DJ v Barnsley Metropolitan Borough Council

Hearing date: 19 June 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 23 July 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lady Carr of Walton-on-the-Hill, THE LADY CHIEF JUSTICE, Lord Justice Bean AND

The question arising on this appeal is whether a local authority can be vicariously liable for torts committed against a child by a foster carer who is also a relative of the child. In Armes v Nottinghamshire County Council [2017] UKSC 60, [2018] AC 355, the Supreme Court held that a local authority can be vicariously liable for torts committed against a child by a foster carer who is not related to the child but left open the question whether vicarious liability can arise where they are related.

The facts of the present case occurred four decades ago. They are set out in greater detail below but can be summarised briefly as follows. In 1980, after the claimant, DJ, then aged ten, had been abandoned by his parents, the defendant local authority (“the local authority”) arranged for him to go to live with his maternal aunt and uncle, Mr and Mrs G, whom he had not previously met. Over the next few months, the local authority carried out a foster assessment of the Gs and in August 1980, after they had been approved as foster carers, DJ was “received into care” by the local authority. In 1983, the local authority “assumed parental rights” for DJ under the legislation then in force. DJ continued to live with the Gs until his early twenties.

Many years later, in 2018, DJ alleged that he had been sexually assaulted by Mr G as a child and brought a claim for compensation against the local authority asserting that they were vicariously liable. The question whether a local authority could be vicariously liable in these circumstances was heard as a preliminary issue by Mr Recorder Myerson QC (“the recorder”) who ruled against DJ. His decision was upheld by Lambert J (“the judge”) on appeal. This is therefore a second appeal from the recorder's decision.

The law – (1) relevant statutory provisions

The events described above took place before the passing of the landmark Children Act 1989 which (as subsequently amended) contains the current statutory provisions governing the support for children and families by local authorities in England (Part III) and care and supervision orders (Part IV). Prior to the 1989 Act, the law was found in piecemeal provisions which had been introduced in and/or amended by various statutes over the previous forty years. At the time that DJ went to live with the Gs in 1980, the principal statute was the Children Act 1948, supplemented and amended by provisions in the Children and Young Persons Act 1963, the Children and Young Persons Act 1969 and the Children Act 1975. Many of those provisions were subsequently consolidated in the Child Care Act 1980. That came into force on 1 April 1981 and was thus the governing legislation at the time of the local authority's “assumption of parental rights” in respect of the claimant in 1983.

When reading the relevant provisions set out below, it should be remembered that prior to the 1989 Act the term “care” was used more broadly in the context of local authorities than it is now. It was used to describe all children being cared for or accommodated by local authorities, some of whom were subject to care orders made by a court (under a range of statutory provisions) but many others who were not. Under the current law, a child is only “in care” if subject to a court order under Part IV of the 1989 Act. There are many other children who are not subject to court orders but are being “provided with accommodation” by a local authority, mainly under s.20 of the 1989 Act. The umbrella term used in that Act to describe both categories of children – those in care and those being accommodated – is “looked after children”.

Under the current law, the principal legal difference between a child who is in care under a care order and a child who is being accommodated by the local authority is that the local authority has parental responsibility for the former but not for the latter. At the time of the events with which this case is concerned, the concept of parental responsibility was not part of our law. It was introduced by the 1989 Act as “the conceptual building block” to emphasise “the practical reality that bringing up children is a serious responsibility, rather than a matter of legal rights” ( “The Children Bill: The Aim” Professor Brenda Hoggett QC, as she then was, Family Law (1989) Vol 9 p217). The previous law used a variety of expressions, in particular “powers and duties” in respect of a child, which were vested in a local authority on the making of a care order, and “parental rights” which could be “assumed” by a local authority by the passing of a resolution.

Turning to the statutory provisions relevant to the present case, s.1 of the Children Act 1948 provided (so far as relevant):

“1. Duty of local authority to provide for orphans, deserted children, etc

(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen —

(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost; or

(b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his accommodation, maintenance and upbringing; and

(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child,

it shall be the duty of the local authority to receive the child into their care under this section.

(2) Where a local authority have received a child into their care under this section, it shall, subject to the provisions of this Part of this Act, be their duty to keep the child in their care so long as the welfare of the child appears to them to require it and the child has not attained the age of eighteen.

(3) Nothing in this section shall authorise a local authority to keep a child in their care under this section if any parent or guardian desires to take over the care of the child, and the local authority shall, in all cases where it appears to them consistent with the welfare of the child so to do, endeavour to secure that the care of the child is taken over either —

(a) by a parent or guardian of his, or

(b) by a relative or friend of his, being, where possible, a person of the same religious persuasion as the child or who gives an undertaking that the child will be brought up in that religious persuasion.”

These provisions were re-enacted in s.2 of the Child Care Act 1980.

S.13(1) of the Children Act 1948, headed “Provision of accommodation and maintenance of children in care” was substituted by s.49 of the Children and Young Persons Act 1969 so as to provide as follows:

“(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 64 of the Children and Young Persons Act 1969; 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) of this section, 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.”

These provisions were re-enacted in s.21 of the Child Care Act 1980. S.14 of the 1948 Act provided for the making of regulations to make provision for the welfare of children boarded out by local authorities under s.13(1). At all material times, the relevant regulations were the Boarding-out of Children Regulations 1955 which, under regulation 1, applied inter alia to the “boarding of a child … by a local authority in whose care a child is … with foster parents to live in their dwelling”. The regulations make provision for regular visits, medical examinations, reviews and the keeping of records.

S.1(1) of the Children and Young Persons Act 1963 provided (so far as relevant):

“It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive children into or keep them in care under the Children Act 1948 … or to bring children before a juvenile court; and any provisions made by a local authority under this subsection may, if the local authority think fit, include...