In Armes v Nottinghamshire County Council [2017] UKSC 60, the Supreme Court reversed the decision of the Court of Appeal ([2015] EWCA Civ 1139) and decided that a local authority could be vicariously liable for torts committed by foster carers against children in local authority care.

Malcolm johnson

Malcolm Johnson

As a child, the claimant was abused physically and sexually by foster parents with whom she was placed while in the care of the defendant local authority. There was no negligence on the part of the authority. The argument of the claimant was that either she was owed a non-delegable duty of care by the local authority or the local authority was vicariously liable for the torts of the foster carers.

Lord Reed (with whom the other members of the Supreme Court agreed, Lord Hughes dissenting) considered the statutory framework. This was contained in the Children and Young Persons Act 1969, the Child Care Act 1980 and the Boarding-Out of Children Regulations 1955. Lord Reed referred to Woodland v Essex County Council [2013] UKSC 66, where it was said that a non-delegable duty of care had five characteristic features. These had been identified by the trial judge in this case, Males J at [2014] EWHC 4005 (QB):

  • First, the claimant was a child who was in care;
  • Second, the relationship between the parties existed before the acts of abuse: it was created by a care order, and gave rise to statutory responsibilities;
  • Third, the claimant had no control over how the local authority chose to perform its obligations;
  • Fourth, the local authority’s duty to care for the child was delegated to the foster parents; and
  • Fifth, the foster parents’ tortious conduct had been committed in the performance of the very function delegated to them.

Lord Reed would not accept the presence of a non-delegable duty of care in this case:

  • There were no authorities suggesting that parents had to ensure that reasonable care was taken by anyone else to whom they entrusted their children.
  • Section 18(1) of the 1980 act required local authorities to give first consideration to the need to safeguard children and promote their welfare. If local authorities, who decided that it was in the best interests of children in care to allow them to stay with their families or friends, were to be held strictly liable for any want of due care on the part of those persons, then the law of tort would risk creating a conflict between the local authority’s duty under section 18(1) and its interests in avoiding liability.
  • A non-delegable duty would render the local authority strictly liable for the tortious acts of the child’s own parents or relatives, if the child was living with them following a decision reasonably taken under the 1980 act to place them there.
  • Section 21 of the 1980 act required the local authority to ‘discharge’ its duty to provide accommodation and maintenance for a child in its care. This suggested that the duty of the local authority was not to perform the function in the course of which the claimant was abused (namely, the provision of daily care), but rather to arrange for, and then monitor, its performance.
  • Section 22 of the 1980 act enabled the government to make regulations imposing duties on local authorities in relation to the vetting and so on of foster parents. It did not impose on the local authority continuing responsibility for ensuring that no harm came to the child in the course of that care.

Lord Reed then moved on to the issue of vicarious liability. He considered the judgment in Cox v Ministry of Justice [2016] UKSC 10. The issue in that case was what sort of relationship had to exist between an individual and a defendant before the defendant could be made vicariously liable in tort for the conduct of that individual? In Cox, the criteria for such a relationship were:

  • the employer was more likely to have the means to compensate the victim than the employee and could be expected to have insurance against that liability;
  • the tort was committed as a result of activity being taken by the employee on behalf of the employer;
  • the employee’s activity was likely to be part of the business activity of the employer;
  • the employer, by employing the employee to carry on the activity, created the risk of the tort being committed by the employee; and
  • the employee was, to a greater or lesser degree, under the control of the employer.

Most foster parents had insufficient means to be able to meet a substantial award of damages, and were unlikely to have insurance against their own propensity to criminal behaviour. The relationship between the activity of the foster parents and that of the local authority pointed towards the conclusion that the foster parents provided care to the child as an integral part of the local authority’s child care services. The local authority’s placement of children in their care with foster parents rendered the children particularly vulnerable to abuse. The local authority exercised a significant degree of control over both what the foster parents did and how they did it, in order to ensure that the children’s needs were met. Consequently, vicarious liability should be imposed in this context.

Foster care has long been used by local authorities to look after children, but it began to grow as residential care homes closed in the late 1970s and early 1980s. Its statutory regulation has become more complex and the expectations placed on foster carers are now far higher. There is at present a legal action against a local authority to secure employees’ rights for foster carers. There was always a puzzling anomaly between the vicarious liability of a local authority for the torts of residential care workers, and foster carers in circumstances where both essentially did the same job. This long-awaited judgment has closed that anomaly and opened up the possibility of suing local authorities for the torts of foster carers, which given the current case law on limitation, may arise from many years ago.