Local authority vicariously liable for abuse by foster carers
Armes v Nottinghamshire County Council [18.10.17]
The Supreme Court finds that a local authority is liable for the abuse committed by foster parents on the basis of vicarious liability. Alleged liability on the basis of a non-delegable duty to ensure that reasonable care is taken for the safety of children in care and control of foster parents is rejected.
The claimant was in the care of the defendant local authority from the ages of seven to eighteen and had been placed into both residential homes and foster care. The case proceeded on the basis that the local authority were not negligent in the selection or supervision of the foster parents, but that they were liable for the abuse perpetrated by her foster carers.
The claimant’s allegations against the defendant were:
- Direct negligence by social workers.
- Vicarious liability for the physical and emotional abuse by Mrs A and sexual abuse by Mr B.
- Breach of a non-delegable duty, as a result of the physical and sexual abuse by Mrs A and Mr B.
At first instance, the court found the claimant had been abused by Mrs A and Mr B, as alleged. The court exercised its discretion to disapply the limitation period.
However, in relation to liability, it was held that the local authority had not failed to exercise reasonable care in the selection, supervision or monitoring of foster parents or foster placements. Neither was there found to be a relationship between the local authority and the foster parents that was akin to one between an employer and employee.
The Court of Appeal dismissed the appeal.
Supreme Court decision
The Supreme Court allowed the appeal. By a majority of 4-1 (with Lord Hughes dissenting), the court held a local authority is not under a non-delegable duty of care to ensure that reasonable care is taken for the safety of children in care whilst they are in the care and control of foster parents. To insist otherwise was too broad and fixes local authorities with too demanding a responsibility.
Accordingly, where a non-delegable duty is owed by a local authority in situations outside of foster care, such a duty can now be breached by deliberate torts/assaults.
However, the court saw fit to impose vicarious liability for the acts of the foster parents. The reasons provided included the following:
- Nature of the activity: the foster parents were carrying out an activity on behalf of (and for the benefit of) the defendant local authority - namely the care of a child who had been committed to its care. The local authority were under a statutory duty to care for such a child, which they sought to discharge by placing the child with foster carers. Such carers were perceived as an integral part of the local authority’s organisation of its childcare services.
- Risk creation: the placement of children with foster parents creates a relationship of authority and trust between foster parent and child. This in turn creates the risk of abuse in a situation where close control cannot be exercised by the local authority. If a local authority considers it advantageous to place children in foster care (despite the risk that some children may be abused), it is fair that the local authority should compensate the unfortunate child for whom that risk materialises.
- Control: the local authority exercised a significant degree of control over the foster parents, reflecting that it is the local authority which possessed parental powers in relation to the child. Foster parents are not in the same position as ordinary parents given a local authority’s powers of approval, inspection, supervision and removal - powers which are unprecedented in ordinary family life. Control amounting to micro-management (akin to day-to-day family life) is not required to establish vicarious liability.
- Means to pay: it was deemed a relevant consideration that local authorities can more easily compensate the victims of injuries, as opposed to foster parents. Most foster parents have insufficient means and are unlikely to have insurance to cover such eventualities.
This decision has considerable implications for the social care administered by local authorities. In particular, consideration will need to be given as to the liability of foster agencies in situations where they place children on behalf of a Local Authority. These issues include the:
- Provision for the cost of historical abuse cases arising from foster placements.
- Extent to which their current safeguarding and engagement protocols are robust, in light of the court’s opinion that a local authority should balance a desire to promote a family environment with the need to ensure checks and balances around that placement.
This decision should be seen as a further extension of vicarious liability that the courts have been embarking upon since 2012, when Lord Phillips commented: “The law of vicarious liability is on the move.” (Various Claimants v The Catholic Child Welfare Society ).
The challenge for local authorities and insurers will be which of the other functions that they operate are susceptible to challenge and how they might protect themselves from claims. Such protection is likely to be through potentially tighter control over the processes, as well as contractual protection for outsourced services.
Related item: Vicarious liability: a difficult day for defendants