Court of Appeal rules on liability of councils for foster care abuse

The Court of Appeal has handed down a key ruling on the liability of councils for foster care abuse, concluding that local authorities do not owe a child in such care a non-delegable duty.

In NA v Nottinghamshire County Council [2015] EWCA Civ 1139 the Court also confirmed that a local authority cannot be held vicariously liable for the wrongful actions of foster parents. It had already been established that the council was not negligent in this case.

The claimant had been placed with two sets of foster parents; Mr and Mrs A from 1985-86, and Mr and Mrs B from 1987-88.

At first instance Mr Justice Males had allowed the claim to proceed out of time and found that the claimant had been physically abused by Mrs A and sexually abused by Mr B..

The claimant argued that the local authority was liable to her either because it was vicariously liable for the torts of foster carers or because it owed to her a non-delegable duty of care to ensure that she was protected from harm.

However, Mr Justice Males rejected both arguments. The judge had also held that the local authority social workers had not been negligent and so had done nothing wrong.

The claimant appealed but three Court of Appeal judges today affirmed the earlier ruling that a local authority cannot be held vicariously liable for the deliberate acts of foster parents as the relationship between the council and a foster parent is not “akin to employment”.

Lord Justice Tomlinson said: “In order to be non-delegable a duty must relate to a function which the purported delegator, here the local authority, has assumed for itself a duty to perform. Fostering is a function which the local authority must, if it thinks it the appropriate choice, entrust to others. By arranging the foster placement the local authority discharged rather than delegated its duty to provide accommodation and maintenance for the child.

“True it is that the local authority entrusted to the foster parents the day to day delivery of accommodation, but accommodation within a family unit was not something which the local authority could itself provide and this cannot properly be regarded as a purported delegation of duty. It was inherent in the permitted choice of foster care that it must be provided by third parties.”

Lord Justice Tomlinson said it followed that he would dismiss the appeal on the non-delegable duty ground on the basis that no such duty of the local authority was engaged.

Lord Justice Burnett and Lady Justice Black also agreed that a non-delegable duty was not owed but for different reasons.

Lord Justice Burnett said that the assaults were a deliberate act which fell outside the scope of the duty owed.

Lady Justice Black meanwhile said she was “of the view that to impose a non-delegable duty on a local authority would be unreasonably burdensome and, in fact, contrary to the interests of the many children for whom they have to care”.

She said that Mr Justice Males was right that the imposition of such a duty on the local authority would “not be fair, just and reasonable”.

Law firm Browne Jacobson, which acted for the local authority, said: “Although the concepts of non-delegable duties and vicarious liability are evolving the Court was clear that neither should apply to fostering situations. This means that local authorities cannot be liable, without fault, for the wrongful acts of foster parents.”

It said that had the Court decided otherwise it could have:

  • resulted in an unreasonable financial burden being placed on local authorities in terms of their ability to maintain foster care resources;
  • led to “risk averse foster parenting” and in the way children in care are accommodated; and
  • could have led to a significant increase in claims.

These would have all added to already significant budgetary pressures.

Ceri-Siân Williams, who together with Nick Parsons from the firm’s social care claims team acted for Nottinghamshire, said: “Abuse of children is never acceptable, and the defendant is sympathetic to the claimant’s unhappy childhood experiences.

“However, this is an important decision for local authorities. It reaffirms the position in relation to abuse by foster parents. Had the decision at first instance been overturned on appeal it would have meant that the local authority would have been strictly liable for proven abuse by foster parents.”

Williams added: “It could have had an adverse impact on how children in care are currently accommodated, and meant that local authorities faced numerous similar claims for historical abuse, all at considerable cost. In times of austerity this would put significant financial pressure on local authorities.

“However, this judgment does not mean that individuals cannot seek compensation if they are abused by foster parents; they can still pursue the foster parents direct, or continue to bring claims in negligence where a local authority has breached its duty of care.”