Vicarious liability extended: liability of local authorities for abuse by foster carers.
Armes Nottinghamshire County Council
Supreme Court 18 October 2017
As the dust settles on the Supreme Court's decision in Armes v Nottinghamshire County Council, extending the liabilities of local authorities to encompass compensating children in care for abuse perpetrated by a foster parent, David Weir considers the key findings and implications.
The Claimant was born in 1977 and from the age of seven, alternated between periods living with her mother and her abusive and violent partner and a variety of foster placements, followed by a number of residential children’s homes. The focus of the case was abuse she suffered during two particular foster placements.
Whilst the local authority had not been negligent in relation to the foster care provided, specifically the selection, supervision or monitoring of the foster parents, the Claimant asserted that it was still liable on grounds of vicarious liability and breach of non delegable duty, two doctrines by which the courts have been developing the scope of civil liability for abuse claims. The claim was dismissed by the High Court and the Court of Appeal with both refusing to impose no fault liability on the local authority in relation to the abuse.
Supreme Court Judgment
The Supreme Court, however, allowed the Claimant's appeal and whilst unanimously rejecting the argument that a local authority could owe a non-delegable duty in relation to foster parents, it found by a majority of 4:1 that the local authority was vicariously liable for the abuse committed by the foster parents.
Lord Reed gave the lead judgment (Lady Hale, Lords Kerr and Clarke agreeing) with Lord Hughes giving a strong dissenting judgment.
Non-delegable duty of care
Lord Reed defined non-delegable duty as an additional duty on a body/individual, not just to take care itself, but also to ensure that care is taken by others and - whilst worryingly stating that he was not able to agree that such a non-delegable duty could not be breached by a deliberate wrong i.e. an act of abuse as opposed to negligence - he concluded that this additional duty is not owed by local authorities in relation to care provided by foster parents as this would be 'too broad' and 'too demanding'.
In reaching this decision he drew an analogy between the role and duties of a local authority and those of a parent, pointing out that it is well accepted that a parent does not owe this additional duty. He also focused on the idea that the duty a local authority has is to arrange, as opposed to perform, the provision of daily care and that in making a foster placement it discharges rather than delegates the duty it owes in this respect.
Lord Reed considered, however, that a 'more fine-grained approach' should be taken in relation to vicarious liability and after a consideration of the relevant factors to be taken into account, as set out in the decisions in the Christian Brothers abuse case (Various Claimants v Catholic Child Welfare Society  UKSC) and Cox v Ministry of Justice  UKSC, concluded that they pointed to the imposition of vicarious liability.
His analysis centred upon the following points:
- when considering the respective activities of the local authority and the foster parents, the latter could not be regarded as an independent business, that the foster parents provided care as an integral part of the local authority's child care services and it was impossible to draw a sharp line between their respective activities;
- that the abuse was committed in the course of an activity carried out for the benefit of the local authority and that, as the local authority's placement with foster parents creates the risk of abuse, so the local authority should compensate in the event that this risk materialises;
- the local authority selected, trained, monitored and had the power to remove foster parents, as well as making decisions as to medical treatment, education, holidays etc. for the children in foster care and that is was important not to overstate the extent to which external control was absent or exaggerate the extent of control necessary to justify imposing vicarious liability, micro-management or any high degree of control not being necessary;
- the local authority but not the foster parents had the means to pay a damages award.
Lord Reed dismissed the idea that a vicarious liability might discourage fostering in favour of residential home placements, saying that a vicarious liability already exists in respect of residential home employees, the costs of fostering are lower than those of a residential home placement and that the two together would preclude any such disincentive.
He also rejected any potential 'floodgates' argument saying that if there is such a widespread problem then such exposure might encourage more adequate vetting and supervision.
Lord Hughes' dissenting judgment
Lord Hughes was the strong dissenting voice on vicarious liability. He acknowledged that there might be considerable force at first sight in the proposition that it would be fair to impose vicarious liability for foster parents as local authorities already have a similar vicarious liability for children's home employees. He concluded, however, that once the nature of fostering was considered, the extension of vicarious liability to it was not called for or justified.
He considered that if vicarious liability were to apply to 'ordinary' foster parents then it would also have to apply to parental, family and friends placements, that it would not be fair, just or reasonable to impose vicarious liability for the torts of parents and that it would be difficult to distinguish parents from other family members or close friends. He said that a local authority did not manage the daily lives of or bring up fostered children and that he feared that imposing either a non-delegable duty or vicarious liability in relation to foster parents would inhibit fostering and family/friends placements. He also warned that imposing vicarious liability for foster placements would not just generate liability for abuse but also for allegedly negligent acts or omissions by foster parents generally and 'family activity' litigation.
Lord Reed, addressing these concerns, drew a distinction between the roles of foster parents and parents saying that, applying the same approach, the court would not have imposed vicarious liability on the local authority had the abuse been perpetrated by the parents as they would not have been in the same relationship with the local authority as the foster parents, having not been recruited, selected or trained by the local authority to enable them to discharge its child care function but being clearly distinguishable from and independent of this. He also stated that this decision was concerned only with the legislation and practice in force at the relevant time and that the court’s care not to impose unduly exacting standards in the context of family life applied equally to life in foster families.
Consequences and Implications
The abuse in question in this claim took place between 1985 and 1988 and the decision theoretically relates and is limited to the legislative regime in place at that time. It would be naïve, however, to expect that a different approach would not be taken to later or contemporary claims. The reality is that this decision opens the door to claims against local authorities for abuse perpetrated by foster parents, regardless of the time frame or whether there was any breach by the local authority in question.
Whilst Lord Reed specifically distinguished foster parents from ordinary/actual parents, the concerns expressed by Lord Hughes show there is a grey area of family/friend placements and also a risk of claims for abuse by such family members/friends as opposed to independent foster parents, being attempted in the future.
There must also be a concern that further categories of non employees, for example volunteers, could in due course be drawn under the umbrella of vicarious liability as well.
At the same time, whilst Lord Reed may not believe this finding will discourage future fostering, some form of impact is inevitable. Local authorities and insurers will want to contain future risks by re-evaluating and considering increased vetting and monitoring practices. This could prove problematic given current public spending issues and could, ironically, lead to the micro-management considered not necessary for vicarious liability by Lord Reed and undermine the fostering process. Although it may be more expensive and less preferable in general terms to provide care in a residential home, local authorities might nonetheless consider they can exercise greater control/monitoring of these and employees, and thus provide greater protection/prevention, than they can with fostering.
A further point of very significant concern is that, whilst the court found there was no non-delegable duty and did not extend the non-delegable duty doctrine per se, Lord Reed did question the distinction previously maintained in this respect between negligent acts and deliberate torts, saying he was not able to agree that a non-delegable duty could not be breached by a deliberate wrong. The position has been that a non-delegable duty is only breached by negligence by the party to whom the duty was delegated as opposed to, for example, an act of abuse by an employee of this 'delegee'. Absent negligence, the delegating party would not be liable. If this distinction is dispensed with, however, then the delegating party would be liable for such an act of abuse in any event, regardless of whether there has been any negligence.
The potential impact of this can be seen by considering residential home placements. In a situation where a child has been placed by a local authority in a home run by a third party and is abused by an employee of that third party, but without any negligence on the part of the third party, until now the local authority would not be liable. Removing the distinction between negligent acts and deliberate torts as Lord Reed suggests would, however, mean that the abuse by the employee breaches the non- delegable duty in any event, rendering the local authority liable also in this situation.
Lord Reed's comment therefore creates a risk of yet more extensions of local authority liability in due course. It also creates an issue in relation to current claims. Whilst until now a local authority in the situation above, for example, would refute any claim presented, it may now not wish to do so, notwithstanding there has been no decision specifically on the point, given that this could ultimately lead to a trial on the issue of the negligence requirement and a specific, adverse finding on this point.
The Supreme Court's decision has not only, therefore, created one new area of local authority liability in respect of abuse perpetrated by foster parents. It has also paved and lit the way for many more.
The potential for increased claims now and in the future is dramatic.
For further information please contact David Weir, Director David.Weir@dwf.law
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.