DJ v Barnsley Metropolitan Borough Council
|England & Wales
|Mrs Justice Lambert DBE
|18 July 2023
| EWHC 1815 (KB)
|King's Bench Division
|Case No: F46YM683
 EWHC 1815 (KB)
Mrs Justice Lambert DBE
Case No: F46YM683
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Justin Levinson (instructed by Jordans Solicitors) for the Appellant/Claimant
Steven Ford KC (instructed by Browne Jacobson) for the Respondent/Defendant
Hearing Dates: 14 March 2023 and 20 May 2023
This judgment was handed down remotely at 10am on Tuesday 18 th July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is an appeal against the Order of Mr Recorder Myerson KC of 13 August 2021 dismissing the Claimant's action for damages for personal injury arising from the sexual abuse perpetrated by Mr G, the Part 20 Defendant. Mr and Mrs G were the Claimant's uncle and aunt, Mrs G being the Claimant's mother's sister. Following the disintegration of the Claimant's parent's marriage, the Claimant was placed by the Defendant in voluntary care with the G family in early January 1980. The Claimant was then aged 9. The G family applied to become, and later became, the Claimant's foster parents and the Claimant remained with the G family until his late teens. During this period he alleges that he was sexually assaulted by Mr G.
The Claimant alleges that the Defendant is vicariously liable for the tortious actions of Mr G. The proceedings were issued on 12 May 2020. The Particulars of Claim assert that, by his placement with the G family and by the Defendant's supervision, monitoring, support and maintenance of the placement, the Defendant “ employed or used the G family as foster carers and … the tasks of safekeeping and care were effectively delegated to the G family.” Although Mrs G was the Claimant's maternal aunt, the claim alleges that nonetheless the parties all “ correctly regarded the placement as no different to any other foster placement for a looked after child in terms of the rights and obligations of the Defendant.”
The action came before the Recorder for a trial of the preliminary issue of whether the Defendant was vicariously liable for the tortious acts of Mr G. It was common ground that, in general, the relationship between a local authority and an “ordinary,” or unrelated, foster carer is sufficiently closely akin to the relationship between employer and employee to justify the imposition of vicarious liability on the local authority for tortious acts by the foster carer which are closely connected with that relationship (see ). The Defendant's case was that the Gs however, as maternal relatives of the Claimant, did not stand in a similar relationship with the Defendant as other non-related foster carers. Rather, the relationship between the G family and the local authority was analogous to that of parents in whose care a cared-for child had been placed by a local authority. In these circumstances, the G family was therefore carrying on an activity “which was much more clearly distinguishable from, and independent of, the child care services carried on by the local authority than the care of unrelated children by foster parents recruited for that purpose.” See  .
The Recorder found that the relationship between the Defendant and the Gs (and Mr G in particular) was not akin to one of employer and employee and that, consequently, the Defendant was not vicariously liable for the alleged tortious abuse of the Claimant by Mr G. The action was struck out.
The Claimant appeals that Order with the leave of the single judge. The parties are represented before me, as they were before the Recorder, by Mr Justin Levinson for the Claimant and Mr Steven Ford KC for the Defendant. The preparation of this judgment was paused pending the outcome of the appeal to the Supreme Court in and consequential further submissions by the parties in this case. I am grateful to both Counsel and those assisting them for their help.
I maintain the Order made by the Recorder on 27 July 2021 anonymising the Claimant (as an alleged victim of sexual abuse) pursuant to the Sexual Offences (Amendment) Act 1992. I also continue his Order anonymising the Part 20 Defendant so as to protect the Claimant from, as the Recorder put it, jigsaw identification.
The Judgment Below
The evidence before the Recorder was, for the purpose of the preliminary issue, agreed. The evidence comprised a witness statement by the Claimant and an expert report from a jointly instructed social worker, Paul Doherty. No oral evidence was called. Annexed to Mr Doherty's report was a chronology of social worker involvement with the G family and the Claimant made up from such parts of the social worker records as were legible from the existing microfiche copies. The report also appended extracts of relevant legislation and regulations. The parties had not prepared a statement, or list, of agreed facts for the purpose of the preliminary hearing. The Recorder was invited to review all of the material for himself and identify the key aspects of the evidence for himself, taking into account Counsel's submissions.
The Recorder set out relevant legislation, noting that much of the legislation and the regulations in force at the beginning of the Claimant's involvement with the local authority were replicated in later legislation, notably by the Child Care Act 1980. He set out section 1(3) Children Act 1948 (replicated by s 2(3) Child Care Act 1980) which required a local authority to permit the care of the child to be taken over by a parent, relative or friend where consistent with the child's welfare. He noted that by section 13 of the Children's Act 1948 Act a local authority should discharge its duty to provide accommodation and maintenance for a child it its care by “ boarding him out on such terms as to payment by the authority and otherwise as the authority may… determine.” He set out part of section 18 Child Care Act 1980 requiring that: “ in reaching any decision relating to a child in their care, a local authority shall give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood and shall so far as it practicable ascertain the wishes and feelings of the child regarding the decision and….”
The Recorder noted that regulations made detailed provisions for medical examinations, written reports, visits, case records and so forth. He observed that although the local authority did not exercise day-to-day control over the manner in which the foster parents cared for the Claimant, it nevertheless had powers and duties of approval, inspection, supervision and removal “ without parallel in ordinary family life.”
The Recorder directed himself on the legal principles by citing extensively from the judgment of Cavanagh J in . That case considered the relationship between a tortfeasor, who was an employee of a children's home, and the local authority which had sent the claimant to the children's home. He cited Cavanagh J's review of the Supreme Court authorities of ; and . He referred to Lady Hale's approval (in ) of the reasoning of the Singapore Court of Appeal in that vicarious liability would apply to relationships which “ when whittled down to their essence, possess the same fundamental qualities as an employer/employee relationship.”
He reminded himself of paragraph 71 of in which Lord Reed, in response to the dissenting speech of Lord Hughes, stated that if the local authority had placed a “cared for” child with its parent, then they would have been carrying on an activity (raising their own child) which was much more clearly distinguishable from and independent of, the child care services carried on by the local authority than the care of unrelated children by foster parents recruited for that purpose.” He commented that “ in my judgement the Supreme Court agreed that the question of the primary task of the foster parent is relevant. Parents paradigmatically are the example of those raising their own children. The task for them is — per Lord Reed – independent of the local authority's statutory obligations. In my judgement that is the basis of distinguishing parents from the local authority, and therefore of finding that it would be unjust to impose vicarious liability on the local authority for the acts of the parents.”
He concluded that the case before him was “ a difficult case” in which it was necessary to consider the five incidents described by Lord Phillips in . The Recorder set out his conclusions in respect of each of the five incidents. He had little difficulty in resolving the question of the existence of incident 1 (means to compensate) and the third (whether the activity being undertaken by Mr G was part of the defendant's business activity). Both were resolved in the affirmative. He concluded that the Defendant would have deeper pockets to compensate the Claimant and that Mr G was undertaking an activity which was part of the defendant's business activity because the defendant was obliged to assume the care of the claimant, took the claimant into care, boarded him out pursuant to the regulations, allowed the Gs to foster him pursuant to the Act and assumed parental rights.
He considered the existence...
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