Obiter comments in a High Court judgment may lead the way for the Woodland duty to be extended to foster care in the future, writes Sarah Wilkinson.
In the case of BB & BJ v Leicestershire County Council  the court considered a claim by two sisters who alleged that they had suffered serious sexual abuse by foster parents whilst in the care of the local authority in the 1960s. Following adoption by those same foster parents, they alleged that the sexual abuse escalated to include repeated rape.
The sisters claimed damages and the court was asked to consider three distinct causes of action:
- the systemic negligence by the local authority for the management of their placement with the foster carers;
- the vicarious liability for the abuse of the foster parents; and
- the breach of a non-delegable duty of care by the local authority.
The High Court refused to exercise its discretion to dis-apply the limitation period and the claim was therefore dismissed. In its obiter judgment, the High Court found that the local authority could not be vicariously liable for the abuse of the foster parents as the relationship was not sufficiently akin to employment for such liability to arise. However, the High Court did find for the first time that the non delegable duty of care established in Woodland v Essex County Council  could be extended to cover a claim by former foster children alleging abuse by their foster carers.
Whilst acknowledging the ever-increasing burden placed on local authorities, HHJ Godsmark remarked that the more compelling argument is that victims of child abuse should have legal recourse in the civil courts for the harm caused to them. He commented: "Whether the perpetrator is a local authority employee or foster parent chosen by the local authority should not make a difference. Where a local authority takes control of the child, even inadvertently, in the hands of an abusive foster parent it is fair, just and reasonable for that child to be able to look to the local authority for redress." Accordingly he ruled that a non delegable duty of care was owed by a local authority to a child placed by it with foster parents.
If the claim had not been disallowed for limitation then the defendant local authority would inevitably have appealed the decision. Following this obiter decision, claimants will continue to plead that local authorities have been vicariously liable and in breach of a non delegable duty in similar cases. It therefore seems likely that it is a matter of time before a further decision from the Courts is provided to offer further guidance on this issue.