Court of Appeal allows claim against council to proceed for vicarious liability for acts of foster carer who was also relative of child

The Court of Appeal has ruled that the relationship between a local authority and a foster carer who is an uncle can give rise to vicarious liability.

Jane Matthews, solicitor and head of the child abuse compensation department at law firm Jordans, handled the case against Barnsley Metropolitan Borough Council for client DJ.

He was 10 years old when abandoned by his parents and Barnsley arranged for him to live with his maternal aunt and uncle, Mr and Mrs G, whom he had not previously met.

They were later approved as foster carers and DJ was received into the care of the local authority under section1 of the Children’s Act 1948 in August 1980.

DJ claimed he was sexually abused by Mr G between 1980 to 1986 and said Barnsley was vicariously liable for the sexual abuse and assaults.

Barnsley denied the allegations, raised a liability defence and brought a Part 20 claim against Mr G seeking an indemnity or contribution. Mr G denied sexual abuse.

At a preliminary hearing on vicarious liability, Barnsley argued, relying on the authority of Armes v Nottinghamshire that because the Gs were DJ’s maternal relatives the relationship between them and the local authority was analogous to that of parents and the Gs were carrying out an activity which was distinguishable from, and independent of, the child care services carried on by the local authority for the care of unrelated children by recruited foster parents.

DJ argued that, unlike the actions of parents caring for their own child, the Gs caring for him was neither distinguishable from nor independent of local authority child care services.

In July 2021 Mr Recorder Myerson QC found in favour of Barnsley and an appeal in 2023 was unsuccessful.

The single ground argued in the Court of Appeal was that the recorder and judge were wrong to conclude that the relationship between the local authority and Mr G was not one capable of giving rise to vicarious liability.

It was argued that DJ’s residence with the Gs should be seen as falling into three phases.

The first was from January to August 1980 when he was placed in a temporary informal family placement but was not ‘in care’ and the local authority had no statutory responsibility for him.

A second phase ran from August 1980 to November 1983 when a care order was made and the Gs were approved as foster carers.

From 1983, Barnsley assumed parental rights, marking the start of a third phase until DJ reached adulthood.

It was argued that In the second and third phases DJ was in Barnsley’s care and the Gs were looking after DJ as foster carers and so the relationship between the Gs and the local authority was akin to employment.

The Court of Appeal heard the relationships which should be considered when determining whether there was vicarious liability in this case were the those between the local authority and DJ and between the local authority and the Gs, not the relationship between DJ and the Gs the child and the foster parents.

The appeal judges said: “We therefore disagree with the judge that the circumstances in which the Gs came to be involved with DJ was indicative that they were carrying on their own activity distinct from the statutory obligations of the local authority.

“We also disagree with the judge’s view that the social worker’s assessment of risk arising out of Mr G’s previous convictions for sexual offences was further evidence which pointed away from a finding of a relationship giving rise to vicarious liability.

“The social worker seems to have assumed that Mr G posed less risk to his wife’s nephew than to another child and that he could be approved as a foster carer for DJ although not for any other child.

“This assessment of risk is based on the relationship between the Gs and DJ made in the course of the fostering assessment prior to the approval of G as foster carers has no bearing on the relationship between the Gs and the local authority after they had been approved as foster carer and DJ had been received into care.”

Ms Matthews said: “This judgment clearly states that the circumstances or reasons as to why the Gs became family foster carers are not relevant issues when determining whether the relationship is akin to employment and confirms that the central relationships to be considered in this case are the relationships between the local authority and DJ and the local authority and the Gs.

“Whilst the judgment is clear that this decision has been reached on the specific facts of this case and it not a general rule that a local authority will always be held vicariously liable for torts committed by foster carers who are related to the child, it is an important and significant judgment in this area."

The judgment was given jointly by Lady Justice Carr, Lord Justice Bean and Lord Justice Baker.

Mark Smulian