LOCAL AUTHORITIES VICARIOUSLY LIABLE FOR ABUSE COMMITTED BY FOSTER CARERS

9 May 2018

HHD are successfully dealing with a number of cases which engage the recent Supreme Court decision NA v Nottinghamshire County Council [2017] UKSC 60.

The facts of NA v Nottinghamshire County Council [2017] UKSC 60.

The appellant was in the care of the local authority, Nottinghamshire County Council, and suffered physical, sexual and emotional abuse by foster carers with whom she was placed by the local authority. The case proceeded on the basis that Nottinghamshire County Council were not negligent in its selection, recruitment and supervision of the foster carers, but that they were nevertheless liable to the appellant for the abuse by the foster parents. 

The appellant claimed liability on two bases: 

  1. That the local authority owed her a non-delegable duty, or alternatively,
  2. That the local authority was vicariously liable for the foster parents’ tortious conduct.

Judgement of NA v Nottinghamshire County Council [2017] UKSC 60.

The Supreme Court allowed the appeal by a majority of 4-1, finding the local authority vicariously liable for the abuse committed by the foster parents, but rejecting the argument that the local authority were liable on the basis of a non-delegable duty.

Non-delegable duty of care – The Supreme Court held that a local authority are not under a non-delegable duty to ensure that reasonable care is taken for the safety of children in care while they are in the care and control of foster parents. This argument is too broad and is too great a responsibility to place on local authorities.

Vicarious liability – The Supreme Court held that local authorities are vicariously liable for the acts of the foster parents for the following reasons:

  1. Integration and business activity:  Fostering is an integral part of the local authority’s business. The local authority carried out the recruitment, selection and training of foster parents, paid their expenses, and supervised the fostering. Therefore the abuse committed by the foster parents against the appellant was committed by the foster parents in the course of an activity carried on for the benefit of the local authority.
  2. Creation of risk: The local authority had created the risk by placing the appellant in foster care. The placement of children with foster parents creates a relationship of authority and trust and close control cannot be exercised by the local authority. Therefore children in care are particularly vulnerable to abuse.
  3. Control: The local authority exercised a significant degree of control over the foster parents: it exercised powers of approval, inspection, supervision and removal. A high degree of control was not necessary for vicarious liability to be imposed on the local authority for the actions of the foster carers.
  4. Ability to pay compensation: Most foster parents have insufficient means to pay a substantial award of compensation whilst local authorities can more easily compensate the victims of abuse

 Summary

It is now recognised that local authorities such as Health and Social Care Trusts can be held vicariously liable for the wrongful acts of foster parents to a child in foster care. This means that local authorities are held liable even though they are not themselves at fault for the injuries to children in foster care which are caused by negligent acts and abuse by foster parents. 

If you have suffered abuse whilst in foster care or under the care of an institution, please contact our experienced team at HHD – Matthew Higgins (matthewhiggins@hhdsolicitors.com) and Lauren Jones (laurenjones@hhdsolicitors.com)  

 

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