Armes v Nottinghamshire County Council

JurisdictionEngland & Wales
JudgeLord Reed,Lady Hale,Lord Kerr,Lord Clarke,Lord Hughes
Judgment Date18 October 2017
Neutral Citation[2017] UKSC 60
Date18 October 2017
CourtSupreme Court
Armes
(Appellant)
and
Nottinghamshire County Council
(Respondent)

[2017] UKSC 60

before

Lady Hale

Lord Kerr

Lord Clarke

Lord Reed

Lord Hughes

THE SUPREME COURT

Michaelmas Term

On appeal from: [2015] EWCA Civ 1139

Appellant

Christopher Melton QC

Philip Davy

(Instructed by Uppal Taylor Solicitors)

Respondent

Steven Ford QC

Adam Weitzman QC

(Instructed by Browne Jacobson LLP)

Heard on 8 and 9 February 2017

Lord Reed

( with whomLady Hale, Lord KerrandLord Clarkeagree)

1

As a child, the claimant was abused physically and sexually by foster parents with whom she was placed while in the care of the defendant local authority. The local authority were not negligent in the selection or supervision of the foster parents. The question the court has to decide is whether the local authority are nevertheless liable to the claimant for the abuse which she suffered, either on the basis that they were in breach of a non-delegable duty of care, or on the basis that they are vicariously liable for the wrongdoing of the foster parents.

The facts
2

The claimant was taken into the care of the local authority in February 1985, when she was aged seven. Statutory care orders followed. Between March 1985 and March 1986 she was fostered by a Mr and Mrs Allison. The judge found that during that period, she was physically and emotionally abused by Mrs Allison. Between October 1987 and February 1988 she was fostered by a Mr and Mrs Blakely. The judge found that during that period, she was sexually abused by Mr Blakely. In each case, the abuse took place in the foster home in the course of day-to-day care and control of the claimant. Mrs Allison employed grossly excessive violence to discipline her. Mr Blakely molested her when bathing her and when she was alone in her bedroom.

3

The fostering arrangements involved in the two placements were different, and demonstrate that analogies with ordinary family life need to be treated with care. Mr and Mrs Allison generally had a large number of children living with them at any given time, and their home had been categorised as a "family group foster home". The appellant was one of nine or ten children fostered there at the relevant time. Mr and Mrs Allison also had four children of their own. The fostering arrangements gave rise to a fairly rapid turnover of foster children, mostly under the age of ten. Mr and Mrs Blakely, on the other hand, fostered children in a more conventional family setting. They had two foster children living with them at the material time—the claimant and a younger girl—besides two older children of their own.

The statutory framework
4

The statutory framework during the relevant period was contained in the Children and Young Persons Act 1969 ("the 1969 Act"), the Child Care Act 1980 ("the 1980 Act"), and the Boarding-Out of Children Regulations 1955 ( SI 1955/1377) ("the Regulations"). The claimant was committed to the care of the local authority by virtue of a care order made under section 1 of the 1969 Act. Section 10 of the 1980 Act set out the powers and duties of a local authority when a care order was made:

"(1) It shall be the duty of a local authority to whose care a child is committed by a care order … to receive the child into their care and … to keep him in their care while the order … is in force.

(2) A local authority shall, subject to the following provisions of this section, have the same powers and duties with respect to a person in their care by virtue of a care order … as his parent or guardian would have apart from the order …"

In terms of section 12(2) of the 1980 Act, those functions were in addition to the functions conferred on the authority by Part III of that Act. Part III included section 18(1), which imposed a general duty on the local authority, in reaching any decision as to a child in their care, to give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood, and so far as practicable to ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.

5

Section 21 of the 1980 Act provided:

"(1) A local authority shall discharge their duty to provide accommodation and maintenance for a child in their care in such one of the following ways as they think fit, namely, —

(a) by boarding him out on such terms as to payment by the authority and otherwise as the authority may, subject to the provisions of this Act and regulations thereunder, determine; or

(b) by maintaining him in a community home or in any such home as is referred to in section 80 of this Act; or

(c) by maintaining him in a voluntary home (other than a community home) the managers of which are willing to receive him;

or by making such other arrangements as seem appropriate to the local authority.

(2) Without prejudice to the generality of subsection (1) above, a local authority may allow a child in their care, either for a fixed period or until the local authority otherwise determine, to be under the charge and control of a parent, guardian, relative or friend."

6

It follows from section 10(1) of the 1980 Act that the local authority were required to keep the claimant in their care, and to comply with the duties imposed by section 10(2), so long as the order remained in force, even if the claimant was "boarded out" in accordance with section 21(1)(a): that is to say, was placed with foster parents. It is implicit in the opening words of section 21(1) that the local authority's duties included a duty to provide accommodation and maintenance for a child in their care, and it follows from section 21(1)(a) and (2) that a foster placement, and a placement with the child's family, were among the means by which that duty could be discharged.

7

Section 22 of the 1980 Act enabled the Secretary of State to make regulations making provision for the welfare of children boarded out by local authorities under section 21(1)(a), including provision "for securing that children shall not be boarded out in any household unless that household is for the time being approved by such local authority as may be prescribed by the regulations" (section 22(2)(b)), and provision "for securing that children boarded out under section 21(1)(a) of this Act, and the premises in which they are boarded out, will be supervised and inspected by a local authority and that the children will be removed from those premises if their welfare appears to require it" (section 22(2)(d)).

8

Turning to the Regulations, regulation 1 provided that the Regulations applied to the boarding of a child to live with foster parents in their dwelling as a member of their family. Regulation 4 required the local authority not to allow a child to remain boarded out with any foster parents if it appeared that the boarding-out was no longer in his best interests. Regulation 5 provided for the child to be removed from the foster parents forthwith if the visitor appointed under the Regulations to supervise his welfare considered that his health, safety or morals were endangered. Regulation 6 required the child to undergo a medical examination before being placed with foster parents, except in a case of emergency. Regulation 7 required the local authority to arrange medical examinations of boarded-out children every six to 12 months, depending on the age of the child. Regulation 8 required adequate arrangements to be made for the child to receive medical and dental attention. Regulation 9 required visitors to make written reports about the children and houses they visited. Regulation 10 required the local authority to maintain case records in respect of every child boarded out by them. Regulation 11 required the local authority to maintain a register of foster parents and boarded-out children.

9

In relation to boarding-out arrangements expected to last for more than eight weeks, regulation 17 required that the foster home should be visited in advance, and a report obtained from the visitor as to its suitability. Regulation 19 required that, where possible, a child should be boarded out with foster parents who were of the same religious persuasion, or who gave an undertaking to bring the child up in that religious persuasion. Regulation 20 required the local authority to obtain an undertaking from the foster parents, stating (amongst other things) that they had received the child into their home as a member of their family, that they would allow the child to be medically examined at such times and places as the local authority might require, that they would inform the local authority immediately of any serious occurrence affecting the child, that they would at all times permit any person authorised by the local authority to see the child and to visit their home, and that they would allow the child to be removed from their home when so requested by any person authorised by the local authority. Regulation 21 required the local authority to ensure that a visitor saw the child and visited the foster parents' house within one month after the commencement of the placement, and thereafter as often as the welfare of the child required, but not less often than every one to three months, depending on the age of the child, the length of the placement, and any change of address. Regulation 22 required the local authority to ensure that reviews of the child's welfare, health, conduct and progress were carried out, by persons who did not usually act as visitors, within three months after the child was placed with any foster parents, and thereafter as often as was expedient in the particular case, but not less often than once in every six months.

10

It is apparent from the Regulations that, although the local authority did not exercise day-to-day control over the manner in which the foster parents cared for...

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