Armes ﴾Appellant﴿ v Nottinghamshire County Council ﴾Respondent﴿ [2017] UKSC 60 

In this highly anticipated case, which has important implications for local authorities and their insurers, the Supreme Court has held the Defendant local authority vicariously liable for the abuse committed by the foster parents, but rejected the argument that the local authority was liable on the basis of a non-delegable duty.

In this judgment the Supreme Court has continued to widen the scope of vicarious liability. Local authorities and their insurers can now expect to receive numerous claims for historical abuse in this context.

The Facts

The Claimant was in the care of the local authority between the age of 7 and 18. She was placed in the foster care of Mr and Mrs A between 25 March 1985 and 27 March 1986, and with Mr and Mrs B between 23 October 1987 and 23 February 1988.

The Claimant brought a claim arguing the local authority were liable in respect of the physical abuse the Claimant sustained from Mrs A and the sexual abuse from Mr B.

At first instance

The Defendant won at first instance. The Judge found that the Claimant had been physically abused by her foster parents. However, evidence was accepted from the Defendant’s social care expert that there was no negligence on the part of the social workers involved.

The Court found that a local authority could not be vicariously liable for the deliberate acts of foster parents, and a local authority does not owe a child in foster care a non-delegable duty. The Claimant appealed against these two findings.

Court of Appeal

The Court of Appeal held that a local authority, which had not been negligent in placing a child in foster care, or in supervising the placement, could not be vicariously liable for abuse perpetrated by the foster carers. Additionally it was found that it was not fair, just or reasonable to find that the local authority had a non-delegable duty of care so as to make it legally responsible for the foster carers’ actions.

Supreme Court

The Supreme Court allowed the appeal by a majority of 4-1 finding it is fair, just and reasonable to extend the doctrine of vicarious liability, on the part of a local authority, to cover the acts of foster parents towards a foster child, even in the absence of any fault on the local authority's part.

However the Court rejected the argument that the local authority was liable on the basis of a non-delegable duty. Lord Reed gave the lead judgment, with which Lady Hale, Lord Kerr and Lord Clarke agreed. Lord Hughes gave a dissenting judgment.

Vicarious liability

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 several reasons.

The local authority carried out the recruitment, selection and training of foster parents, paid their expenses, and supervised the fostering. The local authority exercised a significant degree of control over the foster parents: it exercised powers of approval, inspection, supervision and removal.

Accordingly, the foster parents were not carrying on an independent business of their own; it is impossible to draw a sharp distinction between the activity of the local authority and that of the foster parents. The abuse committed by the foster parents against the Claimant was committed in the course of an activity carried on for the benefit of the local authority.

In addition is was noted that most foster parents have insufficient means to meet a substantial award of damages, whilst local authorities can more easily compensate the victims of abuse.

Lord Hughes gave the 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.

Non-delegable duty

A local authority is 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. Accordingly it would not be fair, just and reasonable to apply the principles established in Woodland in the context of foster care.

What can we learn?

The law of vicarious liability is still on the move. The doctrine has been extended on the part of a local authority, to the abusive acts (including intentional acts) of foster parents, even in the absence of any fault on the part of the local authority.

The decision is a further example of the ongoing appetite of the judiciary to extend the application of the vicarious liability principles recently set out in Cox and Mohamud in a sexual abuse context.

The judgment can be considered to fill a lacuna in the law in relation to liability abuse by foster carers. Had the claimant suffered abuse perpetrated by an employee of the local authority in a children's home for example, the local authority would be vicariously liable. This judgment imposes reciprocal duties in relation to foster carers.

It was noted there was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, at much greater cost. However, local authorities will now be deemed to be strictly liable for proven abuse by foster parents. This could have had an adverse impact on how children in care are currently accommodated, and is likely to result in increased interest from claimants who were previously prevented from pursuing a cause of action.

Indeed in this case the Defendant was the only viable paymaster and this is likely to have been a primary consideration in making the finding.

The case concerned a claimant taken into local authority care under the Child Care Act 1980, as opposed to the Children Act 1989. It was found it would therefore be premature to determine whether vicarious liability would similarly be imposed under the 1989 Act. However given the similarities in duties under both Acts, it is considered likely that this judgment would also apply to post 1989 cases.

The court did not extend the doctrine to intentional abuse committed by a parent or other family member into whose home the child had been placed. However it is likely that satellite litigation on this issue will follow in due course and is likely to need to be heard by the Supreme Court.