Child abuse: council liable for foster parents
Case Armes v Nottinghamshire County Council (2017) The Times, November 6, Supreme Court
Facts A was taken into care by NCC in 1985 when she was aged seven. She was physically and sexually abused by successive foster parents with whom she was placed while in care. NCC had not been negligent in the selection or supervision of the foster parents. The issue was whether NCC was liable to A.
Decision 1. NCC was liable.
The doctrine of vicarious liability could only apply where the relationship between the defendant and the tortfeasor had particular characteristics justifying the imposition of such liability.
A classic example of such a relationship was that between employer and employee. The doctrine could also apply where the relationship had certain characteristics similar to those found in employment, subject to there being a sufficient connection between the relationship and the commission of the tort.
In Cox v Ministry of Justice the Supreme Court referred to five incidents of the relationship between employer and employee as making it fair, just and reasonable to impose vicarious liability and which could properly give rise to vicarious liability where other relationships had the same incidents and could be treated as akin to employment:
* The employer was more likely to have the means to compensate the victim than the employee and could be expected to have insured against that liability;
* The tort would have been committed as a result of activity being taken by the employee on behalf of the employer;
* The employee’s activity was likely to be part of the business activity of the employer;
* The employer, by employing the employee to carry out the activity, would have created the risk of the tort committed by the employee;
* The employee would have, to a greater or lesser degree, have been under the control of the employer.
The relevant activity of NCC was the care of children who had been committed to its care. It was under a statutory duty to care for such children. In order to discharge that duty, so far as it involved the provision of accommodation, maintenance and daily care, it recruited, selected and trained persons who were willing to look after children in their homes as foster parents. It inspected their homes before any placement was made.
NCC paid allowances to foster parents, provided them with equipment and provided training. Foster parents were expected to co-operate with social workers with whom they had regular meetings. NCC involved foster parents in decision-making and required them to co-operate with arrangements for contact with the child’s family.
Foster parents could not be regarded as carrying on an independent business of their own. They provided care to the child as an integral part of its child care services.
It was impossible to draw a sharp line between the activity of NCC and the foster parents. It was NCC which possessed parental powers in relation to the children.
NCC exercised powers of approval, inspection, supervision and removal without any parallel in ordinary family life. It exercised a significant degree of control over what the foster parents did and how they did it.
Vicarious liability was only of practical relevance where the principal tortfeasor could not be found or was not worth suing and the person sought to be made vicariously liable was able to compensate the victim of the tort.
These conditions were satisfied in the present context. Most foster parents had insufficient means to meet a substantial award of damages and were unlikely to have relevant insurance. NCC could more easily compensate the victims of injuries, which were often serious and long lasting.
Vicarious liability would not be imposed if the abuse had been perpetrated by the child’s parents, if the child had been placed with them, because the parents would not have stood in a relationship of the kind described in Cox v Ministry of Justice.