Fostering in a New Age of Vicarious Liability?
Pages | 294-301 |
Published date | 01 May 2018 |
Date | 01 May 2018 |
DOI | 10.3366/elr.2018.0489 |
Author |
In
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”),
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 Males
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.
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