Jake Richards writes on ‘Local Authorities and children in foster care: vicarious liability’
Articles | Thu 26th Oct, 2017
A Claimant is sexually abused as a child by foster parents with whom they were placed while in the care of a Defendant Local Authority. Both sides accepted that the Local Authority had not been negligent in the selection of the foster parents. Was the Local Authority liable to the Claimant for the abuse suffered?
This was the question before the Supreme Court in the case of Armes (Appellant) v Nottinghamshire County Council (Respondent)  UKSC 60. The claim had previously been dismissed by the High Court and the Court of Appeal. The Supreme Court established that the Local Authority was not under a non-delegable duty to ensure reasonable care was taken for the safety of children in care with foster parents but did find that the Local Authority was vicariously liable.
The facts of the case were as follows: the Claimant was taken into the care of the Local Authority in February 1985, when she was aged seven. Statutory care orders followed. Between March 1985 and March 1986, she was fostered by a Mr and Mrs Allison. The Judge found that during that period, she was physically and emotionally abused by Mrs Allison. Between October 1987 and February 1988, she was fostered by a Mr and Mrs Blakely. The judge found that during that period, she was sexually abused by Mr Blakely. Mrs Allison employed grossly excessive violence to discipline her. Mr Blakely molested her when bathing her and when she was alone in her bedroom. In both cases, the judge found that the abuse took place within the foster home in the course of day-to-day care and control of the Claimant.
The Supreme Court carefully considered the key case of Various Claimants v Catholic Child Welfare Society  UKSC 56. In that judgment, the last before retirement, Lord Phillips set out five factors to consider when considering whether to find vicarious liability:
- Whether the employer is more likely to have the means to compensate the victim than the tortfeasor and can be expected to be insured against the liability;
- The tort will have been committed as a result of activity being undertaken by the tortfeasor on behalf of the employer;
- The tortfeasor’s activity is likely to be part of the business activity of the employer;
- The employer, by employing the tortfeasor to carry on the activity will have created the risk of the tort being committed;
- The tortfeasor will, to a greater or lesser degree, have been under the control of the employer.
In this case, the Local Authority were under a statutory duty to provide care to children who had been committed to their care. To discharge this duty, they had trained and paid foster parents to care for the children. The Local Authority had a large degree of control over the foster parents in ‘powers of approval, inspection, supervision and removal without any parallel in ordinary life’. After all, it was the Local Authority, not the foster parents, that possessed parental powers in relation to the children. The level of control need not be high:
‘…it is not necessary for there to be micro-management, or any high degree of control, in order for vicarious liability to be imposed’
Therefore, foster parents could not be said to have been ‘carrying on an independent business of their own’. Citing the case of Cox v Ministry of Justice  UKSC 10, the care foster carers provided was ‘integral’ to the organisation of the Local Authority’s care services. The Court felt that it was impossible to distinguish the care given by foster carers and the Local Authority’s duty to care to for children in their care.
However, the judgment was clear, for now, that vicarious liability would not extend to family placements for children in care which, in a dissenting judgment, Lord Hughes feared would stifle such arrangements in the family courts. Lord Reed distinguished such arrangements:
‘[parents or family members] would have been carrying on an activity (raising their own child) which was much more clearly distinguishable from, and independent of, the child care services cared on by the Local Authority than the care of unrelated children by foster parents recruited for that purpose’.
However, questions remain as to the scope of vicarious liability in public family law. For example, would vicarious liability extend to Local Authorities with Interim Supervision Orders regarding children that remain in their care?
The judgment represents a change in the position. The question of whether local authorities are vicariously liable for torts committed by foster parents against children placed with them while in care was previously considered by the Court of Appeal in S v Walsall metropolitan Borough Council  1 WLR 1150, where the court found that the foster parents were not acting as agents of the local authority, and therefore vicarious liability was not made out.
For Local Authorities, this judgment should act as a warning to reinforce their recruitment, monitoring and investigations with regard to foster placements.
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