does vicarious liability and non-delegable duty apply to foster carers?
NA v Nottinghamshire County Council
2 December 2014
Today Mr Justice Males handed down a Judgment dealing with the important issues of vicarious liability and non-delegable duty as they relate to foster carers.
- Factual background
The claimant was born on 3 July 1977. Her parents separated when she was four months old. Just before she was eight years old the claimant, and her siblings, were taken into care. She remained in care until her 18th birthday, in 1995.
Once in care the claimant was placed with a number of foster carers, including the A’s and the B’s. She also spent periods in residential care, and at home. Throughout her childhood the claimant exhibited difficult behaviour, including temper tantrums and aggression (verbal and physical). She misused drugs as an adolescent and young adult.
- At trial – other issues
Before dealing with vicarious liability and non-delegable duty, it is worth noting briefly three other issues:
- although the claim was statute barred, the judge found there was enough documentary and witness evidence surviving to allow a fair trial
- he found that some, but not all, of the claimant’s allegations of abuse were proven, on a balance of probabilities
- the claim that the council negligently failed to remove the claimant from her family home, exposing her to further abuse, failed. The judge strongly preferred the evidence from the council’s social care expert.
- Vicarious liability
The claimant argued that the council should be held vicariously liable for abuse by foster carers, in the same way that the Council would be liable if the abuser were a council employee.
Males J rejected this proposition. He applied the test set out in Various Claimants v Catholic Child Welfare Society , which is whether the role of a foster carer was ‘akin’ to being employed by the council, and he decided it was not. He relied on S v Walsall Metropolitan Borough Council  and the Canadian case of KLB v British Columbia . He said that the local authority not only does not have control over the foster parents but that it is essential to the whole concept of fostering that the local authority should not have that control.
“The foster parents’ role is to provide family life, bringing up the child as a member of their own family. That is only possible if a foster parent enjoys independence from direction by the local authority and autonomy to determine how the child should be parented”. [Paragraph 176]
This is an important endorsement of the current law. The judge explained his approach in the following way:
“I accept that a child in foster care will not have redress against the local authority on the basis of vicarious liability, whereas a child in a residential home will have, but that is not an anomaly which needs to be corrected by an unprincipled extension of the law of vicarious liability. Rather it is a reflection of the genuinely different circumstances of life in a foster home and children’s residential home respectively and the application of what are now established principles to determine the circumstances in which vicarious liability exists”.[Paragraph 179]
- Non-delegable duty
The claimant argues that the principles laid down by the Supreme Court in Woodland v Essex County Council were satisfied, and so the council owed her a ‘non-delegable’ duty of care for the period she was fostered. Such a finding would have rendered the council liable for any proven abuse by foster carers; as such abuse would have breached this duty. It would not have mattered how well the council assessed and approved the foster carers, or how well social workers monitored and supervised the claimant’s foster placement.
The claimant’s argument had some support from obiter comments in JB & BB v Leicestershire County Council (unreported) by HHJ Godsmark QC, who concluded that the foster placement in that case did satisfy the five principles set out by Lord Sumption in Woodland, and that it was fair, just and reasonable to impose this non-delegable duty on a local authority. While Males J agreed that the five principles were satisfied, importantly he disagreed that it was ‘fair, just and reasonable’ to impose this duty. His reasons are at paragraphs 200 – 210 of his judgment:
- it would impose an unreasonable financial burden on local authorities providing a critical public service. It is strongly in the public interest that local authorities should maintain their capacity to provide fostering services at a time of high demand, and that scarce and finite recourses should be employed to best effect, in ensuring that vulnerable children currently in need of foster carer are able to benefit from the experience of family life which fostering provides
- there is a real danger that the imposition of a non-delegable duty would promote, consciously or sub-consciously, “risk averse foster parenting”. Even where reasonable steps had been taken to ensure the suitability of foster parents, a local authority could be reluctant to place children with foster carers without requiring additional or objectively unnecessary further checks
- there is a fundamental distinction between a foster placement and a placement in a children’s home. A local authority does not have the same control over the day-to-day lives of a child in foster carer that it has over children in residential homes. The purpose of fostering is to give a child in a foster placement the experience of family life. This necessarily involves the release of control, which the local authority has over a child. With the risk comes the benefit that a children’s home cannot provide
- it would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including its own parents
- there is no question of any unfair distinction between those who can pay, and therefore obtain the benefit of a contractual non-delegable duty, and those who cannot. Nor is there any question of a local authority once having provided fostering services itself, but subsequently deciding to outsource their provision.
- What next?
This is a very welcome judgment for local authorities. It prevails over HHJ Godsmark QC’s obiter comments in JB & BB. However, this probably won’t be the final word on the issues. There are no doubt other cases in other courts in England and Wales where these issues are live, and sooner or later we will have a judgment from an Appellate Court.