19 October, 2017
The Supreme Court finds local authority vicariously liable for abuse committed by foster parents in the 1980's.
The claimant Natasha Armes was placed in the care of the Nottingham County Council from the age of 7. Between 1985 and 1988 she suffered physical, emotional and sexual abuse whilst in the care of foster parents. Even though the local authority was not negligent in the selection or supervision of the foster parents the Supreme Court was asked to consider whether the local authority was liable to the claimant for the abuse she suffered, either:
The Court found that the local authority are not under a non-delegable duty to ensure reasonable care is taken for the safety of children while they are in the care and control of foster parents. Lord Reed commented that to impose a non-delegable duty on local authorities would be "too broad" and "too demanding".
The Court found that it was fair, just and reasonable to extend the doctrine of vicarious liability to allow the local authority to be held vicariously liable for the acts of the foster parents against the Claimant. Vicarious liability imposes strict liability on a party even where they have not been at fault.
The Court closely examined the case of Cox v Ministry Justice  UKSC10 and concluded that the relationship between the local authority and the foster parent can give rise to vicarious liability. Although it was recognised that this a complex situation, when considered as a whole foster parents provide care to the child as an integral part of the local authority's organisation of its child care services. The abuse committed against the claimant was committed by the foster parents in the course of an activity carried on for the benefit of the local authority.
The Supreme Court allowed the appeal by a majority of 4-1. Interestingly, Lord Hughes gave a dissenting judgment on the issue of vicarious liability remarking that a local authority looking after a child is put by statue in a position analogous to that of a parent. He notes that a parent does not owe to his or her children an obligation to guarantee that others who may look after that child will be not be carelessly or deliberately abusive and in his view, nor should a local authority.
The extension of vicarious liability to hold local authorities liable for the acts of foster parents will have far reaching consequences for all local authorities. An increase in litigation arising from historic and future abuse is inevitable. The Judgment imposes strict liability on local authorities regardless of the steps they have taken to prevent abuse from taking place.
An interesting point arises from the use of external foster agencies by local authorities. Lord Reed comments that foster parents do not carry out an independent business of their own, to illustrate this he refers to the fact that local authorities are responsible for recruiting, selecting and training foster parents. However, where an external agency has performed this function on behalf of a local authority it may be possible to argue that some responsibility ought to be shifted.
The Judgment is also likely to influence the way local authorities place children in their care. An unintended consequence of this decision may result in placement panels adopting a more cautious approach to placements preferring to place children with family or connected persons which often carry a greater risk of breaking down or choosing to place the child in residential care to avoid the imposition of strict liability.