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Court of Appeal foster care abuse ruling welcome news for councils and insurers

12 November 2015

In NA v Nottinghamshire County Council the Court of Appeal ruled today that local authorities do not owe a child in foster care a non-delegable duty and also confirmed that a local authority cannot be held vicariously liable for the wrongful actions of foster parents. It had already been established that the Council was not negligent in this case. Although the concepts of non-delegable duties and vicarious liability are evolving the court was clear that neither should apply to fostering situations. This means that local authorities cannot be liable, without fault, for the wrongful acts of foster parents.

Had the court decided otherwise it could have:

  • resulted in an unreasonable financial burden being placed on local authorities in terms of their ability to maintain foster care resources 
  • led to 'risk averse foster parenting' and in the way children in care are accommodated, and 
  • could have led to a significant increase in claims
all adding to already significant budgetary pressures.

Ceri-Siân Williams and Nick Parsons from Browne Jacobson’s social care claims team acted for the local authority. Ceri-Siân Williams said: 

“Abuse of children is never acceptable, and the defendant is sympathetic to the claimant’s unhappy childhood experiences. However, this is an important decision for local authorities. It reaffirms the position in relation to abuse by foster parents. Had the decision at first instance been overturned on appeal it would have meant that the local authority would have been strictly liable for proven abuse by foster parents. It could have had an adverse impact on how children in care are currently accommodated, and meant that local authorities faced numerous similar claims for historical abuse, all at considerable cost. In times of austerity this would put significant financial pressure on local authorities.

However, this judgment does not mean that individuals cannot seek compensation if they are abused by foster parents; they can still pursue the foster parents direct, or continue to bring claims in negligence where a local authority has breached its duty of care.” 

The claimant, NA, was placed with two sets of foster parents: Mr and Mrs A from 1985 - 1986 and Mr and Mrs B from 1987 – 1988.

At first instance the judge allowed the claim to proceed out of time and found that the claimant had been physically and sexually abused by her foster parents. However, the claim failed because the Judge held that the local authority social workers had not been negligent and so had done nothing wrong. A local authority could not be vicariously liable for the assaults, and nor did it owe the claimant a non-delegable duty of care.

The three Court of Appeal judges have today affirmed the earlier ruling that a local authority cannot be held vicariously liable for the deliberate acts of foster parents as the relationship between the council and a foster parent is not "akin to employment".

Lord Justice Tomlinson, went on to add that a local authority in arranging a foster placement does not delegate its duty to provide accommodation and maintenance for the child but discharges it, so cannot owe the child a non-delegable duty. Lord Justice Burnett and Lady Justice Black also agreed that a non-delegable duty was not owed but for different reasons. Lord Justice Burnett said that the assaults were a deliberate act which fell outside the scope of the duty owed and Lady Justice Black, found on the basis that it would not be “fair, just and reasonable” to impose such a duty on a local authority. 

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