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Borough Council is not vicariously liable for abuse inflicted on the Claimant by an uncle who was a de facto foster parent

DJ v Barnsley Metropolitan Borough Council & AG (DJ) [2023] EWHC 1815

On 18 July 2023, Mrs Justice Lambert handed down her judgment in DJ v Barnsley Metropolitan Borough Council & AG (DJ). This appeal case evaluated whether a Local Authority can be held vicariously liable for the tortious acts committed by family members turned foster carers.

Background/Facts

Arising from the breakdown of the Claimant's parent's marriage, he was placed by the Defendant in voluntary care with the G family (maternal aunt and uncle) on 1 August 1980. DJ lived with the G family from aged nine until his late teens. It is important to note that prior to Christmas 1979, the Claimant has never met the G family and did not know of their existence.

Social workers carried out home visits and fostering assessments including lengthy interviews. The couple were continued to be regularly monitored by social workers. The G's had advised that they would not have taken on the role, and they would not have fostered DJ had he not been a relative. The couple were "not recruited for the role….or selected by the local authority" and they were not "trained for the role."

The case was closed in July 1988, and it was noted that DJ wished to stay with the G's. The G family became the Claimant's foster parents and he remained with them until his late teens. During this time, he alleges he was sexually abused by Mr G. The Claimant alleged that the Defendant was vicariously liable for the acts of AG.

It is established that, in general, as per the judgment in Armes v Nottingham Council [2017] UKSC 60, the relationship between a Local Authority and foster carer is sufficiently closely akin to the relationship between employer and employee to justify the imposition of vicarious liability on the local authority for the tortious acts by the foster carer. Barnsley MBC though contended that the G's, as maternal relatives of DJ, stood in a relationship to him, equivalent to that of parents in whose care a cared-for child had been placed by a local authority.

Appeal

The appeal judge confirmed that in potential "akin to employment" cases, the Court should contemplate whether the family's care of the Claimant was fundamental to the business of the Defendant Local Authority, or whether it was appropriately distinct from the activities of the Defendant to avoid the imposition of vicarious liability. These points are outlined by Lord Phillips in The Catholic Child Welfare Society and Others v Various Claimants and the Institute of the brothers of the Christian School and Others (2012) UKSC 56.

It is common ground that there are two stages to consider in determining vicarious liability. Stage 1 is concerned with the relationship between the defendant and the

tortfeasor. Stage 2 is concerned with the link between the tortious act and that relationship.

The appeal judge dismissed the Claimant's appeal, concluding that the foster carers in question (the Claimant's Aunt and Uncle) were engaged in an activity which was more affiliated to that of parents bringing up their own child and that the activity was suitably different from that of the Local Authority exercising its statutory duty. It was found in this case therefore that the Defendant was not vicariously liable for the sexual abuse perpetrated by the Claimant's uncle/foster carer.

Summary

This is a valuable judgment for both local authorities and their insurers. Although, it is important to bear in mind that each case will be assessed on the precise facts of the case, and on the information/records to hand. It suggests that Judges will be hesitant to impose liability on councils for abuse by family members who are de facto foster parents.

For more information contact Natalie Argent in our Care department via email or phone on 01254 222441. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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