Councils face rise in claims after Supreme Court rules on foster abuse liability

Local authorities face a significant increase in claims after a majority of the Supreme Court ruled that councils can be held vicariously liable for wrongful actions of foster parents to a child in foster care.

However, in Armes v Nottinghamshire County Council [2017] UKSC 60 the court also found that councils do not owe a child in foster care a non-delegable duty.

The claimant, NA, was in the care of the council from the ages of seven to 18. She had been placed with two sets of foster parents: Mr and Mrs A between March 1985 and March 1986 and Mr and Mrs B between October 1987 and February 1988.

At first instance the judge allowed the claim to proceed out of time and found that the claimant had been physically and emotionally abused by Mrs A and sexually abused by Mr B.

However, her claim in negligence, and her allegations that the local authority owed her a non-delegable duty, or should be fixed with vicarious liability failed.

The claimant appealed the non-delegable duty and vicarious liability allegations. Those allegations were dismissed by the Court of Appeal and were appealed to the Supreme Court. The hearing took place in February 2017.

On the question of vicarious liability, the Supreme Court applied the principles set out in Cox v Ministry of Justice [2016] UKSC 10. It found by four to one (Lord Hughes dissenting) that Nottinghamshire was vicariously liable in this case because:

• Integration and business activity: The local authority “recruited, selected and trained persons who were willing” to act as foster parents, and inspected their homes before any placement was made. The council paid the foster parents allowances to defray their expenses, and supervised the fostering. The local authority involved the foster parents in their decision-making concerning the children, and required them to co-operate with social workers. In light of these and other circumstances, the foster parents could not be regarded as carrying on an independent business of their own, and it was impossible to draw a sharp distinction between the activity of the local authority and that of the foster parents. “Although the picture presented is not without complexity, nevertheless when considered as a whole it points towards the conclusion that the foster parents provided care to the child as an integral part of the local authority’s organisation of its child care services. If one stands back from the minutiae of daily life and considers the local authority’s statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority….. and that of the foster parents….. In these circumstances, it can properly be said that the torts committed against the claimant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority.”
• Creation of risk: The local authority’s placement of children with foster parents created a relationship of authority and trust between the foster parents and children in circumstances where close control could not be exercised by the local authority. This rendered the children particularly vulnerable to abuse. “…..[If] the public bodies responsible for decision-making in relation to children in care consider it advantageous to place them in foster care, notwithstanding the inherent risk that some children may be abused, it may be considered fair that they should compensate the unfortunate children for whom that risk materialises, particularly bearing in mind that the children are under the protection of the local authority and have no control over the decision regarding their placement. In that way, the burden of a risk borne in the general interest is shared, rather than being borne solely by the victims.”
• Control: The local authority exercised a significant degree of control over both what the foster parents did and how they did it, in order to ensure that the children’s needs were met: it exercised powers of approval, inspection, supervision and removal. “It is not necessary for there to be micro-management, or any high degree of control, in order for vicarious liability to be imposed.”
• Ability to pay damages: Most foster parents had insufficient means to meet a substantial award of damages and were unlikely to have (or be able to obtain) insurance against their own propensity to criminal behaviour. “The local authorities which engage them can more easily compensate the victims of injuries which are often serious and long-lasting.”
• There was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, at much greater cost. “If….. there is substance in the floodgates arguments advanced on behalf of the local authority – if, in other words, there has been such a widespread problem of child abuse by foster parents that the imposition of vicarious liability would have major financial and other consequences – then there is every reason why the law should expose how this has occurred.”

On the question of whether there was a non-delegable duty, Lord Reed, who gave the leading judgment, concluded that the proposition that a local authority was under a duty to ensure that reasonable care was taken for the safety of children in care, while they were in the care and control of foster parents, was “too broad”, and that the responsibility with which it fixed local authorities was “too demanding”.

He therefore reached the same conclusion as the Court of Appeal on this aspect of the case, although for somewhat different reasons.

Law firm Browne Jacobson, which acted for Nottinghamshire, said the ruling on vicarious liability meant local authorities were liable even though they were not themselves at fault, for injuries to foster children caused by the negligence or deliberate acts of foster parents.

In addition to predicting an increase in claims, relating to both current and historical foster placements, it warned that councils might now face the argument that foster parents should be classed as “workers” with attendant employment rights such as holiday pay and sick pay and the like.

Browne Jacobson’s Ceri-Siân Williams said: “Abuse of children is never acceptable and it is only right that the perpetrators of abuse and those who negligently allow it to happen should be held to account. But what this case was about was whether, when a foster child is abused without any negligence or fault on the part of a local authority, that local authority should nonetheless be liable for the abuse.

“Social workers have a very demanding role and it is reassuring that, in this case, the Judge at first instance found that the social workers had not been negligent in the social work they undertook with Ms Armes or her family, and had not been negligent in the assessment, approval, monitoring, or supervision of the foster placements.

“We will now seek to work closely with Ms Armes’ representatives to resolve the outstanding issues in the case as quickly as possible.”

Peter Garsden, President of the Association of Child Abuse Lawyers and head of the specialist Abuse Claims department at claimant law firm Simpson Millar, said: "This ground-breaking decision finally imposes a legal liability on local authorities for acts of abuse committed by foster parents. This is long overdue and a welcome extension of the law to protect vulnerable children.

"Local authorities have for many years argued that they could not be held responsible for the wrong done by foster carer, despite that fact that these are contracted, paid, trained and supervised by them. If abuse was committed by a care worker in a children's home, the local authority would, however, always be held responsible. This is entirely illogical and the Supreme Court has finally recognised that.”

Garsden added: “Without doubt, we will see a ground swell of this type of cases which is only right. Justice is long overdue for those who suffered the most horrendous and crippling abuse as children, under the watch of local authorities."