Court of Appeal averts risk of novel claims against local authorities for foster carer abuse

The court has handed down judgment in NA v Nottinghamshire County Council on whether local authorities can be liable for abuse perpetrated by foster…

Executive summary

Today the Court of Appeal has handed down its eagerly awaited judgment in NA v Nottinghamshire County Council [2015] EWCA Civ1139 on whether local authorities can be liable for abuse perpetrated by foster carers. The judgment is a welcome victory for local authorities as all three judges rejected the claim.

Background

The claimant, Natasha Armes, was taken into the care of Nottinghamshire County Council in 1984. The council placed Natasha with foster carers Mr and Mrs A between March 1985 and March 1986, and with foster carers Mr and Mrs B between October 1987 and February 1988. She was physically and emotionally abused by Mrs A, and sexually abused by Mr B.

Ms Armes claimed that the council’s decision to place her with these foster carers was negligent, but that claim failed. She then brought her claim on two further bases:

  1. The council was vicariously liable for the actions of the foster carers;
  2. The council owed her a non-delegable duty, and the actions of the foster carers were a breach of this duty.

Both arguments failed at first instance before Males J in 2014.  The claimant appealed.

Vicarious liability

All three judges dealt with this issue briefly, and consistently. They all rejected the argument that a local authority could be vicariously liable for the act of a foster carer. They focused on the concept of “control”, which was given prominence in the recent Supreme Court decision of Various Claimants v Catholic Child Welfare Society & others [2012]UKSC 56. The greater the degree of control, the more likely it is that there would be vicarious liability. Giving the lead judgment, Lord Justice Tomlinson said that through foster care, local authorities were trying to provide children with “family life”, and in a phrase which will no doubt be quoted frequently:

“inherent in [family life] is a complete absence of external control over the imposition or arrangement of day to day family routine”.

He said the control which a local authority retained was at “a higher or macro level”, and that the “micro-management of the day to day family life of foster children…would be inimical to that which fostering sets out to achieve”.

Non-delegable duty

This claim is based on the Supreme Court’s significant decision in Woodland v Essex County Council [2013] UKSC 66. In that case, the court held that the council owed a non-delegable duty of care to pupils in its maintained schools when delivering education required under the national curriculum. When outsourced swimming instructors providing a school swimming lesson were negligent, this was also a breach of the council’s duty of care. The Supreme Court went on to say that for non-delegable duties to be imposed in other circumstances, five defined criteria would need to be met, and it would need to be fair, just and reasonable to impose the duty. The issue here was whether such a duty should be imposed in the context of foster care.

All three judges rejected Ms Armes’ claim but came to their conclusion via different routes:

  • Lord Justice Tomlinson decided that when making a foster placement, a local authority was exercising its duty under section 21 of the Child Care Act 1980 to “provide accommodation and maintenance”. Making a foster placement was a discharge of this duty, not a delegation of it. Therefore there was no delegation to start with, and the claim must fail.
  • Lord Justice Burnett decided that while there was a delegated duty, this did not extend to a duty not to assault the child. As in this case all the abuse was perpetrated deliberately, and amounted in law to assaults, the duty was not breached.
  • Lady Justice Black did not come to a firm conclusion on what duty was delegated, and whether it was breached. However, she decided that it would not be fair, just and reasonable to impose liability on local authorities for assaults committed by foster carers. She thought it would be a severe drain on scarce local authority resources and lead to defensive practice. She feared that fewer foster placements would be made.

Conclusion and implications

In spite of the court’s decision, which will be a relief for local authorities, we should sound a note of caution in terms of the future. This claim concerned events which took place between 1985 and 1988. Lord Justice Tomlinson emphasised that the “legislative framework has changed, and nothing that we say… is of any necessary relevance to the position today”.  This comment, and differing analyses of the judges’ arguments on the non-delegable duty point, may give claimants heart. Today, however, belongs to defendant local authorities. 

For advice or assistance on any of the matters raised, please contact:

  • Andrew Cooper, Partner on 0151 243 9898 or email andrew.cooper@weightmans.com
  • Peter Wake, Partner on 0151 242 7953 or email peter.wake@weightmans.com
  • Chris Webb-Jenkins, Partner on 0121 200 7581 or email chris.webb-jenkins@weightmans.com

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