Armes v Nottinghamshire County Council  UKSC 60
The Supreme Court has ruled by a majority of 4:1 that a local authority was vicariously liable for the abuse committed by the foster parents of a child in the 1980s. However, the Court rejected the argument that the local authority was liable on the basis of a non-delegable duty to ensure reasonable care was taken for the safety of children in care.
The Appellant was taken into the care of the local authority between the ages of 7-18. She was placed into foster care with Mr and Mrs A between 1985 and 1986 and Mr and Mrs B between 1987 and 1988. The Appellant was physically and emotionally abused by Mrs A and sexually abused by Mr B. She brought a claim for damages against the local authority.
Her claim was dismissed by the High Court and Court of Appeal. It came before Lady Hale, Lord Kerr, Lord Clarke, Lord Reed and Lord Hughes in the Supreme Court in February this year and judgment was given on 18th October 2017.
The issue before the Court was whether the local authority was liable to the Appellant for the abuse she suffered on the basis that it was in breach of a non-delegable duty of care or on the basis that it was vicariously liable for the wrongdoing of the foster parents.
Non-delegable duty of care
The court addressed the relevant statutory framework as follows (paras 39-48):
The Childcare Act 1980 s10(2) provides that, ‘a local authority shall, subject to the following provisions of the this section, have the same powers and duties with respect to a person in their care by virtue of a care order… as his parent or guardian would have apart from the order’.
The court noted that ‘although there are differences between the position of local authorities and that of parents, children in care have the same needs as other children. In particular it may be in the child’s best interests to spend time staying with their parents or grandparents or other relatives or friends. This is specifically permitted by s21(2) of the Act.’
In deciding whether to exercise the power under s21(2) the local authority are required to give first consideration to ‘the need to safeguard and promote the welfare of the child throughout his childhood and, so far as is practicable, to ascertain the wishes and feelings of the child regarding the decision and give due consideration to them (s18(1)).’
The court concluded that if local authorities, which reasonably 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, the law of tort would risk creating a conflict between the local authority’s duty towards children under s18(1) and their interests in avoiding exposure to such liability. Furthermore since a non-delegable duty would render the local authority strictly liable for the tortious acts of the child’s own parents or relatives, the effect of a care order followed by the placement of a child with his or her family would be a form of state insurance for the actions of the child’s family members.
‘s21(1) is relevant in another respect. It requires the local authority to ‘discharge’ their duty to provide accommodation and maintenance for a child in their care in whichever of the specified ways they see fit or by ‘making such other arrangements as seem appropriate to the local authority’.’ The implication of the word ‘discharge’ is that the placement of the child constitutes the performance of the local authority’s duty. In other words, the duty of the local authority is not to perform the function in the course of which the child was abused (namely the provision of daily care) but rather to arrange for and then monitor its performance.
‘s22 is also relevant as it enables the Secretary of State to make regulations upon imposing duties on local authorities in relation to the approval of households where children are boarded out, the inspection of these premises and the removal of children from these premises if their welfare requires it.’ The implication of s22 is that the continuing responsibility of the local authority for the care of the child is discharged in relation to the boarding out of children by means of the approval, inspection, supervision and removal if required in accordance with the regulations. The statutory regime does not impose any other responsibility on the local authority for the day-to-day care of the child or for ensuring that no harm comes to the child in the course of that care.
On the issue of breach of a non-delegable duty of care the court concluded that ‘the proposition that a local authority is under a duty to ensure that reasonable care is taken for the safety of children in care, whilst they are in the care and control of foster parents, is too broad and that the responsibility with which it fixes local authorities is too demanding’ (para 49). The Court reached the same conclusion as the Court of Appeal but for different reasons.
Under the doctrine of vicarious liability, the law holds a Defendant liable for a tort committed by another person when the relationship between the Defendant and tortfeasor has particular characteristics justifying the imposition of such liability. As well as applying to the classic employer/employee relationship, vicarious liability can also apply where the relationship has certain characteristics similar to those found in employment subject to there being sufficient connection between that relationship and the commission of the tort.
The court considered the general principles governing the imposition of vicarious liability set out in the case of Cox v Ministry of Justice  UKSC 10 and the five features listed in Various Claimants v Catholic Child Welfare Society  UKSC 56 making it fair just and reasonable to impose vicarious liability.
a) 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;
b) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
c) The employee’s activity is likely to be part of the business activity of the employer;
d) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
e) The employee will, to a greater or lesser degree, have been under the control of the employer.
Applying these principles to this case the court found (paras 59-64):
- The Appellant’s foster parents could not be regarded as carrying on an independent business of their own. The torts committed against the Appellant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority;
- In terms of risk creation, the local authority’s placement of children in their care with foster parents created a relationship of authority and trust between the foster parents and children, in circumstances where close control could not be exercised by the local authority, and so rendered the children particularly vulnerable to abuse;
- The local authority exercised powers of approval, inspection, supervision and removal without any parallel in ordinary family life. By virtue of these powers, 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;
- Most foster parents had insufficient means to be able to meet a substantial award of damages. The local authorities which engaged them could more easily compensate the victims of injuries which are often serious and long lasting.
The court held the local authority vicariously liable for the torts committed by the foster parents and allowed the Appeal. Damages will now need to be assessed.
Lord Hughes gave a dissenting judgment as to the finding of vicarious liability (paras 75-91). He considered that If vicarious liability applies to ordinary foster parents on the basis that they are doing the local authority’s business then it must apply also to family and friends placements with connected persons. This would lead to increased litigation of family activity in the courts. The extension of vicarious liability to fostering does not seem to be either called for or justified but rather fraught with difficulty and contra-indicated.
This case will have far reaching implications for local authorities and will no doubt assist victims of abuse, whether historic or recent, in pursuing claims for damages.
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