of the evidence case also lend weight to the credibility of D’s disclosure of sexual abuse: (a). there are no significant inconsistences in the accounts given by D at different times (on her iPad, to the foster carer and during the two ABE interviews). Indeed, the Appellant does not argue that D made inconsistent disclosures; (b). during the second ABE interview, which generated the most detailed account of D’s alleged abuse, there was an identifiable pattern to the way in which D made her disclosures which, in our judgment, added to her credibility. When discussing particularly intimate aspects of the alleged abuse, D’s disclosures tended to be non-verbal, but this was not the case when D was asked to describe the wider context. For example, when discussing alleged sexual abuse in the bathroom, D was unable to say the words ‘breast’ and ‘vagina’. She used props instead or just nod or shook her head. When discussing frequency and location, however, D was able to respond verbally to the interviewer’s questions. The same pattern was evident when the ABE interview turned to alleged sexual abuse in the living room. D was unable to say the word ‘vagina’ but gave verbal answers when asked what she was wearing and when the alleged abuse occurred.[77]We also take into account that the Appellant has, at different times, given different explanations for what she says are D’s false allegations: (a). in her police interview, the Appellant said D may have made the allegations because the Appellant was the only person never to have rejected D; (b). in her DBS representations, the Appellant seemed to suggest that the allegations were linked to years of failure by public bodies to provide D with the help she needed; (c). in written submissions, the Appellant argued that her history of poor relations with her daughter may have given her a motive to fabricate the allegations; (d). the Appellant’s skeleton argument submits that the allegations were fabricated by D and her ex-husband; (e). in oral submissions, the Appellant’s counsel suggested that the allegations may have been elicited by the suggestiveness of D’s foster carer, and that ‘climate of suggestiveness’ was carried over to the ABE interviews.[78]Viewed in isolation, we find none of the explanations for what the Appellant says are fabricated allegations of sexual abuse persuasive: (a). we have tried, without success, to identify any possible rationale for the argument that D made false allegations against the Appellant because she is the only person never to have rejected D. The argument seems to assume that D set out to test the Appellant’s commitment to her by making up an allegation of sexual abuse in order to see if that commitment withstood D doing something horrendous (fabricating sexual abuse) that would ordinarily rupture the relationship between parent and child. In our view, such behaviour is so aberrant as to be inherently unlikely. It becomes even more unlikely if considered alongside the evidence that D found the experience of making her disclosure extremely distressing. We think it is fanciful to suggest that D both devised a cruel plan to test her mother’s commitment and, in putting the plan into effect, simulated signs of extreme distress; (b). even if the Appellant correctly asserts that D was not given adequate help by statutory agencies, it makes no sense for D to have reacted to that by fabricating allegations of sexual abuse against her mother. If D knew that public bodies had failed her, why take that out on her mother? If D did not know that she had been let down by public bodies, and simply experienced levels of distress that would have been mitigated had public bodies done their jobs properly, why should that distress have manifested itself in the form of fabricated allegations of sexual abuse against D's mother? We cannot think of any plausible answer to these questions; (c). the argument that D was motivated by some misguided attempt to take revenge on her mother rests on the assumption that D hatched a cold-hearted plan to damage her mother. This assumes that the abuse allegation and the apparent associated distress, including at least one suicide attempt, were simulated by D. If D’s aim was revenge motivated by a history of poor relations between D and the Appellant, why did she not fabricate an allegation of even more serious sexual abuse? Regrettably, and without in any way wishing to diminish the significance of sexual abuse of the type described by D, many children experience far more severe sexual abuse than that described by D. And, again, this argument implausibly assumes that D was able to manufacture symptoms of extreme distress during the disclosure process; (d). the Appellant’s ex-husband’s police witness statement said that he “certainly didn’t know why” his daughter refused to be discharged from hospital into the Appellant’s care. Police records also state that, in a discussion with police officers in June 2019, the ex-husband “described how he was shocked to hear of how [D] had implicated her mother in a sexual offence matter and described he has not at any time witnessed anything that he thinks will be pertinent to the investigation”. If, as the Appellant alleges, the allegations were fabricated by her ex-husband, for what possible reason would he pass up the opportunity to implicate the Appellant? We cannot think of any; (e). in relation to the foster carer, the Appellant’s argument must rely on the foster carer’s witness statement evidence because there is no other evidence about the circumstances of D’s disclosure to the foster carer. However, in that statement the foster carer describes how, in response to D writing ‘s’ on her iPad, she first asked if she meant physical or emotional abuse. It was only once D responded negatively that the foster carer asked D if she meant sexual abuse. The argument that the ABE interviews were conducted in a ‘climate of suggestiveness’ is not supported by reference to any part of the transcript of either interview. We have read both transcripts with care but cannot identify this supposed ‘climate of suggestiveness’. It seems to us that both interviews were conducted properly in accordance with the ABE guidance that we referred to above in these reasons. Yes, D was very reluctant to speak about the nature of the allegations but that is not unusual in the case if children who report sexual abuse, especially at the hands of a family member. The way in which the police officers responded to D’s reluctance cannot fairly be described as suggestive and we see no obvious respect in which the ABE interviews departed from the ABE guidance.[79]Taken together, the Appellant’s differing explanations of why D should fabricate allegations of sexual abuse weaken each other. The Appellant has not provided a consistent rebuttal of the allegations and some of her explanations are contradictory. For instance, if the reason why D fabricated the allegations was that the Appellant was the only person who had ever unconditionally supported her, how could the ex-husband have possibly featured in the fabrication? The Appellant’s explanations are further weakened by her final assessment, given in oral evidence, that she could not explain why her daughter fabricated allegations of sexual abuse.[80]We turn now to the crucial question whether the DBS mistakenly found that the Appellant sexually abused her daughter. If the test that we are to apply in assessing the DBS’ findings of fact is whether they were ‘plainly wrong’ or not ‘reasonably open’ to DBS, we are satisfied that the DBS did not make a mistake of fact. D’s disclosure of sexual abuse was consistent with recognised features of true disclosure of familial sexual abuse and the Appellant’s attempts to try and explain why D would fabricate such abuse were wholly unpersuasive. Both features demonstrate that the DBS’ finding was not plainly wrong nor was it not reasonably open to the DBS on the evidence.[81]If we are required to make our own finding as to whether, on the balance of probability, D’s allegations of sexual abuse were true, we find that the Appellant did sexually abuse her daughter in the manner described by D. We do not find D’s disclosure persuasive simply because the Appellant has provided inconsistent and implausible explanations for what she says are fabricated allegations. The principal reasons why we find D’s allegations to be true are because her account remained consistent over time and her conduct was typical of a child who discloses sexual abuse by a close family member. On that latter point, we place particular reliance on the following considerations all of which are disclosed by the evidence: (a). D’s behaviour changed significantly, and for the worse, around the same time as she later alleged that she was being sexually abused by her mother. This is a recognised behavioural response to a child being sexually abused, especially where it is committed by a family member; (b). throughout her teenage years, D showed an extreme reluctance to have anything to do with her mother and when she did, even if the contact was indirect, this was often the prelude to self-harm. This is another recognised behavioural response to familial sexual abuse; (c). when D did return to live with her mother after spending 17 months residing with her father, it was because she felt that she was no longer welcome at her father’s home. We do not consider that this act showed that D felt safe in her mother’s care; (d). within a few weeks of returning to live with her mother, D inflicted significant self-harm and was admitted to a secure mental health facility; (e). D’s initial disclosure to her foster carer came only after she had lived with her for some time, and it had become her settled placement. Government guidance recognises that a child is often only able to disclose sexual abuse when she feels that she is in a place of safety and to a trusted adult. The manner of D’s disclosure was consistent with this; (f). the process of disclosure was very difficult for D and caused her significant distress. It was a drawn-out process engaged with by D only with obvious reluctance. This was more consistent with D describing actual sexual abuse than fabricated abuse; (g). the manner in which D described sexual abuse during her ABE interviews showed an inability to verbalise the most intimate aspects of abuse. She only described the most intimate details once interviewed with the assistance of a registered intermediary. The way in which D described sexual abuse in her ABE interviews was more consistent with a child describing actual sexual abuse than fabricated.[82]We have considered the Appellant’s supporting references. While the referees paint a uniformly positive picture of the Appellant’s personality, that does not in our view undermine D’s credibility. None of the references mention any history of fabrication on D’s part and only two suggest that a referee might have been aware that the allegation was that the Appellant had she sexually abused her daughter. When we take those considerations into account alongside the Appellant’s inconsistent attempts to explain why D fabricated her allegations and the factors discussed above that lend credibility to D’s account, the references do not persuade that D fabricated the allegations made against her mother. We are asked to attach significant weight to the references provided by the Appellant’s sons, but these do not, directly or indirectly, offer a view on whether the Appellant was likely to have seriously mistreated her daughter.[83]The Appellant argues that the deterioration in D’s behaviour from age 11 was far more likely to have been caused by something other than sexual abuse in particular the breakdown of her parents’ marriage, her perception that her mother never listened to her, nagged and ignored her and that she was the least loved child. However, the alignment of the onset of D’s behavioural problems with the time that she said she was being sexually abused is only one of a number of factors that persuade us that D’s allegations were not fabricated. We do not doubt that D faced a number of challenges when growing up, including those identified in the Appellant’s case. However, we consider it unlikely that D’s behaviour was mainly due to her simply objecting to her mother’s parenting style given the permanence and intensity of her antagonistic feelings towards her mother, as demonstrated by the evidence. We do not accept that D’s behaviour was simply a function of her being nagged, ignored, and overly-instructed by her mother, and feeling less loved than her brothers, so as to call into question our finding that, on a balance of probabilities, D’s allegations were not fabricated.[84]We do not accept the argument that oral evidence must be considered inherently more valuable than written evidence. Our task is to evaluate the evidence as a whole and, having done that, we are satisfied, on a balance of probabilities, that D’s allegations against the Appellant are true. In relation to alleged sexual abuse, the Appellant’s oral evidence was a bare denial and an inability to explain why her daughter might fabricate allegations of sexual abuse. While the Appellant’s oral evidence was given forcefully, it failed to persuade us. It was also inconsistent with the Appellant’s written case and does not weaken the strong impression made on us by the circumstances of D's disclosure as explained above. Ground 1 –

Conclusions

[85]We find that the DBS’ crucial finding of fact, that the Appellant sexually abused D in the manner described by D, was not a mistaken finding of fact.[86]The DBS’ other findings of fact were relied on by the DBS as showing manipulative and controlling behaviour. These findings of fact were very much subsidiary to the finding that the Appellant sexually abused her daughter, and we agree with DBS’ counsel that, on their own, would not have justified their barring decisions.[87]We do have doubts as to the correctness of these subsidiary findings of fact. In our view, it is quite normal for a parent whose child is in care to want to be as closely involved as possible in care arrangements especially where, as in this case, parental responsibility remains vested solely in the child’s parents (D was not subject to a care order). The evidence shows that D exhibited serious mental distress, self-harmed on a number of occasions and was admitted to a secure mental health facility. All of that was consistent, at least to a lay person, with a child experiencing a mental health problem and the fact that a formal diagnosis of a mental disorder may have been absent cannot properly be relied on as the basis for a finding that the Appellant falsely claimed that her child had mental health problems. The ‘chasing’ evidence was second hand being found in the father’s report of statements made to him by D and none of D’s first-hand evidence mentioned these chases. In any event, even if true, we doubt that two instances in which a parent openly sought to communicate with a separated child are a proper basis for a finding of manipulative and controlling behaviour. The same evidential weakness apply to the finding that the Appellant contacted some of D’s friends by telephone.[88]However, our doubts as to the correctness of the DBS’ subsidiary findings of fact make no difference to the outcome. We do not consider these to have been findings of fact on which the barring decision was based so that, even if they were mistaken findings, they are not a ground for allowing this appeal (see section 4(2) of the 2006 Act). Even if the DBS had made no findings as to controlling/manipulative behaviour, we are satisfied that they would have made the same barring decisions. We are certain that these findings did not ‘tip the balance’ in favour of barring so that, without them, the DBS would have considered the sexual abuse finding to be an insufficient basis for barring the Appellant. And, on their own, the findings as to controlling/manipulative behaviour, would clearly have not justified any barring decision.[89]To conclude, ground 1 is not made out. The DBS’ finding that the Appellant sexually abused her daughter was not a mistaken finding of fact. The DBS’ other findings of fact were not findings on which their barring decisions were based so that, even if they were mistaken, are not a ground for allowing this appeal.

Ground 2 – conclusions

[90]This ground concerns the proportionality of DBS’ decision to include the Appellant on the list of persons barred from working with vulnerable adults.[91]In our analysis, the risk that the DBS thought needed to be guarded against was not simply that, as it found, the Appellant had a sexual interest in ‘pre-pubescent girls’. The risk was described with more precision in the DBS’ Structured Judgement Process document as the Appellant being “willing to transgress legal boundaries to satisfy her own needs regardless of the harm that this causes to those in her care”.[92]The DBS’ finding that the Appellant was willing to transgress legal boundaries to satisfy her own needs was in the nature of a value judgement. It was a judgement that was open to the DBS in the light of its finding that the Appellant had sexually abused her daughter. We say that because the finding related to a child whose vulnerability to exploitation was obviously heightened by her parents’ separation, which left her living in a household overseen by her mother with limited practical opportunities to seek protection elsewhere, and whose stage of development / age meant that sexual abuse was bound to be particularly damaging to her emotional well-being.[93]We remind ourselves that, while the Upper Tribunal is to determine the proportionality of barring for itself, in assessing proportionality the Upper Tribunal must accord appropriate weight to the decision of the barring authority “as the body particularly equipped to make safeguarding decisions” (B v Independent Safeguarding Authority [2013] 1 WLR 308).[94]We are satisfied that the Appellant’s inclusion in the vulnerable adults’ barred list is a proportionate response to the risks posed by a person who is willing to transgress legal boundaries to satisfy their own needs. While this case has involved sexual needs, the circumstances of the Appellant’s sexual abuse of her daughter, involving a child particularly vulnerable to exploitation and taking place at a particularly damaging time in the child’s development, demonstrate that the Appellant poses a risk, that cannot be considered insignificant, of transgression of legal boundaries in relation to other vulnerable people in order to meet the Appellant’s own needs, whether they be sexual or otherwise. The Appellant’s inclusion in the vulnerable adults list in not, in our judgement, a disproportionate act. If barring the Appellant from working with vulnerable adults is proportionate, it cannot be irrational. Ground 2 therefore fails.

Conclusion

[95]This appeal is dismissed. The DBS’ decisions to include the Appellant in the children’s and vulnerable adults’ barred lists stand.[96]Finally, we apologise for the delay in giving this decision. Shortly after the hearing of this appeal, the judge suffered serious injuries in an accident and was absent from his duties while recovering, and, on returning to work was on limited duties. We are sorry for the frustration that we are sure that the Appellant experienced while waiting for our decision. 3 December 2024 Upper Tribunal Judge Mitchell Upper Tribunal Member Heggie Upper Tribunal Member Turner