2018 has started with an even greater degree of scrutiny upon abuse than ever before. Almost every corner of life is having light shone onto it in order to expose abuse. Naturally, not all allegations are meritorious, and even the dividing lines are being debated as to what is ‘acceptable’ behaviour and what isn’t, but the sheer scale of abuse cases shows no sign of abating.

The Law has attempted to move with the times and some key cases are examined below. Clearly, Parliament is also trying to keep up (when having a rare day off from Brexit), with a number of issues likely to be debated: removing limitation periods for abuse cases (as already occurred in Scotland in 2017); removing non-disclosure agreements (which can be used to hide abuse); as well as numerous initiatives from charities/NGOs/sports organisations in light of revelations at home and abroad.

Many claims are of course now being dealt with by way of specific redress mechanisms set up as an alternative to Court. A clearer tariff guide on Quantum is surely not far off so that there is consistency. In terms of court proceedings, Abuse has hitherto been seen and treated as a discrete area of law – usually with different expectations when it comes to procedure, for example third party disclosure and even trial timetabling – yet applying traditional legal principles to the facts of an Abuse case can yield unpredictable results...

Armes v Nottinghamshire County Council (2017)

This was one of the most important decisions in the fields of Abuse, Local Authorities & Personal Injury for many years.

The claimant was abused in the 1980s by foster parents into whose care she had been placed by the defendant local authority. She claimed that the local authority was liable for the abuse on the basis that either it owed her a non-delegable duty of care or was vicariously liable for the foster parents’ wrongdoing. Her claim was rejected by the High Court, whose decision was upheld by the Court of Appeal. The Supreme Court, however, allowed her appeal on the vicarious liability ground by a majority of 4:1.

In terms of the non-delegable duty argument it was held that the Child Care Act 1980 did not create a non-delegable duty. A care order under the Act conferred upon the local authority the same powers and duties as a parent, and a parent does not owe a non-delegable duty. Further, the abuse occurred in the course of day-to-day care which was not part of the local authority’s duty to provide. Its duty was discharged simply by arranging for and then monitoring the performance of this care.

Now for the more controversial part: vicarious liability:

Lord Reed found that the five factors identified by Lord Phillips in Christian Brothers were present, hence this was a relationship justifying the imposition of vicarious liability. The local authority had the money to provide compensation and created the risk of abuse by putting the claimant in this relationship of authority and trust. Due to the local authority’s involvement with ongoing care provision, and its cooperation/collaborative decision-making with foster parents, it was impossible to draw a sharp distinction between their respective activities such that the latter could be deemed to be carrying on an independent business of their own. The foster care was an integral part of the local authority’s organisation of its child services and was carried out for its benefit. It exercised sufficient control over the foster parents by its powers of approval, inspection, supervision and removal, which had no parallel in ordinary life. There was plainly a sufficient connection between this relationship and the commission of the tort.

Accordingly, the local authority was held vicariously liable for the abuse.

Why does this case matter?

Will this decision make local authorities less willing to place children in foster care? Lord Reed thought not. There was no evidence that abuse is less likely to occur in residential homes, which are more expensive. We are not so confident. In any event, there is now an attempt to privatise the provision of social care with ACOs so perhaps that will be considered the ‘answer’.

Lord Reed’s approach could be described as rather unrealistic. It focuses upon evidence of which form of care is objectively riskier. Perhaps the better question to ask is what type of care the local authority will perceive to be riskier in a particular scenario. This is a question more easily answered by common sense and the evidence of the specific case. Foster care occurs largely outside the reach and sight of the local authority, necessarily behind closed doors in a highly intimate relationship based on a dynamic of trust and dependence, and so can pose greater risk of tortious conduct. This perceived greater risk of incurring liability, and the ensuing reputational damage, may lead local authorities to decide that foster care is in fact uneconomic or simply undesirable.

Lord Hughes framed part of his dissenting judgment around this idea of risk shaping care placement choices. He reasoned that if held vicariously liable for the actions of foster parents, local authorities would inevitably also be vicariously liable for the actions of the child’s family members where family placements were made. This would be problematic, he said, because: “It is not impossible that if such liability were to exist, insurers would insist on additional safeguards in relation to family placements, which would discourage their being made. With or without that factor, the liability is likely to make placement panels more cautious”. Local authorities would instead opt for “safer placements” with foster parents, depriving children of the benefits of being cared for by family members. Surely this logic extends to the residential-foster choice also.

Control Lord Reed stated that “…it is important not to exaggerate the extent to which control is necessary in order for the imposition of vicarious liability to be justified”. Put into the context of appellate decisions such as Christian Brothers, and recent first instance decisions such as from Davies J in Various Claimants v Barclays Bank PLC [2017] EWHC 1929 (QB), the decision in Armes may have effectively sounded the death knell for the requirement of (a meaningful degree of) control. In losing this restraint on its expansion, the law of vicarious liability will move further from the relationship of employment. With legal certainty in jeopardy it is hard to know for sure whether any given relationship would or not would not be deemed suitable for imposing this form of liability. New lines must be drawn. Armes provides only some of the answers. Other questions Will this lead to a wave of historic sex abuse claims? Are local authorities liable for the negligence of foster parents, as well as deliberate wrongdoing or abuse? Do foster parents constitute ‘workers’? Is there likely to be, as predicted by a colleague – Andrew Warnock QC – in an article about this decision in the Law Society Gazette, further litigation exploring the boundaries of parental liability?

Last month’s decision in Commissioner of Police of the Metropolis v DSD [2018] UKSC 11, illustrates how the Human Rights Act could be utilised further in abuse cases due to the positive obligations owed by the State when it comes to investigating allegations (in that case, of violence and degrading treatment under Article 3). Is there soon to be a wave of allegations from schools to prisons about, for example, unfair detention, where the relevant authorities are also alleged not to have investigated complaints appropriately? It is notable that in DSD a striking feature of the decision is that it related to how the State dealt with the acts of an individual.

On the other hand, the recent case of CN v Poole Borough Council (2017), in which colleagues from Chambers were successful, illustrates the Court of Appeal seeking to draw common sense distinctions between where a duty is owed, such that it can be seen as a recent example of the Courts reining in the expansion of duties of care owed by local authorities in abuse cases involving third parties.