Should a local authority be held liable for the abuse suffered by a child it placed into foster care? In NA v Nottinghamshire County Council [2015] EWCA Civ 1139 the Court of Appeal held that it should not. While the local authority exercised control over the appointment of the foster parents, this control was at a macro level. The day to day management of family life of foster children was outside their control.

NA had led a particularly tragic life. She was placed in care by Nottinghamshire from the ages of seven to 16. Lord Justice Tomlinson described the treatment she received at the hands of two sets of foster parents as cruel and despicable. She suffered both physical and sexual abuse. The appeal addressed whether Nottinghamshire was liable for that abuse.

NA put forward two arguments. First, she argued that the local authority was vicariously liable for the torts of the foster carers. The alternative argument was that they owed her a non-delegable duty of care. At first instance the judge rejected both arguments.

Key to that decision was that it is a crucial feature of foster care that the local authority has no control over the way foster parents provide family life on a day to day basis. That feature was inimical to the imposition of vicarious liability. Further, it would not be fair, just and reasonable to impose a non-delegable duty of care.

The Court of Appeal unanimously dismissed the appeal on both grounds.

The relationship between Nottinghamshire and the foster parents was not sufficiently akin to employment. NA’s day to day life was in the charge of the foster parents. The degree of independence this gave the foster parents was not indicative of a relationship giving rise to vicarious liability.

All three judges agreed that there was also no non-delegable duty of care. Lord Justice Tomlinson held that for there to be such a duty, it must relate to a function which the local authority performed. Fostering was a function it entrusted to others - the foster parents. Arranging foster care was a discharge of the duty to provide accommodation and maintenance, not a delegation of that duty.

Lord Justice Tomlinson recognised that this decision would be relevant to other historic abuse cases. Less than a fortnight after this judgment, the Goddard inquiry announced that Nottinghamshire would be examined as one of the twelve separate investigations undertaken.

The recently-commenced Scottish inquiry into historical child abuse is also to examine the role of local authorities in abuse by foster parents. In light of this judgment, is this a step too far? A key facet of foster care is that the management of day to day family life is in the hands of the foster parents. To have it any other way would disrupt the benefits which foster care is seeking to create: a safe, secure and nurturing place to stay while the child’s family is unable to care for them. Against that, if the courts cannot hold local authorities responsible for their fostering decisions, perhaps the inquiries believe they should.