Supreme Court to rule next week on liability for abuse by foster carers | Local Government Lawyer | 12 October 2017
|The Supreme Court will next week hand down a key ruling on whether a local authority was liable for abuse suffered by the appellant at the hands of her foster carers, even though the council was not negligent in connection with the foster placement.
The background to the case of Armes (Appellant) v Nottinghamshire County Council (Respondent) was that the appellant had been in the care of the respondent local authority from the age of seven to eighteen.
Nottinghamshire placed the appellant into foster care with Mr and Mrs A between 25 March 1985 and March 1986, and with Mr and Mrs B between 23 October 1987 and 28 February 1988.
The appellant had been physically abused by Mrs A, and sexually abused by Mr B.
Her claim that the local authority was liable for the abuse she suffered was dismissed by the Divisional Court and the Court of Appeal.
A five-justice panel – comprising Lady Hale, Lord Kerr, Lord Clarke, Lord Reed and Lord Hughes – heard the case on 8-9 February 2017.
The ruling will be handed down on Wednesday, 18 October.
Council not responsible for foster carers’ abuse of a child, finds Court of Appeal | | COMMUNITY CARE |
18 November 2015 | Children, Fostering and adoption, Legal, Workforce
Nottinghamshire could not have had enough control over the foster carers’ day-to-day actions to be found liable for “cruel and despicable” treatment
A council was not responsible for the historic physical and sexual abuse of a child at the hands of her foster carers, the Court of Appeal has found.
Three judges upheld the decision of Mr Justice Males that Nottinghamshire council was not liable for the “cruel and despicable” treatment of Natasha Armes, between the years 1985 to 1988, in two foster placements.
Armes, now 38, waived her anonymity when appealing the decision.
She had claimed the local authority had failed to exercise reasonable care both in the selection of two sets of foster carers, referred to as Mr and Mrs A and Mr and Mrs B, and in the supervision of these placements.
However, this was dismissed before the case began. Justice Males found her social workers had exercised reasonable care but, “unknown to them, physical and emotional abuse in the first case, and physical and sexual abuse in the second case, were taking place”.
Armes was said by Justice Males to have had an unhappy childhood which “cast a long shadow over her life.”
Physical and emotional abuse
In her early life she suffered physical and emotional abuse at the hands of her mother’s violent partner.
Between the ages of seven and eight she lived in a group foster placement in the care of Mr and Mrs A, along with several other foster children including her older sister.
Four of the children living there at the same time as Armes, now in their thirties, gave evidence that Mrs A had mistreated the children in her care. They alleged she beat them with her fists, a wooden spoon and bed slats, would barricade them in their rooms at night and punish them for soiling themselves.
In a subsequent placement, age ten, Armes alleged she suffered serious sexual abuse at the hands of her foster carer, Mr B, who would assault her in her bedroom and at bath time, and force her to perform sexual acts on him.
At the time Armes did not tell anyone what was happening.
Having found her social workers were not negligent in how they handled the case, Justice Males looked at whether the council was vicariously liable for the foster carers’ actions because they were in effect employed by the local authority.
Vicarious liability, where an organisation is indirectly responsible for someone else’s actions, even if they did not know about them, is usually applied to an employer-employee relationship.
But the appeal judges upheld Justice Males’ analysis that this could not apply in the case of a foster carer, because they could not be said to be acting as agents of the local authority.
Appeal judge Lord Justice Tomlinson said fostering by nature must be independent of close government control. Its aim is to provide children with the experience of family life.
Lord Justice Tomlinson said: “If foster parents had to check with the state before making ordinary day-to-day decisions, they not only would be less effective as parents, but they would be unable to deliver the spontaneous, loving responses and guidance that children need.
“The fact that foster parents must operate so independently in managing the day-to-day affairs of foster children…[indicates] that, in their daily work, they are not acting on behalf of the government.”
He added the fact fostering takes place in a private family setting means social workers cannot supervise the placement constantly and so cannot prevent every instance of abuse that takes place in their absence.
It would not be realistic or good for the child to impose stricter monitoring, he said. Making councils vicariously liable in these situations might deter them from placing children in foster homes in favour of potentially less beneficial institutional settings where the council would have more control over what happened to them, Justice Tomlinson added.
“Governments can and do provide instruction and training to foster parents. They can and do put in place periodic monitoring. They can and do encourage social workers to develop communication between social workers and foster children.
“But given the nature of foster care, governments cannot regulate foster homes on a day-to-day basis,” he said. As a result, he said, the relationship between foster parents and local authorities was not close enough to make the one liable for the other’s actions.
Armes contended it was artificial for the judge to distinguish between those abused in children’s homes and those abused in foster care.
But all three appeal judges found local authorities do have the right to delegate responsibilities for the care of a child to a foster carer, in contrast to a child placed in a residential setting for whom the council would always have ultimate responsibility, even if it did not run the home.
This is because foster care by nature has to be delegated since it is not a function the local authority can provide itself.
Justice Males said, and the appeal court upheld, there was a fundamental distinction between a placement with foster parents and a placement in a children’s home, because “it is inherent in foster care placements that the local authority does not have the same control over the day-to-day lives of children in foster care that it has over children in residential homes”.
“That is a benefit to the children in foster care and is necessary in order to give them the experience of family life.
“As fostering necessarily involves a release of the control which the local authority has over a child, it may in a sense be regarded as inherently risky. But with the risks come the benefits which life in a children’s home cannot provide.”
Justice Males had added that a local authority would not be blamed for harm committed by a child’s natural parents while living with them, providing it had been carrying out the appropriate monitoring, and therefore could not be liable in the same situation with a foster parent.
Almost every case I write about is full of human tragedy and sadness, and this one particularly so. It involves a woman who when she was a child was placed in the care of foster parents, one presumes because it was decided that her own parents could not perform that task. That particular foster carer went on to physically and sexually abuse her. Dreadfully sad and unspeakably awful. I hope (but don’t know) that the foster carers have been convicted and punished.
The issue for this case was whether the woman could sue the Council who placed her there. They did not know of the abuse at the time, and there is no suggestion here that there was negligence on their part (which would be either that the fostering checks hadn’t been carried out, or that they failed to make the visits and ongoing checks that were required by law at that time, or that they learned of the abuse and failed to act). Councils can be sued for negligence, if any of those things were alleged and capable of being proven, but negligence is not the case pleaded here. The detail makes it plain that none of those failings were present.
Instead, it is something called “vicarious liability”, which in simple language means that an employer can be held legally responsible in some situations for things that its employees did. Vicarious liability can be a useful remedy where the organisation was not negligent, but where they have the necessary care and control over the employee’s actions. It is useful in particular because generally an employer (for example a Council) has more money (and insurance) than the wrong-doers themselves, who would not have the financial means to pay the compensation that the victim would really deserve.
So the fundamental question for the Court of Appeal here was “Can the Council be vicariously liable for criminal actions carried out by foster carers?”
NA v Nottingham County Council 2015 (It should be Nottinghamshire, but who am I to question the Court of Appeal?)
Unpleasantly, a lot of the law around vicarious liability involves the sexual abuse of children, with the lead case being one about the Catholic Child Welfare Service Various Claimants v Catholic Child Welfare Society and Others  UKSC 56,  2 AC 1
“35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”
In this case, the critical element was (v) whether the employee (the foster carers) to a greater or lesser degree was under the control of the employer (the Council)
The Court of Appeal ruled unanimously that there was no vicarious liability here
The provision of family life is not and by definition cannot be part of the activity of the local authority or of the enterprise upon which it is engaged. Family life is not capable of being so regarded, precisely because inherent in it is a complete absence of external control over the imposition or arrangement of day to day family routine, save insofar as is provided by the general law or by ordinary social conventions. The control retained by the local authority is at a higher or macro level. Micro management of the day to day family life of foster children, or of their foster parents in the manner in which they create the day to day family environment, would be inimical to that which fostering sets out to achieve, for the reasons expressed by McLachlin CJ at paragraph 24 of her judgment. The control retained by the local authority, over and above the proper selection of foster parents and adequate supervision of the placement which is here not in issue, is thus irrelevant to the risk of abuse occurring during the unregulated course of life in the foster home. In the Catholic Child Welfare case Lord Phillips described the relationship between the Brothers and the Institute as “closer than that of an employer and its employees.” The manner in which the Brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. There is in my view not the remotest of analogies to be drawn between that situation and the relationship of local authority to foster parents.
For vicarious liability to exist, there would have to be (1) the necessary relationship between the foster parents and the local authority and (2) the requisite close connection between that relationship and the abuse that they committed (see paragraph 21of Lord Phillips’ judgment in Various Claimants v Catholic Church Welfare Society, supra, and also paragraph 88 where he proceeds to apply what he has distilled from the authorities in the preceding paragraphs). I do not consider that the relationship between the foster parents and the local authority was of the required nature. It was not, to my mind, sufficiently akin to employment. Although the significance of control in the relationship has changed over the years, it remains a relevant aspect of the assessment of whether there is vicarious liability. Certain aspects of the care of a child by foster parents are, and were at the relevant time, regulated and the local authority have a supervisory duty over the placement, which can be ended if they consider it appropriate. But the essence of the arrangement is, just as it was at the time with which we are concerned, that the child is placed with the foster parents to live with them as a member of their family. The child’s day to day life is in the charge of the foster parents, who are expected to give the child as normal an experience of family life as they can. The degree of independence that this gives the foster parents is not indicative, in my view, of a relationship giving rise to vicarious liability.
There was a second part of the claim which was that this was a “non-delegable duty” – i.e that it was the Council’s job to provide a child whom they are looking after with a safe home and they could not delegate that duty to the foster carers. This is a much more technical argument, and beyond the scope of this blog to explore in detail, but the Court of Appeal ruled that there was not such a duty here. That possible remedy arises largely from a case called Woodland v Swimming Teachers Association and others  UKSC 66  AC 537, decided in the Supreme Court and setting out five ingredients.
The Court of Appeal did not think that this case met all of those Woodland ingredients, and were also cautious about viewing the Woodland ingredients in isolation.
- I do not propose to take my discussion of this point any further because it seems to me that consideration of the five features set out in Lord Sumption’s paragraph 23 should not be undertaken in a limbo. This is because the question of liability for non-delegable duty has got to be approached having very much in mind what he said at paragraph 25 of the Woodland case:
“The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.”
Lord Sumption explained why he considered that no unreasonable burden would be imposed in that case. In this case, however, I am 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.
- I therefore find myself in agreement with Males J’s conclusion about this aspect of the case. I take into account the desirability of providing a remedy of substance for someone in the Appellant’s position. Nothing that I say here should be taken as suggesting that I am anything other than deeply conscious of the dreadful treatment she has suffered and sympathetic to the lasting impact that it must have had upon her. However, there are powerful reasons against the imposition of liability in circumstances such as the present ones.
- It is a fundamental principle of social work practice that children are best placed in a family environment. If they cannot live with their parents, the majority of children are therefore likely to benefit most from a foster placement. Careful screening of prospective foster parents, training, supervision of the foster family, proper checks and balances in relation to the foster parents’ practice, and regular contact between social services and the child all play their part in ensuring that the child is safe with the foster parents. If, through the duty that it places upon the local authority, the law of negligence improves the chances of these safeguards being rigorously maintained, it is a very good thing. But, as this case demonstrates, even proper care on the part of the local authority cannot always prevent harm coming to the child from the foster parents. It seems to me that the imposition of liability for the actions of the foster parents by means of a non-delegable duty, operating in the absence of negligence on the part of the local authority, would be likely to provoke the channelling of even more of the local authorities’ scarce resources into attempting to ensure that nothing went wrong and, if such were possible, into insuring against potential liability (see paragraph 201 of Males J’s judgment). Particularly influential in my thinking is the fear that it would also lead to defensive practice in relation to the placement of children. Local authorities would inevitably become more cautious about taking the risk of placing children with foster parents and may possibly place some children who would otherwise have had the benefit of a foster home in local authority run homes instead, simply in order that the local authority can exert greater control over their day to day care. Males J dealt with this at paragraph 204 of his judgment. It was referred to also in the Canadian case of KLB v British Columbia  SCR 404, in the context of vicarious liability, at paragraph 26.
- The imposition of liability on the local authority might also give rise to another undesirable consequence for children. Important amongst the ways in which, under the statutes of the time, the local authority could discharge its duty to provide accommodation for the child was by allowing the child to live with a parent or relative (see section 21(2) of the Child Care Act 1980). If the local authority had a non-delegable duty towards a child in their care under a care order, making them liable for abusive actions on the part of a foster parent, there seems little principled basis for saying that they would not also be liable for such actions on the part of a parent with whom the child had been placed in this way. That sort of strict liability might well, it seems to me, affect the willingness of the local authority to take what would otherwise be seen as the manageable risk of allowing the child to live at home, thus reducing the chance of reuniting the child with his or her own family where that would, in fact, benefit the child. That is the point made by Males J at paragraph 206.
- To these points, I would add that it is material, when considering a possible non-delegable duty rather than liability in negligence, to remember that the local authority has the powers and duties of a parent. I raised earlier my uncertainty as to what the precise implications of this are in the context of non-delegable duty. However, whatever they may be, I think it appropriate to bear in mind that a parent would not have a strict liability for harm caused by someone to whom he or she had entrusted the child’s care, for instance a nanny or, to take Burnett LJ’s examples, friends or relations. If the local authority’s powers and duties under statute are those of a parent, and where it is day to day care by a third party that is under consideration rather than strategic and management decisions on the part of the local authority, it is difficult to see why the local authority’s liability should be more onerous than a parent’s.
- I acknowledge that although I am quite clear in my conclusion that the judge was right that the imposition of a non-delegable duty would not be fair, just and reasonable, I have not expressed firm views about the precise nature of the duty that should be considered to be at the heart of the non-delegable duty argument or about all of the five indicia of non-delegable duty. As Baroness Hale observed at paragraph 28 of the Woodland case, the common law is a dynamic instrument, but caution is needed in developing it. The law in relation to non-delegable duties is still evolving, as the Woodlandcase itself showed, and it seems to me preferable that I should only determine those matters which are essential to the determination of the appeal which, for the reasons that I hope appear from the preceding paragraphs, I would dismiss.
It does seem awful that this woman has no legal remedy for the awful things that were done to her – assuming that Criminal Injuries Compensation is not open to her (it may not be, due to the passage of time). Nothing in this case affects a Local Authority’s liability under negligence – i.e if they had known of the abuse and failed to stop it, or it had been a foreseeable risk that they had failed to prevent through carelessness.
There are some hints in this judgment that it might go up to the Supreme Court – as it is largely interpretation of two distinct and recent Supreme Court authorities, that seems a distinct possibility.