Vicarious Liability for Abuse by Foster Parents who are also Relatives

Lizanne Gumbel KC

DJ v Barnsley Metropolitan Borough Council, AG [2023] EWHC 1815 (KB)

Introduction

Despite the developments in the law of vicarious liability through the cases of:

It was not until 2017 and the case of Armes v Nottingham CC [2017] UKSC 60 that the Supreme Court established that a local authority could be vicariously liable for the actions of its foster parents. The position before that had been that following the cases of: S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150  and Surtees v Royal Borough of Kingston upon Thames [1991] 2 FLR 559 it had been held that foster parents were not agents of the local authority and the local authority could not be vicariously liable for the actions of foster parents injuring the children placed with them under a care order or otherwise by the local authority.

In the case of Armes however the Supreme Court examined the development of the law relating to liability since those cases. Lord Reed gave a judgment with which Lady Hale, Lord Kerr and Lord Clarke agreed. Lord Hughes gave a dissenting Judgment.

Lord Reed stated at [59] – [60]:

Applying the approach adopted in Cox to the circumstances of the present case, and considering first the relationship between the activity of the foster parents and that of the local authority, the relevant activity of the local authority was the care of children who had been committed to their care. They were under a statutory duty to care for such children. In order to discharge that duty, insofar as it involved the provision of accommodation, maintenance and daily care, they recruited, selected and trained persons who were willing to accommodate, maintain and look after the children in their homes as foster parents, and inspected their homes before any placement was made. They paid allowances to the foster parents in order to defray their expenses, and provided the foster parents with such equipment as might be necessary. They also provided in-service training. The foster parents were expected to carry out their fostering in cooperation with local authority social workers, with whom they had at least monthly meetings. The local authority involved the foster parents in their decision-making concerning the children, and required them to co-operate with arrangements for contact with the children’s families. In the light of these circumstances, the foster parents with which the present case is concerned cannot be regarded as carrying on an independent business of their own: such a characterisation would fail to reflect many important aspects of the arrangements.

Although the picture presented is not without complexity, nevertheless when considered as a whole it points towards the conclusion that the foster parents provided care to the child as an integral part of the local authority’s organisation of its child care services. If one stands back from the minutiae of daily life and considers the local authority’s statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority, who were responsible for the care of the child and the promotion of her welfare, and that of the foster parents, whom they recruited and trained, and with whom they placed the child, in order for her to receive care in the setting which they considered would best promote her welfare. In these circumstances, it can properly be said that the torts committed against the claimant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority.”

In the Barnsley case the issue was whether the vicarious liability of a local authority for foster parents still applied when the foster parents were also relatives of the child. The decision was influenced by what Lord Reed had said at [71]-[72] in the Armes case:

There remain the concerns raised by Lord Hughes. The first is that the imposition of vicarious liability for the torts committed by the foster parents in the present case would logically entail vicarious liability for torts committed at the present time by parents and other family members with whom a child is placed. It is important to emphasise that the decision that vicarious liability should be imposed in the present case is based on a close analysis of the legislation and practice which were in force at the relevant time, and a balancing of the relevant factors arising from that analysis, some of which point away from vicarious liability, but the preponderance of which support its imposition. Applying the same approach, vicarious liability would not have been imposed if the abuse had been perpetrated by the child’s parents, if the child had been placed with them, since the parents would not have stood in a relationship with the local authority of the kind described in Cox : even if their care of the child might be described as having been approved by the local authority, and was subject to monitoring and might be terminated, nevertheless they would not have been recruited, selected or trained by the local authority so as to enable it to discharge its child care functions. They would have been carrying on an activity (raising their own child) which was much more clearly distinguishable from, and independent of, the child care services carried on by the local authority than the care of unrelated children by foster parents recruited for that purpose.

It would not be appropriate in this appeal to address the situation under the law and practice of the present day, on which the court has not been addressed, and which would also require a detailed analysis. It is sufficient to say that, for the reasons explained by Lord Hughes, the court would not be likely to be readily persuaded that the imposition on a local authority of vicarious liability for torts committed by parents, or perhaps other family members, was justified.”

Lord Hughes in a dissenting judgment had stated at [87] to [88]:

It seems to me to follow 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. What of placements with parents? These too may be in the interests of the children, and even after a care order has been made. If they are, it is desirable that they are encouraged, as at present consideration of them is encouraged. It would, however, be artificial in the extreme to say of such placements that the parent’s care was given on behalf of the local authority, or that it was integrated into the caring systems of the authority. Nor would it be fair, just or reasonable, if there were to be behaviour by the parent which amounted to a tort, to impose vicarious liability for that behaviour on the local authority which exercised all due care in making the placement and did so in pursuit of what are recognised to be sound principles of child care. It might in theory be possible to distinguish parents on the basis that they do not have to be approved foster parents and are thus not part of the local authority’s “enterprise”, but it is not easy to see how they differ in practice from grandparents or from aunts and uncles or close friends who fulfil the same role but have to be approved as foster parents, on limited terms, in order to do so. The reality is that any member of the extended family, or close friend, who undertakes the care of children in need, is doing so in the interests of the family, not as part of a local authority enterprise. What the local authority does, in all cases, whether involving family and friends or strangers, is to take responsibility for making decisions about where the children shall live, and then monitoring the progress with a view to changing the arrangements if they do not benefit the children.

It seems to me that this is much the more realistic way of looking at the functions of the local authority, and the relationship between it and foster parents, of whichever type. The detailed controls which the authority exercises, and which are apt at first sight to suggest analogy to employment, are in reality decisions about where the children shall live. These are onerous decisions about young lives, and are properly surrounded by detailed regulations. But once the decision to place has been made, the care of the children is in practice committed to the foster parents. The daily lives of the children are not thereafter managed by the authority, as they are if they are accommodated in a Children’s Home. Subject to specific rules (such as a bar on corporal punishment), the practice of the foster parents in relation to their own and the fostered children is for them. The foster carers do not do what the authority would otherwise do for itself; they do something different, by providing an upbringing as part of a family. The children live in a family; a family life is not consistent with the kind of organisation which the enterprise test of vicarious liability contemplates. The children are in reality committed to independent carers, as they also are, although in a different manner, if the authority places the children in a specialist home run by a different authority or by a charity, as may often happen where children have special needs. The authority retains the right, and the responsibility, in all cases including that of children placed in a specialist children’s home, to remove the child if the placement is no longer the best for his welfare. In order to exercise that power, the authority monitors progress by way of visits, it expects reports, and it provides a social worker for the child. Meanwhile, the authority retains the right, in the case of children in care at least, to make major medical decisions if the need arises. But none of that really means, in practice, that the authority is bringing the child up, as it is if the accommodation is one of its own children’s homes. This is essentially the reasoning which was adopted by the Supreme Court of Canada in KLB v British Columbia [2003] 2 SCR 403 when confronting the same issue as now faces this court and in concluding that vicarious liability does not attach to the Government for the acts or omissions of foster parents. It seems to me both principled and realistic.”

The majority decision was that, despite the fact that foster parents would sometimes be relatives, this should not prevent there being vicarious liability for their actions in respect of child. The majority left open the issue as to whether this would apply to parents and possibly other relatives.

The issue in the Barnsley case was whether the Armes decision applied to an uncle and aunt that were used as foster parents.

The Facts and Analysis in the Barnsley Case

The Claimant claimed damages for personal injury arising from the sexual abuse perpetrated by Mr G, the Part 20 Defendant. Mr and Mrs G were the Claimant’s uncle and aunt, Mrs G being the Claimant’s mother’s sister. Following the disintegration of the Claimant’s parents’ marriage, the Claimant was placed by the Defendant in voluntary care with the G family in early January 1980. The Claimant was then aged 9. The G family applied to become, and later became, the Claimant’s foster parents and the Claimant remained with the G family until his late teens. During this period he alleges that he was sexually assaulted by Mr G.

The claim was struck out by the Recorder and an appeal came before Mrs Justice Lambert who dismissed the appeal.

Mrs Justice Lambert at [37-38] pointed out what she founds to be the difference between the placement with Mr and Mrs G and the placement with “ordinary foster parents”:

In this case however, certain features which would typically be present in a relationship between ordinary foster carers and a local authority were not present. The Gs were not recruited for the role of foster carers or selected by the local authority. They came forward to take on the role of caring for the Claimant when his family disintegrated. The Claimant had been cared for by his grandparents over Christmas. He was then cared for by another set of maternal relatives, but this had proved unworkable because of the living arrangements. This was the point at which the Gs took the Claimant into their home with a view to fostering him in the long term. It can’t be said in the case of the Gs that they were “recruited or selected” for their role.

Nor, it seems were the Gs trained for the role of foster parents. The records state (in January 1980) that the Gs would be well able to discharge their responsibilities in providing a good and secure home for their nephew and their expectations of the Claimant’s background were not relevant as they were caring for their own nephew. Although such records as remain are not explicit, the implication is that the Gs were not in need of information concerning the Claimant’s background nor in need to training for any particular aspect of his care as they were taking on the role of providing a home for their nephew.

Although therefore there were factors pointing in the direction of an employment relationship, equally there were pointers away – particularly in the context of a fostering arrangement. I agree with the Recorder therefore that this was one of those cases in which it is necessary to consider the balance of the policy reasons underpinning the imposition of vicarious liability were satisfied. In other words, it was necessary to consider the incidents referred to in Christian Brothers, in particular, whether the G’s care for the Claimant was integral to the business of the Defendant or whether it was sufficiently distinct from the activity of the Defendant to avoid the imposition of vicarious liability.”

Mrs Justice Lambert concluded at [41]:

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: his parents because the marriage had failed and neither parent was equipped or willing to care for him; his grandparents (with whom the Claimant spent Christmas) and his other blood relations (aunt and uncle) because their home was insufficient to accommodate a soon to be adolescent boy. 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.

Conclusion

The case of Armes left in considerable doubt what the position would be in terms of vicarious liability where a child is placed by a local authority with a member of the family. Lord Hughes in dissenting found this possibility meant there should never be vicarious liability, but the majority of the Supreme Court disagreed and found that the starting point was that there should be vicarious liability. The majority left open the argument whether vicarious liability of the local authority would be displaced by the child being placed in the care of his parents or other relatives. An important part of this reasoning was that the family law authorities have always stressed that a child should wherever possible be brought up by his or her natural parents and there should not be a disincentive to place children with their parents because the local authority might then be found vicariously liable for the parent injuring the child. The fact that this uncle and aunt had no previous relationship with the Claimant before he was placed with them must be relevant to this consideration. The Judge found that the task of these foster parents was different as they would not normally have been approved as foster parents but were taking on the task of caring for a particular child who was a relative. In circumstances where the relationship is not a pre-existing one it is doubtful that the local authority was doing a different exercise than that of placing the Claimant with foster parents it had selected who were not previously known to him.  The distinction is clearly a difficult one and does not necessarily follow from the decision in Armes which did not determine where, if at all, the line should be drawn between “ordinary foster parents” and “family foster parents”.

 Justin Levinson of 1 Crown Office Row represented the Claimant in this case. He did not contribute to this article.