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  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  UKSC 10. It found by four to one (Lord Hughes dissenting) that Nottinghamshire was vicariously liable in this case because:
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."