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Does a local authority have a non-delegable duty for abuse by foster carers?

BB & BJ v Leicestershire County Council
Nottingham County Court
6 June 2014

Andrea Ward examines this first instance decision involving historic abuse of two claimants by foster parents when they were girls. Although the judge refused to exercise discretion under s.33 of the Limitation Act 1980 and the claims failed, he commented that he would have found that the local authority owed a non-delegable duty of care in respect of abuse by the foster carers. Whilst only an obiter decision, the case provides a useful steer as to how claimants will pursue their arguments in the future.

Facts

BB and BJ (the claimants) were fostered with their siblings by Mr and Mrs L in the 1960s. They were removed three years later due to the foster carers’ unusual reaction to perceived sexualised behaviour of BB and her brother. In early 1970 BB and BJ and their younger sister were placed back with Mr and Mrs L in a private arrangement between Mr and Mrs L and the claimants’ mother. Mr and Mrs L applied to adopt the three girls and this was granted by the court in October 1970. Mrs L died in 2008 and the police investigated due to concerns over her death and interviewed BB and BJ who disclosed sexual, physical and emotional abuse by Mr and Mrs L. Following the Supreme Court ruling in Woodland v Essex County Council [2013], the resulting claim, initially for professional negligence against the social workers involved, was amended to plead a breach of the non-delegable duty of care upon the local authority for the foster carers. There was also a further amendment to include an allegation of vicarious liability by the local authority for the actions of the foster parents.

Findings

His Honour Judge Godsmark Q.C refused to disapply the limitation period under s.33 and the claims therefore failed.

The Judge did though comment that whilst the local authority was not vicariously liable as the relationship between foster carers and the local authority was not sufficiently akin to employment for such liability to arise, there was a non-delegable duty of care.

He found that in relation to a child which it takes into care, the local authority has a duty to take reasonable care for the safety of that child. The defendant relied on the Australian High Court case of New South Wales v Lepore [2003] to argue that deliberate abuse by a foster carer would not be a breach of a duty to take reasonable care but the judge did not accept this.

Non-delegable duty: The Woodland criteria

The five criteria for non delegable duty in Woodland were considered:

  1. The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury.

  2. There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant.

  3. The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

  4. The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

  5. The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

The defendant agreed that the first three criteria were met.

The judge found that the fourth criterion was met in that by placing a child with foster carers, the local authority passes responsibility for the child to them. He did not like the defendant’s argument that the foster carers are not performing a function which is an integral part of the duty assumed by the local authority i.e. a local authority cannot provide for a family life but must arrange for its performance. He said that part of the bundle of duties assumed by the local authority is the duty to take reasonable care for the safety of the child and to protect them from harm.

The final criterion was met because, by abusing a child, a foster carer is in breach of that duty to protect which is the same duty assumed by the foster parent and passed to the foster carers.

He then considered if it was fair, just and reasonable to impose the duty. He looked at difficulties that may be faced in the future in getting insurance and the fact that a local authority would have a duty where a parent would not. He was very concerned that most would struggle to understand that there would be redress for children placed in a local authority’s children’s home and abused by a local authority employee but not for those placed with a foster carer. He felt it more compelling that victims of abuse should have redress against the  local authority which took the step of taking control of the child to protect it. 

Comment

  • It is very likely that the judgment would have been appealed had the claims not failed for limitation. On any appeal, the defendant’s argument would surely have been that due consideration was not given to Lord Sumption’s findings in Woodland when he said that the local authority will not be liable for the negligence of independent contractors where “their own duty is not to perform the relevant function but to arrange for its performance”.

  • We are now seeing foster carer claims pleading both vicarious liability and non-delegable duty and this case gives a steer as to how claimants will pursue their arguments in the future.

  • There is likely to be a decision soon from a higher court in a case which succeeds on limitation which will no doubt provide further guidance.

Contact

For further information contact Andrea Ward, Partner, on +44 (0)191 233 9761

By Andrea Ward

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.

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