Council vicariously liable for foster carers' abuse, Supreme Court rules
A local authority should be held vicariously liable for abuse committed by foster parents on a child placed in their care by the authority, having regard to the legislation and practice in force at the relevant time, the UK Supreme Court ruled today.
Five judges unanimously ruled that there was no non-delegable duty of care owed by the authority to ensure that reasonable care was taken for the safety of children in the cvare of foster parents, but by a majority of four to one held that vicarious liability applied.
The court allowed an appeal by Natasha Armes against the dismissal of her case in the High Court and Court of Appeal, claiming damages against Nottinghamshire County Council for physical and emotional abuse by one set of foster parents, and sexual abuse by the husband of a second set, with whom she was placed between 1985 and 1988.
In relation to the case based on non-delegable duty, Lord Reed, with whom Lady Hale, Lord Kerr, Lord Clarke and Lord Hughes agreed, said it would be too broad a proposition, and fix authorities with too demanding a responsibility, to declare the duty argued for, and inconsistent with the terms of the Child Care Act 1980, the England & Wales Act that applied at the time.
However as respects vicarious liability (the principle more commonly applied to make employers liable for the acts of their employees), the majority held that applying the principles in Cox v Ministry of Justice [2016] UKSC 10, the local authority was vicariously liable for the acts of the foster parents in the present case because:
- it carried out the recruitment, selection and training of foster parents, paid their expenses, and supervised the fostering: the foster parents were not carrying on an independent business of their own, and it was impossible to draw a sharp distinction between the activity of the local authority and that of the foster parents, thus the abuse was committed by the foster parents in the course of an activity carried on for the benefit of the local authority;
- the placement of children with foster parents created a relationship of authority and trust between the foster parents and children in circumstances where close control could not be exercised by the local authority, rendering the children particularly vulnerable to abuse;
- the local authority exercised a significant degree of control over the foster parents, and it was not necessary that micro-management, or a high degree of control, should exist for the imposition of vicarious liability;
- most foster parents had insufficient means to meet a substantial award of damages, whilst local authorities could more easily compensate the victims of abuse;
- there was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, at much greater cost.
Lord Hughes dissented on the basis that the majority’s approach would extend vicarious liability to family and friend placements under the current statutory regime, and consequently inhibit local authorities’ practice of making such placements; and might also result in undesirable litigation of family activity in the courts. In response Lord Reed disputed the first point, as the parents would not have stood in the same relationship with the local authority.
He added: "It is important to emphasise that the decision that vicarious liability should be imposed in the present case is based on a close analysis of the legislation and practice which were in force at the relevant time, and a balancing of the relevant factors arising from that analysis, some of which point away from vicarious liability, but the preponderance of which support its imposition... It would not be appropriate in this appeal to address the situation under the law and practice of the present day, on which the court has not been addressed, and which would also require a detailed analysis."
He also commented that the courts’ care not to impose unduly exacting standards in the context of family life applied equally to life in foster families.