Local authorities are not liable for acts of abuse by foster carers
In a decision handed down on 2 December 2014, the High Court held that local authorities who place children in foster care are not vicariously liable for acts of physical and sexual abuse committed by foster carers against those children, nor are they legally responsible for those acts under a non-delegable duty of care (NA v Nottinghamshire County Council  EWHC 4005 (QB)).
NA had “a very unhappy childhood”. In 1985, she and her siblings were taken into the care of Nottinghamshire County Council (“the Local Authority”). Thereafter, NA was accommodated in her mother’s home, in a succession of residential children’s homes, and in a variety of foster placements. NA alleged that she suffered two periods of abuse when in foster care: physical and emotional abuse between 1985 and 1986, when NA was aged 7 and 8, and physical and sexual abuse between 1987 and 1988, when NA was aged 10.
After hearing evidence on breach of duty and limitation, the court disapplied the limitation period for personal injury claims under section 33 of the Limitation Act 1980. Quantum and causation were to be dealt with at a later date if NA’s case on breach of duty succeeded.
Males J made findings of fact (in accordance with the heightened civil standard of proof set out in In re H (Minors)(Sexual Abuse: Standard of Proof)  AC 563 and In re B (Children)  UKHL 35) that NA had experienced physical and sexual abuse in two of her foster placements. NA did not claim that the Local Authority had failed to take reasonable care in selecting or supervising her foster carers. In order to recover, she was therefore bound to establish that the Local Authority owed her a non-delegable duty of care, or was vicariously liable for the foster carers’ acts.
Males J considered the five features of a relationship “akin to employment” that usually make it fair, just and reasonable to impose vicarious liability, as identified by Lord Phillips in Various Claimants v Catholic Child Welfare Society  UKSC 56, namely:
- the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
- the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
- the employee’s activity is likely to be part of the business activity of the employer;
- the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; and
- the employee will, to a greater or lesser degree, have been under the control of the employer.
The court found that the second, third and fifth of these criteria were not met in the instant case. Not only do local authorities not have control over foster parents, but it is essential to the whole concept of foster parenting that they should not have that control. It is only possible for foster parents to bring up a child as a member of their own family if they enjoy independence and autonomy to determine how the child should be parented. Furthermore, foster carers do not provide family life to children on behalf of local authorities; rather, local authorities seek to promote children’s welfare by placing them in a home where they could be expected to benefit from family life. The provision of and participation in family life is not a part of the activity of a local authority.
Males J noted that a child in foster care would be left without redress against a local authority, whereas a child placed in a residential home who was abused by employees of the local authority would be able to obtain compensation from the authority. He held that this was a reflection of the genuinely different circumstances of life in a foster home and children’s residential home respectively, rather than an anomaly requiring correction.
The Local Authority was not liable to NA on the basis of vicarious liability.
Non-delegable Duty Of Care
Males J provided a helpful restatement of the circumstances in which a tortious non-delegable duty of care will arise, as set out by the Supreme Court in Woodland v Essex County Council  UKSC 66. He summarised the legal principles applicable to NA’s case as follows:
- the issue is whether the Local Authority should be taken to have assumed responsibility for physical or sexual abuse by foster parents with whom it placed children in its care;
- to determine that issue it is necessary to consider whether the features identified by Lord Sumption at  of his judgment in Woodland exist, but without treating those features as if the terms in which they are stated are some kind of statutory definition. The features are:
- the claimant is a patient or child, or for some reason vulnerable or dependent on the protection of the defendant;
- there is an antecedent relationship between the claimant and defendant which places the claimant in the custody, charge or care of the defendant and from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm;
- the claimant has no control over how the defendant chooses to perform those obligations (i.e. personally or through employees or third parties);
- the defendant has delegated to the third party some function which is an integral part of the duty he assumed towards the claimant; and the third party is therefore exercising the defendant’s custody or care of the claimant; and
- the third party has been negligent in the performance of the very function assumed by the defendant and delegated to him;
- the presence of those features is necessary but not sufficient. It remains necessary to consider whether it is fair, just and reasonable to impose a duty;
- in determining that issue it is necessary to consider whether such a non-delegable duty would impose an unreasonable financial burden on a body providing a critical public service; and
- it may be easier to conclude that a non-delegable duty should be imposed if the activity is one which, if done privately and pursuant to a contract, would ordinarily involve a contractual non-delegable duty (as in the case of a fee-paying school) or is one which historically the public body would have carried out by its own employees. Neither feature is present in the case of fostering.
Males J concluded that all the features identified by Lord Sumption at  of his judgment in Woodland were present in the instant case. He further maintained that a defendant subject to a non-delegable duty of care would be responsible for deliberate acts of abuse as well as negligence.
Nevertheless, Males J held that it would not be fair, just and reasonable to impose a non-delegable duty on the Local Authority because:
- this would impose an unreasonable financial burden on local authorities providing a critical public service. It is strongly in the public interest that local authorities should maintain their capacity to provide fostering services at a time of high demand, particularly following the unprecedented rise in the number of children in care in Nottinghamshire following the death of Peter Connolly (“Baby P”) and the subsequent national scrutiny of social work practice. Funds should be used to meet current urgent needs, rather than to compensate victims of historic abuse;
- there is a danger that imposing a non-delegable duty would promote “risk averse foster parenting”. In other words, a local authority could be reluctant to place children with foster parents without requiring additional and objectively unnecessary further checks. This could prejudice some children currently in need of foster care;
- there is a fundamental distinction between a placement with foster parents and a placement in a children’s home. It is inherent in foster care placements that the authority does not have the same control over the day to day lives of children; placement in foster care is therefore more risky than placement in children’s homes. However, with increased risk comes increased benefit, which life in a children’s home cannot provide. If all necessary care has been taken to ensure that placements are suitable, these risks will ordinarily be worth running to obtain for a child the benefits of family life. Therefore, a child placed with foster parents should not have the same no-fault remedy against a local authority as a child placed in a residential home who is abused by local authority employees;
- it would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including its own parents. Imposition of a non-delegable duty might make local authorities averse to attempting to return children to live with their parents. Children would then lose the opportunity to live with and form successful relationships with their natural parents;
- neither of the factors that weighed with the Supreme Court in Woodland had any application. Fostering is not an activity that, if done privately and pursuant to a contract, would ordinarily involve a contractual non-delegable duty. Nor is it an activity which historically the Local Authority would have carried out by its own employees but which has since been outsourced; and
- the Supreme Court of Canada in KLB v British Columbia (2003) 2 SCR 403 held that the Canadian legislative framework provided no basis for imposing a non-delegable duty of care where the public body was not responsible for directing the day to day care of children in foster care and ensuring that no harm came to children in the course of such care.
NA’s additional claim that the Local Authority was negligent in failing to remove her from her mother’s care at an earlier date, or put in place measures to protect her from abuse from her mother and her mother’s partner, failed due to an absence of supportive expert social work evidence.
This decision is likely to provide some reassurance to local authorities that they will be protected from claims for injury arising from abuse by foster carers, and that funds will therefore be safeguarded to provide care to children in the future.
For potential claimants, Males J noted that it was not correct to say an abused child would have no remedy: there will always be a remedy against the abusers. In that respect, children abused by foster parents are no worse off than children abused by anybody else for whom there is no question of local authority responsibility. Former abusers may have funds to satisfy a settlement or judgment debt (particularly where they are homeowners), or claims may lie to the CICA. However, it is likely that some claimants will find that otherwise meritorious claims are not worthwhile.
These conclusions may not be settled. Given the importance of the legal issues to both parties, and the wider public interest in the outcome of this case, there is a clear risk that this matter will be the subject of an appeal.
Barristers: Katarina Sydow