Vicarious liability for foster carers – Court of Appeal ruling

On 23 July the Court of Appeal handed down judgment on the question of whether a local authority can be held vicariously liable for assaults by a foster carer who was also a relative of the claimant.

Background

The claimant, DJ, first came to the attention of the defendant local authority in early 1974 following concerns of parental neglect when he was four years old. The family situation had deteriorated by the following year and the local authority intervened by receiving DJ into care and placed him with foster carers. This placement was for around a month before he returned to his mother’s care but by 1980 he was living with his father in what was described as an “itinerant lifestyle”. Social Services became involved again and were made aware that a maternal aunt and uncle, Mr and Mrs G, had expressed an interest in caring for DJ. He moved to live with them in January 1980.

Mr and Mrs G were approved by the local authority to become DJ’s foster carers. The assessment was positive despite a police check that Mr G had been convicted of sexual offences in 1966. He was not considered a risk to his 10 year old nephew.

DJ underwent regular monitoring by social workers and the G family received boarding out payments. The local authority did not assume parental rights at that stage. This occurred subsequently in early 1983 when DJ’s mother had called asking if he could live with her in Scotland. However, DJ remained with the G family until his late teens, during which time he was sexually abused by Mr G.

First instance trial and appeal in the High Court

The position regarding unrelated foster carers was settled in 2017 in the case of Armes v Nottinghamshire County Council (Armes). Here, the Supreme Court held that the relationship between a local authority and an unrelated foster carer was sufficiently akin to employment to justify the imposition of vicarious liability.

The defendant in DJ’s case argued that the facts were different from those in Armes. It was a family relationship independent of children’s services and it would not have come about if DJ had not been a relative. The recorder at first instance agreed.

DJ appealed asserting that the facts were not different from a regular foster care arrangement. He had not met the G family until he was about nine years old and they had undergone rigorous assessment and monitoring. The local authority’s case was that the G family was not recruited or selected by them. Rather, they volunteered for the role when DJ’s family disintegrated.

Lambert J agreed with the recorder that it was necessary to consider the balance of the policy reasons underpinning the imposition of vicarious liability. The key question was whether the G family’s care for the claimant was integral to the business of the local authority or whether it was sufficiently distinct from the activity of the defendant to avoid the imposition of vicarious liability? She found that the G family were carrying out their own activity distinct from the statutory obligations of the local authority. They had also raised their nephew in the interest of the family, not the local authority. The fact that DJ and the G family had not met until he was 10 did not interfere with the purpose of the arrangement. Therefore the appeal was dismissed on the basis that the local authority was not vicariously liable for the abuse by Mr G.

The Court of Appeal

The ground for appeal was that the recorder and judge were wrong in finding that the relationship between Mr G and the local authority was not one that could give rise to vicarious liability. DJ’s counsel argued that:

• Whilst not recruited and selected by the local authority, the G family had gone through a full assessment;
• They had no training;
• The decision for DJ to remain with the G family was made by the local authority, not the family;
• The motive for the G family offering to foster was given too much weight; and
• The relevant relationship was that between the local authority and the G family, rather than the relationship they had with DJ.

The local authority argued that the previous court was correct in finding that the G family caring for DJ was not integral to the local authority’s business because they had been acting principally in the interest of the family.

The justices in the Court of Appeal made it very clear that their judgment was based on the specific facts of the case and were not drawn on setting out, more generally, when vicarious liability may apply in a case of related foster carers. They found the relationship between the G family and the local authority was one that was akin to employment from the time DJ was brought into care in August 1980. Specifically, the local authority had not recruited the family but had assessed, selected, monitored and supervised. They also found that the local authority had a statutory duty to care for and accommodate DJ and that, in caring for DJ, the G family was integral to the local authority’s business of discharging its statutory duties towards him. They held that motive was not relevant as foster carers have many reasons why they offer themselves for this role.

Comment

So where does this leave us? Whilst the case does offer some useful guidance, it does not give a clear steer on how defendants and their representatives should respond to future cases involving relatives caring for looked after children under the current legislation. Each case will still need to be assessed on its individual facts.  

Related item: Vicarious liability in the context of foster care