Borough council not vicariously liable for abuse suffered by claimant, High Court rules

Barnsley Metropolitan Borough Council is not vicariously liable for sexual abuse inflicted on claimant DJ by an uncle who was a de facto foster parent, the High Court has found.

In DJ v Barnsley Metropolitan Borough Council [2023] EWHC 1815 (KB) Mrs Justice Lambert rejected an appeal against a judgment by Mr Recorder Myerson KC in 2021, which had dismissed DJ’s action for damages for personal injury because the relationship between Barnsley and Mr and Mrs G was not akin to one of employer and employee.

The court heard that following the disintegration of DJ’s parent's marriage, he was placed in voluntary care with the G family in 1980 when aged nine and stayed there until his late teens.

Lambert J said in the action before the recorder “it was common ground that, in general, the relationship between a local authority and an ‘ordinary’ or unrelated, foster carer is sufficiently closely akin to the relationship between employer and employee to justify the imposition of vicarious liability on the local authority for tortious acts by the foster carer which are closely connected with that relationship”.

Barnsley though argued the Gs, as maternal relatives of DJ, stood in a relationship to it analogous to that of parents in whose care a cared-for child had been placed by a local authority.

The recorder had concluded the Gs became foster parents because placement with them was consistent with the statutory duty to place DJ in his best interests and because the Gs volunteered for the role and would not have fostered DJ had he not been a relative.

DJ appealed on four grounds. The first was that the recorder misapplied the distinction drawn between foster carers raising their own child and those who were not doing so and the second that he had been wrong to find that the assessment process used by Barnsley for the G family was different from that undertaken for non-family foster parents.

The third ground was that the recorder arrived at factual conclusions which were mistaken or misplaced and the last that he impermissibly focussed on the motive of the G family in becoming foster carers.

Lambert J said: “I, like the recorder, am persuaded that there was a sufficiently sharp line between what the Gs were doing and the activity and business of [Barnsley].”

She added: “It is the circumstances in which the G family came to be involved in fostering the claimant that I find to be the most revealing evidence that the Gs were carrying on their own activity distinct from the statutory obligations of the local authority.

“Mr and Mrs G took the claimant in when other parts of his family were unable or unwilling to do so…although there is no direct evidence on the point, I accept the clearest of inferences that the Gs would not have considered fostering, or taking the claimant into their family, had he not been their nephew.

"All of these features suggest to me, and strongly so, that the G family were intending to and, in fact did, raise their own nephew because he was their nephew and that their purpose was to raise him as part of the family of which he was a member and in the interests of the family, including the claimant.”

She said Barnsley was not vicariously liable for the sexual abuse perpetrated by Mr G and dismissed the appeal.

Law firm Browne Jacobson acted for Barnsley and noted the court concluded that the G family were not recruited for the role of foster carers or selected by Barnsley, as they came forward to take on the role of caring for their nephew.

Browne Jacobson partner Sarah Erwin-Jones said: “This judgment overall is a helpful one as we know that historically nationwide, the proportion of children in friends and family or connected‑person foster care arrangements has sat consistently between 15% and 20% of all those fostered.

“However, what is evident is that the decision‑making of the judge was very much based on specific facts of this case as set out in the available evidence. Good record keeping that shows how decisions were arrived at and captures all communications with carers remains key.”

Erwin-Jones added that local authorities “will be reassured that this case suggests the courts will be reluctant to impose liability on councils for deliberate assaults by family members providing fostering and analogous care”.

Mark Smulian