https://www.bailii.org/ew/cases/EWHC/KB/2023/1815.html
This appeal, heard by Mrs Justice Lambert in the High Court, sought to overturn an order of August 2021 dismissing an appeal for damages for personal injury against Barnsley Metropolitan Borough Council. The claimant, DJ, said Barnsley should be held vicariously liable for the sexual abuse inflicted upon him by Mr G, an uncle acting as a ‘de facto’ foster parent with whom he had been placed.
The 2021 action heard by Mr Recorder Myerson KC noted that DJ had been placed in voluntary care with the G family in 1980 when aged nine and had stayed there until his late teens. In reference to those proceedings Lambert J said that as in Armes v Nottingham County Council [2017] UKSC 60 “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”.
However, Barnsley argued that “the relationship between the G family and the local authority was analogous to that of parents in whose care a cared-for child had been placed by a local authority” such that, the G family was “carrying on an activity “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.” Accordingly, the claim was dismissed on the grounds that the relationship between Barnsley and Mr G was not “sufficiently closely akin” to one of employer and employee.
Lambert J heard four grounds of appeal. The first was that having identified the distinction drawn between foster carers raising their own child and those who were not doing so, the Recorder then failed to apply the distinction correctly such that it was wrong to conclude that the Supreme Court in Armes were making a distinction between foster carers who were relatives and those who were not and that it was “not the title of the person who is undertaking the foster care role, the question is whether the role is one that they would anyway be undertaking.” The second ground asserted the Recorder was wrong to find that the assessment process implemented by Barnsley for the G family differed from the process undertaken for non-family foster parents and that on the contrary “the process by which relatives were assessed for the purpose of becoming foster carers was identical to that of “professional foster carers.”
The third ground submitted by DJ was that the Recorder’s approach and evaluation was based upon mistaken or misplaced factual conclusions while the fourth and final ground was that the Recorder “impermissibly focussed on the motive of the G family in reaching his conclusion”, whereas DJ asserted “the only only question which the Recorder should have focussed upon, was the task which the Defendant entrusted the G family to undertake” which was “the care of a child who was the responsibility of the Defendant, not the Gs” such that “the focus should be upon what the Gs were doing, not why they were doing it.”
Barnsley however asserted that “The Court was not there dealing with the distinction between those who were and those who were not raising their own child but between parents raising their own child and carers looking after unrelated children.” Also that “The Recorder had been correct to find that the project upon which they were engaged was more closely aligned to that of a parent than that of an “ordinary” foster carer” and that the Recorder “was entitled to take into account the motive of the Gs in fostering the Claimant” which was relevant when “concluding that the task which they were engaged in was independent of that [of] the local authority.”
In her analysis, Lambert J said: “Although there are a number of grounds of appeal, this case really resolves into a single issue… that the local authority would not be vicariously liable for the torts of parents of “cared-for” children in whose care the child had been placed.” “When the submissions of the parties are drilled down, both sought to persuade the Recorder that the question of vicarious liability could be answered by reference simply to the relationship between the Claimant and the G family.” As such, the question was “whether there is a sufficiently sharp line between the activity of the foster carers and the local authority such that vicarious liability is not justified”; such a demarcation would “lie in understanding, as best one can, the “details of the relationship.”
In making her determination Lambert J set out a chronology of events (derived from social service records) from 1979 onwards. This included reference to DJ’s abandonment by his parents which placed a statutory duty upon Barnsley to provide him with care. That duty had been discharged when DJ was placed with the G family following their required application for the role of foster parents and a risk assessment in which Mr and Mrs G were “interviewed” – both of which indicated a relationship akin to one of employment. However, the chronology also revealed that “certain features which would typically be present in a relationship between ordinary foster carers and a local authority were not present, for example 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.” Therefore there were equally factors pointing away from an employment relationship.
Ultimately, in reaching her conclusion, Lambert J noted that “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 the Defendant” and that it was “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 … [and] 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 which suggested to the judge “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.
Therefore, although Lambert J did not accept all of the Recorder’s findings, none of them fatally undermined his conclusion that the Gs were engaged in an activity more aligned to that of parents raising their own child which was an activity sufficiently distinct from that of the local authority exercising its statutory duty. She found that Barnsley was “not vicariously liable for the sexual abuse perpetrated by Mr G” before dismissing the appeal.
CASCAIDr Comment: We feel this case bears comparison to SS v Essex County Council & Ors [2023] EWHC 417 concerning a vulnerable adult (S) awarded a £325,000 settlement from the local authority (LA) after it admitted to negligence and vicarious liability in respect of abuse and neglect perpetrated by foster parents (F). The council’s early admission of liability was followed by the Supreme Court judgment in Armes v Nottinghamshire County Council [2017] UKSC 60, which held that an LA could indeed be held vicariously liable for abuse by the ex-foster parents, whether the council was also directly negligent in monitoring that foster placement or not. Thereafter, in this later case, Essex CC was awarded £14,000 back from the foster parents, following their submission that the foster carers were responsible for “some damage”, pursuant to the Civil Liability Contribution Act 1978 s1.
The relevant statutory framework at the time of the Essex case, in particular, section 21 of the Child Care Act 1980 required the local authority to “discharge” the duty to provide accommodation and maintenance for a child in their care, the implication of the word “discharge” being that the placement of the child constituted the performance of the local authority’s duty. It followed therefore that the LA did not delegate performance of any ongoing duty to the persons with whom the child was placed. Nevertheless, the Armes case made clear that an LA was not absolved of all responsibility and instead remained subject to multiple duties towards the child in their care but that the proposition that an LA was under a duty to ensure reasonable care was taken for the child’s safety while in the care and control of foster parents, was too broad, and conferred too great a demand on LAs. As such, the statutory regime does not impose on the LA any other responsibility for the day-to-day care of the child or for ensuring no harm comes to them in the course of that care.
The law since Armes is that a council is able to be made vicariously liable for the wrongdoing of a foster parent, even though foster parents are not delegates or agents of the council, but in a relationship with councils where vicarious liability is appropriately imposed based on reasons of public policy. It seems to us that the negligence that was the subject of this litigation was the negligence of the paid providers, which is not controversial at all in terms of the existence of a duty of care owed by foster parents. However, the damage the couple were found responsible for occurred when the young woman was clearly no longer a child. That’s why we can’t understand how it came about that the nature of the relationship between the couple and the victim was not the subject of careful analysis.
The broader question of the nature of the relationship between the Council and the couple and the cared for SS, once she’d reached 18, is this: we can only assume that if the couple were still being paid for care, such that there could have been a duty of care owed to the woman, for which the council feared vicarious liability, then it would have had to have been on the same footing as in Armes. Vicarious liability must have been admitted for the wrongdoing of people in a relationship with the council that would have been contractual if they had been paid, taken in the round. The oddity is that adult placement providers at the time could have been entitled to be seen as independent contractors, like any commercial care provider under s21 National Assistance Act – for whose negligence the council would not normally have expected to have been made liable. In Barnsley the individuals were doing what ordinary relatives would have been likely to do, rather than being ‘real’ foster carers, so the council was not liable. In Essex, the couple were liable, without there being any relationship to remove principles relating to vicarious liability for foster carers, albeit that they did what they did when the child was an adult.
Vicarious liability would not be imposed, it is clear from Armes, if the child is subject to abuse in this case where a person’s parents have been left in charge of a child, 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, due to safeguarding functions, they would not have been recruited, selected, or trained by the local authority so as to enable it to discharge its childcare functions. The decision in Barnsley’s case seems to bear that out.