Lucy Eastwood – “A law on the move: Are Local Authorities vicariously liable for abuse committed by foster parents against children in their care?”
23 October 2017
“The law of vicarious liability is on the move” proclaimed Lord Phillips in the last judgment he delivered as President of the Supreme Court: Various Claimants v Catholic Child Welfare Society  UKSC 56, (“the Christian Brothers case”). In a judgment recently handed down by the Supreme Court in the case of Armes (Appellant) v Nottinghamshire County Council (Respondent)  UKSC 60, His Lordship has been proved correct.
The case was brought by a claimant who, as a child, had been physically and sexually abused by foster parents with whom she was placed while in the care of the defendant local authority. It was accepted by both sides that the local authority was not negligent in the selection or supervision of the foster parents. The question for the court was whether the local authority could be liable to the claimant for the abuse suffered, either on the basis that they were in breach of a non-delegable duty of care, or on the basis that they were vicariously liable for the wrongdoing of the foster parents. Her claim had previously been dismissed by the High Court and the Court of Appeal.
In a momentous decision, the Supreme Court allowed the appeal by a majority of 4-1. It found the local authority vicariously liable for the abuse committed by the foster parents, but rejected the argument that the local authority were liable on the basis of a non-delegable duty.
Non-delegable duty of care
The court was quick to establish that the local authority was not under a non-delegable duty to ensure that reasonable care was taken for the safety of children in care whilst with foster parents. It referred to the authority of Woodland v Essex County Council  UKSC 66. Lord Reed set out the critical question at paragraph 37:
“…whether the function of providing the child with day- to- day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements.”
The court looked first to The Child Care Act 1980. Section 21(2) permits local authorities to consider that it may be in a child’s best interests to spend time staying with parents, relatives or friends. In deciding whether to exercise this discretion, the local authority was required by section 18(1) to give consideration to the need to safeguard and promote the welfare of the child and to ascertain their wishes regarding the decision. As a consequence, if local authorities which reasonably decided that it was in the best interests of a child in care to allow them to stay with their parents, family or friends were held strictly liable for any tort committed by those persons, the law would “risk creating a conflict between the local authority’s duty towards the children under section 18(1) and their interests in avoiding exposure to such liability”. [Paragraphs 44-45].
The court also considered section 21(1) of the 1980 Act which “requires the local authority to “discharge” their duty to provide accommodation and maintenance for a child in their care…”. The term “discharge” implied that, whilst the local authority had certain duties towards the child, this did not include the provision of day-to-day care, but rather to arrange for the performance of that care by the foster parents. Likewise, section 22 imposed upon local authorities duties in relation to the boarding out of children. This duty was discharged by boarding out the child to an appropriate foster family and, again, did not impose responsibility for the day-to-day care of the child on the local authority. The court therefore found that the imposition of a non-delegable duty would be too broad. It would fix local authorities with “too demanding” a responsibility and would be a form of state insurance for the actions of the child’s family members (if staying with them in the currency of a care order). [Paragraphs 45-49].
The issue of vicarious liability required more careful consideration.
The court referred to the Christian Brothers case which identified the circumstances in which vicarious liability may be imposed outside employment relationships and commercial settings. In Christian Brothers Lord Phillips identified five factors to consider in determining whether it would be fair, just and reasonable to impose vicarious liability, namely:
- The employer is more likely to have the means to compensate the victim than the tortfeasor and can be expected to have insured against that liability;
- The tort will have been committed as a result of activity being undertaken by the tortfeasor on behalf of the employer;
- The tortfeasor’s activity is likely to be part of the business activity of the employer;
- The employer, by employing the tortfeasor to carry on the activity will have created the risk of the tort being committed;
- The tortfeasor will, to a greater or lesser degree, have been under the control of the employer.
The court also had regard to the recent case of Cox v Ministry of Justice  UKSC 10 which built on those principles and held that for responsibility to be established under vicarious liability, it had to be shown that the tortfeasor was acting as an “integral part” of the defendant’s business, and for its benefit.
In the present case the court considered that “…the relevant activity of the local authority was the care of children who had been committed to their care”. The local authority was under a statutory duty to provide such care. In order to discharge that duty, the local authority recruited and trained foster parents, paid allowances, provided necessary equipment and involved the foster parents in their decision-making. As such the foster parents could not be regarded as “carrying on an independent business of their own” as the care they provided was “integral” to the local authority’s organisation of its child care services. Further, the abuse perpetrated by the foster parents was committed “in the course of an activity carried on for the benefit of the local authority” and it was impossible to draw a sharp distinction between the activity of the local authority and that of the foster parents. In line with the decisions in Christian Brothers and Cox, the local authority could not therefore escape vicarious liability. [Paragraphs 59- 60].
The court also recognised that the local authority exercised a significant degree of control over the foster parents and that it had “…powers of approval, inspection, supervision and removal without any parallel in ordinary life”. It bore in mind that “a number of aspects of the lives of children in foster care were decided by the local authority, reflecting the fact that it was the local authority, not the foster parents, which possessed parental powers in relation to the children”. The court echoed Christian Brothers in finding that “it is not necessary for there to be micro-management, or any high degree of control, in order for vicarious liability to be imposed”. [Paragraphs 62- 65].
Lord Hughes dissented on the issue of vicarious liability. He was concerned that the majority’s approach would extend vicarious liability to family and friend placements, and consequently would hinder the practice of making such arrangements. He considered that the decision may also result in the undesirable litigation of family life in the courts. [Paragraphs 87- 90].
In response, the presiding judge Lord Reed emphasised that “the decision that vicarious liability should be imposed in the present case is based on a close analysis of the legislation and practice which were in force at the relevant time”. On this approach vicarious liability would not have been imposed if the child had been placed with her own parents since:
“…the parents would not have stood in a relationship with the local authority of the kind described in Cox: even if their care of the child might be described as having been approved by the local authority, and was subject to monitoring and might be terminated, nevertheless they would not have been recruited, selected or trained by the local authority so as to enable it to discharge its child care functions. They would have been carrying on an activity (raising their own child) which was much more clearly distinguishable from, and independent of, the child care services carried on by the local authority than the care of unrelated children by foster parents recruited for that purpose”.
Lord Reed explained that the courts’ intention not to impose unduly exacting standards in the context of family life would apply equally to life in foster care. [Paragraphs 71-73].
Why is the decision momentous?
Historically the relationship giving rise to vicarious liability has been one of employer and employee under a contract of employment. The developing case law such as Christian Brothers and Cox had marked the expansion of the scope of relationships giving rise to vicarious liability outside relationships of employment. However the decision in Armes has extended the concept further to a relationship in which vicarious liability had been excluded hitherto. The significant consequence of this extension is to enable a level of protection for the victims of torts to be maintained in law, notwithstanding changes in modern working arrangements.
The Supreme Court established that vicarious liability should not be confined to particular legal relationships and reaffirmed the position in Christian Brothers and Cox that (in relationships other than those of employment) vicarious liability should instead be imposed taking into account what is fair, just and reasonable in all the circumstances. The decision also reflects a shift in societal attitude towards increasing accountability, notably in relation to children in local authority care who are at particular risk of abuse. Future case law may well extend the scope of relationships giving rise to vicarious liability even further.
So it appears that the prophetic words of Lord Phillips in Christian Brothers were correct, the law of vicarious liability is on the move and, as aptly stated by Lord Reed in Cox, “It has not yet come to a stop”.
What part could thew old ‘Boarding Out Regulations’ have played in this?
What age limits have been considered in this judgment, if any?
Thank you for your analysis. I would add to it some stray thoughts of my own.
It is submitted this is purely a public policy case. Nobody seems to have erred in law, per se. Especially, the trial judge was not said to be wrong: the most that is said (at 23) is “he considered the lack of control to be decisive.” Ordinarily, as pertaining to mixed facts and law and therefore within the gift of the trial judge (subject only to the Wednesbury threshold, etc), that observation would be sufficient to explain dismissal of the vicarious liability leg of the appeal. Against all odds, that didn’t happen.
It seems that something else may be going on? After all, it’s not entirely novel. For some years prior to Christian Brothers, vicarious liability had been extending itself beyond employers in fits and starts (as already explained by Lord Phillip’s review of the case law within that case, and as some have experienced in their professional work). But of course this case law, even reported cases, generally failed to reach the Supreme Court.
So perhaps this case is also repeating a message from the top? Yes, they really meant it the first time. Not only are the categories of negligence open for business on the “fair, just and reasonable” test: the categories of potentially liable non-employers also will continue to expand on the same basis, again with the explicit blessing of the Supreme Court. If so, perhaps Hawley v Luminar and the others are becoming mainstream rather than things about which we’d rather forget… which, in turn, hopefully will make dual vicarious liability and alternative vicarious liability submissions much more palatable to trial judges.
As I said in this column in January last year:-
“Murderers in prisons are treated very well compared with children taken into care.They are allowed to phone out to relatives and to discuss their cases with family and other visitors.
Children in the 7-12 sort of age group who are taken from their parents by police and social workers are put into fostercare with strangers and then have their mobile phones and laptops/tablets confiscated to isolate them from family and friends.
When parents are eventually allowed contact visits the children and also their parents are (if foreign) forbidden to speak in their own language, forbidden to discuss their cases, or the possibilit of coming home,or any criticism of those who have removed them .
Yes murderers in prisons are treated much better than children taken into State care !
How is this relevant to the issue of vicarious liability??
Well,surely it is the resposibility of the local authority to see that children in care are treated humanely?By depriving children of” freedom of speech” thus preventing themfrom speaking their own language and forbidding them to report abuse to parents or anyone else the abuse is not only tolerated but encouraged.
I hope more children when they become adults do sue the Local Authorities for abuse of their human rights .Since these rules imposed on parents are common to nearly all Foster placements it can be inferred that the local Authorities not only know of them but insist on their application by the Foster families and therefore must be liable for abuse suuffered by children in their care as a result.
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