Kunnenkeril v Mayor and Burgess of the London Borough of Enfield  EWHC 1779 (QB)
The claimant was an approved foster carer for children between 13 and 18 years of age and was on the defendant’s panel of emergency foster carers. It was noted that the claimant had enjoyed considerable success with challenging children and had provided structure and discipline, which benefited many young people that spent time in her care.
On 12 July 2013, the claimant was assaulted by a child who had been placed in her care. The child was 12 years old and had a history of self-harm, suicidal threats and aggression. Also, there was a history of domestic violence in her previous home.
As a result of the assault, the claimant stopped fostering children and brought a personal injury claim against the defendant, seeking damages for physical and psychological injuries and the loss of reward payments that she would have received had she continued to work as a foster carer.
The claimant alleged that the defendant was negligent at common law for failing to provide her with information about the child’s violent and aggressive tendencies. It was also alleged that the defendant failed to remove the child from her care when the defendant ought to have done, in light of the concerns the claimant had raised about the child.
The claimant submitted that she would not have accepted the child at all if she had been given information relevant to the child’s behaviour and previous history.
The High Court referred to the case of Lambert v Cardiff County Council which sets out the principles to be applied when considering the duty of care owed by a defendant local authority to foster carers. This judgment made clear that a defendant local authority could not be liable in tort for doing something authorised by statute and any breach of statutory duty did not in itself, give rise to any private law cause of action.
It was held that the defendant had discharged its duty to pass on the relevant information that it had held in accordance with its standard practice. The claimant had not established a breach of duty owed by the defendant to pass on information as the defendant had provided the claimant with sufficient information.
It was concluded that the defendant had acted reasonably in placing the child in the care of the claimant as it had been the most sensible option at the time. Also, the High Court noted that the defendant’s officers had raised and debated their concerns and the decision had been made to place the child with the claimant on the basis that it was a short term placement only. Also, it was noted that the claimant had been willing to accept the placement and she had been read all the information on the placement referral forms, which included information about the child’s challenging behaviour. Also, the claimant had been made aware that the child had been violent and aggressive on occasions.
The High Court specifically concluded that it would have been unrealistic to have expected the defendant to have gone through every record in the course of making a temporary, emergency placement.
In respect of whether the child should have been removed from the claimant’s care, the High Court stated that the law did not generally impose a positive duty to protect another person from being harmed by the criminal act of another party. It was held that foreseeability of harm was not sufficient to give rise to liability and there had to be a particular reason for why the defendant was to be liable for the harm caused by the child. Here, it was held that it was not fair, just and reasonable to impose a duty on the defendant to have removed the child from the claimant’s care prior to the assault. Also, it was held that the defendant had not breached its duty of care owed to the claimant and had acted in a responsible and professional manner.
What this means for you
In this case, the High Court made clear that it was not for the courts to interfere with the exercise of a local authority’s discretion as to how it exercised its statutory duties. It was seen that the defendant had acted reasonably in the circumstances and had provided the claimant with sufficient information in respect of the child placement.
The High Court reached a sensible decision as the placement was intended to be temporary and information had been provided to the claimant in respect of the child’s challenging behaviour, and the fact that she had previously been violent and aggressive. In the circumstances, it is arguable that the defendant could not have done much more and that the claimant had willingly agreed to the child being placed in her care.
In particular, if the defendant had been found liable for failing to provide detailed information about previous incidences concerning the child then it would have placed a heavier burden on them to obtain further information which may, in any event, not have affected the claimant’s position to accept the temporary placement. The claimant was already aware that there had been previous incidences so was seen as being able to make an informed decision on the basis of this information.
This case may have been decided differently had the defendant failed to provide the claimant with any information about the child being previously challenging and/or aggressive.. If this was the case, the claimant would have likely showed that she did not have essential information and was prevented from making an informed decision as to whether to accept the child into her temporary care.