Local authorities are liable for abuse suffered in foster care, following a Supreme Court ruling believed to have “enormous” implications for councils across the country.
In a judgment published yesterday, the Supreme Court ruled by a four-to-one majority that Nottinghamshire council was “vicariously liable” for the actions of two foster carers who abused claimant, Natasha Armes, when she was in their care during the 1980s.
The authority will pay damages to Ms Armes, although the exact amount is still to be decided. The court accepted the foster carers would have “insufficient means” to meet a substantial award.
Supreme Court justice Lord Reed said the relationship between the local authority and its foster carers is such that it can be properly assumed the abuse was, “committed by the foster parents in the course of an activity carried out for the benefit of the local authority”.
Nottinghamshire council had a duty to safeguard and promote Ms Armes’ welfare and yet recruited, trained and placed her with foster carers who went on to abuse her, emotionally and sexually.
Lord Reed said vicarious liability is “inherent” in the choice to place a child with foster carers.
“If the public bodies responsible for decision-making in relation to children in care consider it advantageous to place them in foster care, notwithstanding the inherent risk that some children may be abused, it may be considered fair that they should compensate the unfortunate children for whom that risk materialises,” he ruled.
Although foster carers have responsibility for the day-to-day management of a placement and parenting, the Supreme Court ruled it is not necessary for there to be “micro-management, or any high degree of control”, in order for vicarious liability to be imposed.
It is, however, unlikely that vicarious liability would apply to a local authority if parents or other family members have abused a child.
‘Serious financial impact’
Patrick Ayre, a child care consultant and an expert witness for negligence claims against local authorities, said the judgment would have “enormous” implications.
“Before this judgment, local authorities were only held liable for abuse committed by foster carers if the local authority had been negligent in the way it selected or supervised them. [Yesterday], the Supreme Court ruled that the local authority must be liable for any wrongdoing by its foster carers just as it would be for wrongdoing committed by social workers and residential care staff directly employed by the local authority,” Ayre said.
He said this would mean children abused in foster care were able to make a claim against a local authority, and he would expect “several hundred” such claims over the next few years, with a “serious financial impact” on the authorities as a result.
Opening the floodgates
Concerns that a ruling of vicarious liability could discourage local authorities from placing children in foster care on financial grounds were, “difficult to accept”, Lord Reed said, while the risk of liability might encourage more “adequate vetting and supervision” of foster carers.
He pointed out that even if a local authority is disinclined to place a child in foster care, councils are equally vicariously liable for the abuse of children in residential care homes.
He added: “If…there is substance in the floodgates arguments advanced on behalf of the local authority – if, in other words, there has been such a widespread problem of child abuse by foster parents that the imposition of vicarious liability would have major financial and other consequences – then there is every reason why the law should expose how this has occurred”.
‘Fraught with difficulty’
Supreme Court Justices ruled four-to-one that the local authority was vicariously liable in Ms Armes’ case, but said it did not have a non-delegable duty of care.
Lord Hughes, the judge who disagreed that vicarious liability applied in this case, said that if it applied to “ordinary” foster parents on the basis they are doing the local authority’s business, it should apply to family and friends placements with connected persons.
The extension of strict liability needs “careful justification”, he warned. “Once one examines the nature of fostering, its extension to that activity does not seem to me to be either called for or justified, but, rather, fraught with difficulty and contra-indicated,” Hughes said.
Colin Pettigrew, corporate director for children and families in Nottinghamshire, said the council accepted the court’s findings. “Ms Armes should have been safe in the care of her foster carers 30 years ago and she wasn’t, this is a matter of huge regret to us,” Pettigrew said.
“This Supreme Court determination will have far-reaching implications for us and every other local authority across the land with children’s social care responsibilities.
Pettigrew added that the Judge, at an earlier hearing, found no negligence on the part of the social workers or the local authority, and that neither was negligent in the assessment, approval, monitoring or supervision of the foster placements.
John Simmonds, director of policy, research and development at CoramBAAF, said the case would be significant, but needs to be “fully digested”.
“The case is historic and the current statutory and regulatory framework is different. But the relationship between local authorities and foster carers is complex,” Simmonds said.
He added: “The legal responsibility for the child is carried by the local authority if there is a Care Order in place and the birth family still holds parenting responsibility even if there are limitations to the way they can exercise this. There still continue to be questions about permissions for haircuts, school trips and overnight stays despite the amended regulatory framework which allows delayed responsibility.”
He said he hopes the fostering stocktake, currently being carried out by the Departmenr for Education, would debate these issues and find proposals that “protect children, assign responsibility for the overall management of the placement but never loses sises of children and young people’s need for a secure, safe, stable placement”.