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Council vicariously liable for abuse perpetrated by foster parents

Local authority has no non-delegable duty to ensure reasonable care of fostered children

The Supreme Court has decided, by a majority of 4-1, that Nottinghamshire County Council is vicariously liable for abuse committed by foster parents selected by it, but rejecting the argument that the local authority was liable on the basis of a non-delegable duty.

In Armes v Nottinghamshire County Council [2017] UKSC 60, the Supreme Court allowed the appellant's appeal against the dismissal of her claim by the Court of Appeal, which had upheld the decision of the High Court.

The appellant was in the care of the respondent local authority from the ages of seven to eighteen. The local authority placed her into foster care with Mr and Mrs A between March 1985 and March 1986, and with 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.

The case proceeded on the basis that the local authority were not negligent in the selection or supervision of the foster parents, but that they were nevertheless liable for the abuse perpetrated by her foster carers. She claimed that the local authority were liable for the abuse, either on the basis that they were in breach of a non-delegable duty, or on the basis that they were vicariously liable for the wrongdoing of the foster parents. The Supreme Court allowed the appeal by a majority of 4-1, finding the local authority vicariously liable for the abuse committed by the foster parents, but rejecting the argument that the local authority were liable on the basis of a non-delegable duty. Lord Reed gave the lead judgment, with which Lady Hale, Lord Kerr and Lord Clarke agree. Lord Hughes gives a dissenting judgment.

A local authority are not under a non-delegable duty to ensure that reasonable care is taken for the safety of children in care while they are in the care and control of foster parents. Such a proposition is too broad, and fixes local authorities with too demanding a responsibility.

Applying the principles set out in Cox v Ministry of Justice [2016] UKSC 10 on the imposition of vicarious liability, the local authority are vicariously liable for the acts of the foster parents in the present case for the following reasons: 

Lord Hughes gave a dissenting judgment on the vicarious liability issue. He considered that the majority's approach would extend vicarious liability to family and friend placements under the current statutory regime, and consequently inhibit local authorities' practice of making such placements.

Finally, he considered that it may result in undesirable litigation of family activity in the courts.

Alison Michalska, President of the Association of Directors of Children's Services, commented:

"Foster carers are on the frontline of looking after vulnerable children who cannot live with their own families. Ensuring that children are safe during their placement is one of the highest priorities for local authorities which is why foster carers must undergo a comprehensive application and assessment process and receive regular training and supervision. Standards of recruitment and training of foster carers have been strengthened and are now much tougher than they were 30 years ago in order to better safeguard children and young people. This is complemented by the rigorous inspection of local authorities by Ofsted. Social workers are also much better at listening to children and take seriously any concerns raised about their care.

"Although safeguards for children continue to improve, and cases like this are thankfully rare, this case reinforces the need for rigour when recruiting carers for vulnerable children and young people. Whilst this judgment found no fault with social work practice or the practice of Nottinghamshire County Council it has far-reaching consequences for all local authorities - we will need time to examine it in detail to better understand the implications."

For the judgment, click here.

19/10/17 (supplemented 20/10/17)