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Fostering in a New Age of Vicarious Liability?

Document Cited in Related
Vincent
Pages294-301
Published date01 May 2018
Date01 May 2018
DOI10.3366/elr.2018.0489
Author
INTRODUCTION

In Armes v Nottinghamshire County Council,1 the UK Supreme Court considered the liability of a local authority for abuse which had been suffered by the claimant as a child, after being placed by the defendent with foster parents. Was the local authority responsible, either directly or vicariously, for the abuse perpetrated by the foster parents? The claim based on direct liability – alleging a breach of a non-delegable duty to ensure that care was taken of the claimant – was dismissed unanimously.2 However, a majority held that the local authority would be vicariously liable for the abuse. The decision continues, in an accelerative fashion, the trend of extending the personal scope of vicarious liability beyond the paradigmatic employer-employee relationship.3

This note takes stock of this extension and considers its application to the fostering regime in Scotland. Fostering is part of the suite of methods which a Scottish local authority can employ to arrange for the care of looked-after children. Children in need of care may be placed, under the local authority's supervision, with a parent (referred to as “looked after at home care”),4 or with a relative or family friend (“kinship care”).5 Where this is not possible, the child may be placed into residential care.6 The local authority also may apply for a permanence order empowering it to regulate the residence of the child,7 which may or may not include authority for the child to be adopted.8 And in some cases, the authority may seek to arrange for the child to be adopted, transferring all parental responsibilities and rights to the adopters.9 A relative newcomer to this landscape is the “corporate parent”, which are institutions (e.g. NHS trusts, Police Scotland, universities) tasked with promoting the interests of looked-after children and care-experienced young people.10 This note, however, focuses primarily on the position of foster carers, as did the decision in Armes.

 FACTS AND LEGISLATIVE CONTEXT

The claimant was taken into the care of the defendant local authority in 1985, which placed her with a series of foster parents. She suffered physical, emotional, and sexual abuse during two of these placements. Years later, she claimed compensation from the defendant on the basis of its vicarious liability for the abuse, which had to be determined in accordance with the legislative regime in force at the time of the abuse.

In outline, the defendant selected the foster parents, provided relevant training, appointed a social worker to dispense guidance throughout the placement, paid allowances, reimbursed expenses, and provided loans of essential equipment. The child was assigned her own social worker who visited the family home regularly. The parents also had to present the children for medical examination at the order of the defendant, which retained the power to consent to the child's treatment. The defendant's approval was necessary before the child could go on holiday, attend school trips, or sleep over with friends. Ultimately, the defendant could remove the child from the foster home if it deemed the placement no longer to be in the child's best interests.

Against this background, Mr Justice Males11 and the Court of Appeal12 held that the relationship between the foster parents and the local authority was not one which gave rise to vicarious liability. This prompted the claimant's appeal to the UK Supreme Court.

 VICARIOUS LIABILITY: AN OVERVIEW

A defendant will be vicariously liable for a tortfeasor's acts if:

the relationship between the defendant and the tortfeasor is such as to give rise to vicarious liability (a “relationship akin to employment”), and

the tortfeasor's acts or omissions are so closely connected with its relationship with the defendant to make it fair, just and reasonable for the defendant to be vicariously liable for them.

 Armes considered the first criterion: was the local authority vicariously liable for the tort of a foster parent with whom it had placed a child in exercise of its statutory powers? As...

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