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Court of Appeal hands down judgment in NA v Nottinghamshire County Council

NA v Nottinghamshire County Council
Court of Appeal
12 November 2015

The Court of Appeal has handed down its decision in the case of NA v Nottinghamshire County Council concerning the abuse of a child by foster parents and the duties owed by local authorities in such circumstances.

Background

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 the abuse she suffered during two particular foster placements.

In our previous article we looked at the background to the case and the first instance decision of Males J. The claimant appealed the first instance findings that:

1. There was no vicarious liability on the part of the local authority for the actions of the foster carers;

2. A non-delegable duty was not owed for public policy reasons.

Court of Appeal Findings

The appellate judges found unanimously that the local authority was not vicariously liable for the abuse perpetrated by the foster carers. The relationship between the local authority and the foster carers was not akin to employment. A local authority does not provide a family life. It would be inimical for local authorities to micromanage the day to day life of foster children.

For different reasons the Court of Appeal held that the local authority did not owe a non delegable duty to a child in foster care:

  • Tomlinson LJ found that the fourth criterion set out by Lord Sumption in Woodland v Essex County Council [2013] UKSC 66 was not made out. Under the fourth criterion:

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.”

By arranging a fostering placement the local authority discharged rather than delegated its duty to provide accommodation and maintenance for the child.

  • Burnett LJ did not consider Woodland or the policy issue adopted by Males J.  He did not favour the claimant's attempt to disconnect the non-delegable duty from the law of negligence and impose a new form of strict liability.

  • Black LJ agreed with Males J that it would not be fair, just and reasonable to impose the duty in the absence of negligence and it would lead to defensive practice on the part of local authorities placing children.

Comment

This is a welcome decision for local authorities and their insurers potentially facing a strict liability for abuse by foster carers. We wait to see if the decision will be appealed.

Contact us

For further information please contact  Denise Brosnan, Partner on +44 121 200 0415. 

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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