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Local authority: no vicarious liability or non-delegable duty owed in respect of foster parents’ acts

NA v Nottinghamshire County Council [2014]
High Court
2 December 2014

In this first instance decision, the High Court found there to be no negligence on the part of a local authority in respect of failure to remove a child from an abusive home environment nor any vicarious liability or non-delegable duty of care owed for abuse by foster parents. Andrea Ward highlights the key issues and comments on the effect for local authorities.

Facts

The claimant was born in 1977 and from the age of 7, 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. She claimed that:

  • she was physically and emotionally abused by her mother and her mother’s partner and the local authority failed in its common law duty of care to remove her from her mother’s care or put in place measures to protect her;

  • she suffered physical and emotional abuse at the hands of foster parent Mrs A and was sexually abused by foster parent Mr B and suffered physical abuse from Mrs B for which the local authority was responsible in law;

  • the local authority should be held vicariously liable for abuse by the foster carers, in the same way that the local authority would be liable if the abuser were a local authority employee.

  • the local authority owed her a ‘non-delegableduty of care for the period she was fostered (i.e. where a defendant not personally at fault will be liable for the negligence of a third party with whom it has neither an employment relationship nor a relationship akin to employment.)

There was a limitation issue as the action was time barred since July 1988. 

Findings

Negligence

The claimant’s claim that the local authority’s social workers had negligently failed to remove her from her family home, failed on the facts when considered by reference to the professional social work standards of the time.  The evidence of the local authority’s social work expert was strongly preferred. 

Vicarious liability

  • There was no vicarious liability.

  • Applying the established Supreme Court test in Various Claimants v Catholic Child Welfare Society [2012],the role of a foster carer was not ‘akin’ to being employed by the local authority.

  • Relying on S v Walsall Metropolitan Borough Council [1985] and KLB v British Columbia [2003], not only does a local authority not have control over foster parents and does not direct what they do and how they do it but it is essential to the whole concept of foster parenting that the local authority should not have that control.  A foster parent’s role is to provide family life, bringing up the foster child as a member of the family and enjoys independence from the local authority and autonomy in deciding how a child should be parented. The circumstances are very different from a child placed in a residential setting.

Non-delegable duty

There was not a tortious non-delegable duty.

The five features of a non-delegable duty of care identified by Lord Sumption in the Supreme Court in Woodland v Essex County Council [2013]were:

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

  2. there was antecedent relationship between the claimant and the defendant, independent of the negligent act or omission, which placed the claimant in the actual custody, charge or care of the defendant, and from which it was 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 would foreseeably damage the claimant;

  3. the claimant had no control over how the defendant chose to perform those obligations;

  4. the defendant had delegated to a third party some function which was an integral part of the positive duty which it had assumed towards the claimant, and the third party was 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 went with it; and

  5. the third party had 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.

While Males J found that all the above features were present in the case of fostering children in care, it was not “fair, just and reasonable” to impose the duty.  He gave four reasons at paragraphs 200 – 210 of his judgment:

  • It would place an unreasonable burden on a local authority providing critical public services and where it had taken all reasonable steps to ensure that the child was safe in the placement.

  • Its imposition would lead to “risk averse foster parenting”.

  • There is a fundamental distinction between placement in a children’s home and placement with foster carers. The latter provides experience of family life and the local authority does not have the same control over the children’s day to day lives. That may bring risks but provided that all necessary reasonable care has been taken to ensure that foster parents and the placement are suitable, “those are risks which will generally be worth running in order to obtain for a child the benefits of family life.”

  • It is difficult to draw a distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority allowed a child to live part or full time, including its own parents.

  • There is no question of any unfair distinction between those who can pay, and therefore obtain the benefit of a contractual non-delegable duty, and those who cannot. Nor is there any question of a local authority once having provided fostering services itself, but subsequently deciding to outsource their provision.

Comment

  • This decision clarifies the previous obiter comments from HHJ Godsmark QC in BB & BJ v Leicestershire County Council [2014] where he said, but for the limitation problem, he would have found there to be a non-delegable duty in respect of the abuse by foster parents in that case.

  • Local authorities will now welcome this decision. A finding of a non-delegable duty being owed would have meant local authorities potentially being found liable for proven abuse by foster carers, no matter how stringent their assessment and approval of those carers or how well social workers might have supervised the actual placement.

  • The decision does though leave the door open to claims of non-delegable duty in respect of local authorities who place children in independent children’s homes i.e. placement authority claims which have the potential to produce many claims.

  • It is also an important decision in respect of the failure to remove aspect of the claim. At paragraph 131 of the judgment, the court recognises that social workers deal with challenging situations which require balanced judgments with no certainty of a good outcome. The court refers to the need for expert evidence which can be very difficult to obtain and potentially be very expensive.

  • There is likely to be an appeal and we will be keeping a close eye on developments in this area at appellate court level. 

Contact

For further information contact Andrea Ward, Partner at andrea.ward@dwf.co.uk or call +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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