Liability for abuse by foster carers

Paul Stagg analyses the recent Supreme Court ruling on the liability of councils for wrongful actions of foster parents to a child in foster care.

The recent decision of the Supreme Court in Armes v Nottinghamshire County Council [2017] UKSC 60 overturns authority of the lower courts, going back over thirty years to S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150, and establishes that local authorities may be vicariously liable for foster carers who commit acts of abuse against children placed in their care by such authorities.

The facts

The claimant, A, was born in 1977 and was taken into care in 1985 at the age of seven. She alleged that at her first foster placement, which was in a family group foster home for about a year, she was subjected to physical and emotional abuse by the foster mother. After a period of 19 months during which she returned to live with her birth mother, she was placed for four months in a second placement, where she complained of having been sexually abused by her foster father. A alleged that the local authority had been negligent in its decisions as to removal from her mother’s care and the making of the placements, and that it was liable for the physical and sexual assaults committed by her foster carers.

At first instance, Males J [2014] EWHC 4005 (QB), [2015] PTSR 653 rejected the claims in negligence. He accepted A’s evidence that she had been abused by her foster carers, but decided that the local authority neither owed a non-delegable duty of care to her to ensure that she was kept safe, and was not vicariously liable for the assaults. A appealed against the latter decisions, but her appeal was dismissed by the Court of Appeal [2015] EWCA Civ 1139, [2016] QB 739. The reasoning of the three judges differed, but they were unanimous in their decision that the claimant’s claims failed. A made a further appeal to the Supreme Court and succeeded by a majority of four to one on the basis of vicarious liability for the actions of the foster carers.

The decision of the Supreme Court: non-delegable duty

A ‘non-delegable’ duty of care imposes a higher duty on a defendant. Lord Reed, giving the judgment of the majority, described it as a duty “not merely to take personal care in performing a given function but to ensure that care is taken”. They “cannot be discharged merely by the exercise of reasonable care in the selection of a third party to whom the function in question is delegated”: at [31]. They “are exceptional, and have to be kept within reasonable limits”: at [32]. In the leading case of Woodland v Essex County Council [2013] UKSC 66, [2014] AC 537 at [23], Lord Sumption spelled out criteria which could be used to identify certain types of non-delegable duty. They included that the defendant had a “positive duty” to protect the claimant from harm, and that duty was delegated to a third party.

In Armes, Lord Reed identified the issue as to whether the duty owed to A was “one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements”: at [37].

In rejecting A’s argument that a non-delegable duty of care was owed, Lord Reed pointed out that s10 of the Child Care Act 1980 gave a local authority “the same powers and duties .... as his parent or guardian would have ....”. Although a parent could owe a child a duty to take reasonable care, no case established that a parent owed a duty to ensure that care was taken by anyone to whom they were entrusted: at [41]-[42]. The language of ss21-22 of the 1980 Act suggested that the local authority’s duty was not to perform the function of providing daily care, but rather to arrange for its performance: at [46]-[48]. He concluded that it would be “too demanding” to impose a non-delegable duty on a local authority: at [49]. Lord Hughes, dissenting in the result, agreed: at [75].

The decision of the Supreme Court: vicarious liability

Lord Reed referred to the earlier decisions in Various Claimants v Catholic Child Welfare Society [2012] UKSC 45, [2013] 2 AC 1 and Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 660 at in which the Supreme Court had reviewed the grounds on which vicarious liability could be imposed in relation to relationships akin to employment. In the former case, Lord Phillips had identified five incidents of the employment relationship which made it fair to impose vicarious liability: at [19].

(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.

Lord Reed concluded that, given the inspection, training and monitoring provided by the local authority, it was not possible to say that foster parents could be regarded as carrying on an independent business of their own. They were “an integral part of the local authority’s organisation of its child care services”: at [59]-[60]. The risk of abuse was inherent in a placement with foster carers: at [61]. The local authority exercised sufficient control over the provision of care by foster parents, and was in a better position to provide compensation: at [62]-[63]. Lord Reed disagreed with a distinction drawn by the Court of Appeal between control over the ‘big’ decisions in a child’s care and day-to-day family life: at [64]-[65]. He also denied that vicarious liability would ‘open the floodgates’ and indicated that it was appropriate to encourage proper vetting of foster carers: at [68]-[70].

Lord Hughes, dissenting, expressed concern that the logic of Lord Reed’s reasoning would lead to a conclusion that if the local authority placed children in its care with parents or other family members, they would be vicariously liable for acts of abuse committed by them: at [85]-[87]. He denied that there was a sufficient level of control over the day-to-day lives of children to warrant the imposition of vicarious liability for acts of abuse taking place during day-to-day life: at [87]-[88]. He expressed concern that liability would inhibit placement with foster parents and would open the door to liability for negligent, rather than just deliberate acts on their part: at [89]-[90].

Implications and consequences

Lord Reed, in his judgment, pointed out that the court had only received submissions on, and had only considered the position as it stood under the law prior to the Children Act 1989 coming into force: at [72]. Some of the present law was reviewed by Lord Hughes in his dissenting judgment. It is, however, unlikely that the differences between the law applicable to A’s claim and the present law would make a difference; the local authority retains control over broadly the same aspects of foster care as it formerly did. In some areas, the controls have been tightened and enhanced. The analysis of Lord Reed can therefore be expected to be equally applicable to cases in which the relevant events occurred after 1991.

Lord Reed answered the concern of Lord Hughes about potential liability for the acts and omissions of parents and other family members with whom a child was placed at [71]-[72]. He pointed out that the parents would not have been recruited, selected and trained to enable the discharge of the local authority’s functions. Their activity in raising their own child would be “much more clearly distinguishable from” the local authority’s child care services. Accordingly, it would seem doubtful that a court would extend the local authority’s vicarious liability to a situation where the child is placed with a parent or family member.

There remain areas where the application of the Supreme Court’s reasoning is a matter of uncertainty. For example:

• Can it apply with the same force to a situation where the local authority has accommodated a child by agreement with parents under s20 of the Children Act 1989, where the parent has the right to terminate the agreement at any time?
• Will it make a difference if the local authority engages a fostering agency to find foster parents? In such a case, the responsibility for selecting, training and overseeing the work of foster carers is divided between the local authority and the fostering agency: see the Foster Services (England) Regulations 2011 SI No 581. Will the fostering agency be vicariously liable for the actions of the foster carers in place of, or as well as, the local authority?
• If a local authority chooses to place a child in a privately-run children’s home, will it be vicariously liable for abuse by staff as it would be in a home where it employed the staff?

It remains to be seen whether the imposition of vicarious liability has an impact on social work practice, through inhibiting local authorities from placing children with foster carers recruited and overseen by themselves. Lord Hughes and judges in the courts below expressed such fears. The response of the majority, that it might instead encourage more rigorous vetting of foster carers, seems rather unrealistic in an age of ongoing local government austerity. It would undoubtedly be a disservice to children in care if the unintended consequence of this decision was to reduce their opportunities to experience normal family life.

Paul Stagg is a barrister at 1 Chancery Lane.