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  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:
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.
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.
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  UKSC 66,  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:
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.
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  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.