Following the Court of Appeal’s decision that the defendant was not liable for abuse perpetrated by foster carers on a child in their care, the claimant in NA –v- Nottinghamshire County Council has obtained permission to appeal to the Supreme Court. The hearing will take place on 8 and 9 February 2017.
During the 1980s the defendant placed the claimant with two sets of foster parents: Mr and Mrs A and Mr and Mrs B. The claimant alleged she had been physically and emotionally abused by Mrs A and sexually abused by Mr B. She claimed that the defendant was legally responsible on the grounds that:
- The defendant was vicariously liable for the abuse by the foster carers;
- The defendant owed the claimant a non-delegable duty of care for the period she was fostered.
At trial the court found that while the abuse did occur, the defendant was not legally responsible.
- The defendant was not vicariously liable for the abuse by the foster carers because the role of foster carer is not ‘akin’ to being employed.
- The defendant did not owe a non-delegable duty of care to a child in foster care. Although it was accepted that the five features of this duty identified in Woodland –v- Essex County Council (2013) were present, public policy considerations meant that it would not be ‘fair, just and reasonable’ to impose it. Its imposition would, for instance, lead to ‘risk averse foster parenting’.
The claimant appealed.
Court of Appeal
In November 2015 the Court of Appeal found unanimously that the defendant was not vicariously liable for the foster carers’ torts. It also held that the defendant did not owe a non-delegable duty of care, albeit for the Court of Appeal judges expressed different reasons for that opinion. Lady Justice Black agreed with the High Court’s emphasis on public policy issues. Lord Justice Tomlinson found that by arranging a fostering placement the defendant discharged rather than delegated its duty to provide accommodation and maintenance for the claimant and that, as such, the fourth Woodland criterion was not met. Lord Justice Burnett considered that the assaults were a deliberate act which fell outside the scope of the duty owed.
If the Supreme Court overturns the Court of Appeal judgment and imposes strict liability for abuse by foster carers, then local authorities face increased claim volumes and increased costs. It may also lead to local authorities adopting a highly defensive approach to the fostering. These were precisely the public policy considerations cited by the trial judge and Lady Justice Black for not imposing a non-delegable duty of care. Whether they carry the same weight with the Supreme Court remains to be seen.