Council not responsible for foster carers’ abuse of a child, finds Court of Appeal

Nottinghamshire could not have had enough control over the foster carers' day-to-day actions to be found liable for "cruel and despicable" treatment

Photo: Voisin/Phanie/Rex Features (Posed by model)

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.

Reasonable care

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.

Not negligent

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.

Family life

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.”

Private setting

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.

‘Artificial distinction’

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.

Delegated function

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”.

Inherently risky

“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.

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6 Responses to Council not responsible for foster carers’ abuse of a child, finds Court of Appeal

  1. Allan Graham November 18, 2015 at 10:45 am #

    I find it extraordinary to argue that foster carers could not be said to be acting as agents of the local authority. They are not independent in the sense they are, or their agencies are, contracted to a local authority so that ultimate accountability lies with the authority.

    But perhaps I have not understood the argument.

    • Sean Ferrer November 23, 2015 at 11:00 pm #

      Allan, I don’t believe you’ve misunderstood the argument at all. Even the final paragraph of this sorry story is flawed: ‘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.’ I cannot accept that as a justification towards this ruling. Local authorities assess and approve foster carers, they do not do the same with all prospective parents across society. This statement alone demonstrates a shocking naivete of the judge presiding over this case. In my view, it was an utterly incompetent ruling.

  2. MAX November 20, 2015 at 8:50 pm #

    I would suggest that the Foster Carer in law is not a representative and acting on behalf of the local Authority , therefore the Local Authority cannot be accountable.
    The Foster Carer offers their services to the L.A. as a self employed person, therfore they are accountable for their own actions not the L.A.

  3. Sean Ferrer November 23, 2015 at 10:52 pm #

    Foster carers are recruited, assessed, and approved by Ofsted-inspected fostering agencies. Upon approval, they are then entrusted with the care of vulnerable, traumatised children by local authorities, which holds ultimate corporate parental responsibility, irrespective of the freedoms provided by delegated authority. I am astonished that (a) the abusive foster carers in this case were deemed not to be acting as agents of the local authority, when that is precisely what they are, from whichever angle one looks at this, and (b) that as a result the local authority was not held ultimate accountable for dereliction of duty as the corporate parent. As a former care leaver myself, to me this represents a gross miscarriage of justice, and I would urge an appeal process because without this, a dangerous precedent is being set.

  4. Catherine November 26, 2015 at 5:00 pm #

    This is a shocking judgement because it removes all and any responsibility from the LA for the welfare of children. . Taking this logically, LA’S would not be inclined to even vet Foster Carers because, as a result of this Ruiling, there are no safeguards for children and no sanctions for LAs Unbelievable!

  5. Mrs M Davis November 26, 2015 at 8:04 pm #

    As a former foster carer I know that foster carers do not have any legal parental responsibility for foster children, the local authority have it, in most cases. Therefore they are ultimately responsible for the child.I am not saying they ignored the abuse, and in reality the person to blame is the abuser. I am well aware that the young lady in question needs some closure, she must feel so let down by everyone in her life,ultimately the duty of care lies with the authority.They had the responsibility of approving both sets of carers and therefore they are responsible.