Line Drawn in Abuse Case - Local Authority Not Liable for Foster Carers

Article

12 December, 2014

A Judgment has been handed down by the High Court confirming that local authorities are not vicariously liable for foster carers nor do they owe a non delegable duty of care.

The Claimant in the case of NA and Nottinghamshire County Council [2014] EWHC 4005 (QB) alleged that she suffered abuse whilst in the care of foster parents in the 1980's. The Claimant maintained that the local authority was responsible for the foster carers' abusive conduct, either on the basis of:

  • vicarious liability (because the relationship of a local authority and foster carer is akin to an employment relationship); or
  • because the defendant owed a non delegable duty of care.

The Claimant's claims was time barred since July 1998, however the Judge disapplied the limitation period finding that a fair trial was possible and that it was fair, just and reasonable to allow the claim to proceed.

Vicarious Liability

The issue was whether the relationship between the defendant local authority and foster parents was sufficiently akin to an employment relationship to render the defendant liable for acts of abuse by the foster parents.

The Judge found that the defendant was not liable on the basis of vicarious liability. The foster parent does not provide family life on behalf of the local authority; rather the local authority promotes the welfare of the child by placing it in a home where it can be expected to benefit from family life. The provision of and participation in family life is not part of the activity of the local authority. Furthermore, the foster parents are not under the control of the local authority.

Mr Justice Males accepted that there was an anomaly between a child in foster care who will not have redress against the local authority on the basis of vicarious liability and a child in a residential home will have, but proceeded to say that this should not be corrected by an unprincipled extension of the law of vicarious liability.

Non- Delegable Duty

For there to be a non delegable duty, the circumstances must be such that the defendant can be taken to have assumed responsibility for the exercise of due care by third parties to whom it delegates the performance of its duty to protect the claimant from harm.

The issue was considered in Woodland v Essex CC [2013] UKSC 66, [2014] AC537 and Mr Justice Males concluded that the five features identified in the Woodland case were present in the case of fostering children in care but significantly, that it would not be fair, just and reasonable to impose a non delegable duty on the defendant local authority for the following reasons:

  • It would impose an unreasonable financial burden on local authorities providing a critical public service.
  • So far as historic abuse is concerned, there is now nothing which the defendant can do to ensure better protection of children who were in its care.
  • In the public interest that local authorities such as the defendant should maintain their capacity to provide fostering services at a time of high demand.
  • A danger that imposition of a non delegable duty would promote "risk averse foster parents", where the local authority would be reluctant to place children with foster parents.
  • There is a fundamental distinction between a placement with foster parents and one in a children's home and claimants should not have the same no-fault remedy against the local authority as a child who is abused in a residential home by local authority employees.
  • Local authorities are likely to be unwilling to take the risk of placing children with foster parents.

Mr Justice Males recognised the importance of the need to protect vulnerable children and that where there was a wrong, the law should provide a remedy. However, he expressed that it was not right to say that an abused child in such instance will have no remedy; there will always be a remedy against the abusers.

Forbes Comment

This Judgment will be welcomed by concerned local authorities. We previously reported on the first instance county court case of BB & BJ v Leicestershire County Council [2014] where the judge in his obiter comments remarked in a similar situation that it would be fair, just and reasonable that liability should attach to foster parents. However, the Judgment in this instance is a High Court case and will therefore take precedence.

For further information please contact Sarah Wilkinson by email sarah.wilkinson@forbessolicitors.co.uk or on 01254 222440

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