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NA v Nottinghamshire County Council - a welcome judgment for local authorities

12 November 2015
The Court of Appeal has handed down judgment in the much awaited case of NA v Nottinghamshire County Council which deals with two key questions:
  • is the relationship between a local authority and foster parent such that a local authority should be vicariously liable for their wrongful acts?
  • does a local authority owe a child in foster care a non-delegable duty?

A reminder of the findings at first instance

The claimant was born in July 1977. She was placed with foster parents, Mr & Mrs A, between 25 March 1985 and 27 March 1986 and with Mr & Mrs B, between 23 October 1987 and 23 February 1988.

The defendant won at first instance, Males J:

  • decided to exercise his section 33 discretion (of the Limitation Act 1980) to allow the claim to proceed out of time
  • found that the claimant had been physically abused by Mrs A and sexually abused by Mr B
  • accepted the evidence of the defendant’s social care expert that there was no negligence on the part of the social workers involved with the claimant and her family
  • concluded that a local authority cannot be vicariously liable for the deliberate acts of foster parents, and 
  • a local authority does not owe a child in foster care a non-delegable duty.

Issues appealed

The appellant appealed Males J’s findings that (i) the local authority was not vicariously liable for the actions of the foster parents, and (ii) it was not “fair, just and reasonable” to impose a non-delegable duty on a local authority for children in foster care.

Whilst the respondent agreed that Males J had made the correct decision it cross appealed on two bases (i) that Males J was wrong to find that criterion 4 of Lord Sumption’s 5 criteria (set out in Woodland v Essex County Council [2013]) was engaged, and that (ii) the assaults committed by the foster parents were wider in scope than the duty owed by a local authority to a child in care.

Vicarious liability

Lord Justice Tomlinson, Lord Justice Burnett, and Lady Justice Black unanimously agreed that the relationship between a local authority and a foster parent is not “akin to employment” adopting the test in Various Claimants. Consequently a local authority cannot be vicariously liable for the deliberate wrongful acts of foster parents.

Non-delegable duty

Although the judges agreed that the local authority does not owe a child in foster care a non-delegable duty their reasons were different.

Lord Justice Tomlinson decided that the 4th of Lord Sumption’s criteria was not met. At paragraph 24 of the judgment he said:
In order to be non-delegable a duty must relate to a function which the purported delegator, here the local authority, has assumed for itself a duty to perform. Fostering is a function which the local authority must, if it thinks it the appropriate choice, entrust to others. By arranging the foster placement the local authority discharged rather than delegated its duty to provide accommodation and maintenance for the child. True it is that the local authority entrusted to the foster parents the day to day delivery of accommodation, but accommodation within a family unit was not something which the local authority could itself provide and this cannot properly be regarded as a purported delegation of duty. It was inherent in the permitted choice of foster care that it must be provided by third parties”.

Lord Justice Burnett stated that “if, as is uncontroversial, parents would not be saddled with a non-delegable duty of this sort (a duty not to assault the Appellant), that conclusion provides strong support for the proposition that a local authority should not be either” (paragraph 42.)

Lady Justice Black agreed with Males J it was not “fair, just and reasonable” to impute a non-delegable duty on the local authority. Her view is that “to impose a non-delegable duty on a local authority would be unreasonably burdensome, and, in fact, contrary to the interests of the many children for whom they have to care” (paragraph 60.)

What next?

This is an important decision for local authorities and their insurers as it restricts the situation in which effectively strict liability will be imposed upon them for children in foster care. It would however be no surprise if the appellant appealed, in which case this will not be the end of this particular story.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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