NA v Nottinghamshire County Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Tomlinson,Lord Justice Burnett,Lady Justice Black
Judgment Date12 November 2015
Neutral Citation[2015] EWCA Civ 1139
Date12 November 2015
Docket NumberCase No: B3/2014/4264

[2015] EWCA Civ 1139

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM NOTTINGHAM DISTRICT

REGISTRY

MR JUSTICE MALES

1NG90726

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Black

Lord Justice Tomlinson

and

Lord Justice Burnett

Case No: B3/2014/4264

Between:
NA
Appellant
and
Nottinghamshire County Council
Respondent

Christopher Melton QC and Philip Davy (instructed by Uppal Taylor Solicitors) for the Appellant

Steven Ford QC and Adam Weitzman (instructed by Browne Jacobson Solicitors) for the Respondent

Hearing date: 14 July 2015

Lord Justice Tomlinson
1

The Appellant Natasha Armes, who has waived the anonymity to which she would otherwise be entitled, has lead a tragic life. She was born in July 1977. The judge below, Males J, observed, with good reason, that she had had a very unhappy childhood and that her unhappy childhood experiences had cast a long shadow over her life. This appeal is concerned with two episodes in her early life. From the age of seven until achieving her majority she was in the care of the Defendant local authority. In the exercise of its powers the local authority placed her into foster care with Mr and Mrs A between 25 March 1985 and 27 March 1986, and with Mr and Mrs B between 23 October 1987 and 23 February 1988. This appeal is concerned with the question whether the local authority is liable in respect of her physical abuse by Mrs A and her sexual abuse by Mr B. It is unnecessary for present purposes to go into the details, although they are to be found in the judge's comprehensive and careful judgment, [2014] EWHC 4005 (QB). It suffices to say that her treatment by Mrs A was cruel and her treatment by Mr B utterly despicable.

2

The Appellant suggests that the local authority is liable to her either because it is vicariously liable for the torts of the foster carers or because it owed to her a non-delegable duty of care to ensure that she was protected from harm. The judge rejected both arguments. So far as concerns vicarious liability, he considered that it was a crucial and essential feature of foster care that the local authority has no relevant control over the foster parents as to the manner in which, on a day to day basis, the foster parents provided to the child family life, bringing up the child as a member of their own family. That feature was inimical to the imposition of vicarious liability. So far as concerns non-delegable duty, the judge concluded that it would not be fair, just and reasonable to impose such a duty on the local authority. The Appellant challenges these conclusions. The Respondent local authority seeks to uphold them, and argues that the imposition of a non-delegable duty is additionally precluded by the circumstance that the local authority had not "delegated" to the foster carers a function which is an integral part of its own positive duty assumed towards the Appellant and that the foster carers could not therefore be said to be exercising the local authority's own care of the Appellant and the element of control that goes with it. Essentially, as I understand it, the argument is that the lack of control which precludes vicarious liability militates equally against the imposition of a non-delegable duty.

3

It is worth emphasising that we are on this appeal concerned and concerned only with the liability of this local authority for these events in the period 1985–1988, which in turn must be evaluated in the light of the legislative framework in the context of which the local authority exercised its powers. That legislative framework has since changed, and nothing that we say in relation to the position which obtained in 1985–1988 is of any necessary relevance to the position today. I recognise of course that there may be other cases of historic abuse to which our decision is relevant.

4

I turn therefore to the contemporary legislative framework which, as the judge observed at paragraph 160 of his judgment, defines the relationship between a local authority and foster parents, although it also defines the relationship between a local authority and a child in its care. The judge summarised the legislation in a manner which is acknowledged to be accurate and I propose therefore gratefully to adopt his summary:-

" Fostering — the legal framework

160. For both arguments, vicarious liability and non-delegable duty, the starting point is the status of foster parents. The relationship between a local authority and foster parents is defined by statute. The important statutes in this case are the Children and Young Person Act 1969 (CYPA 1969) and the Child Care Act 1980 (CCA 1980), which applied before the coming into force of the Children Act 1989 in October 1991 when the claimant was 14 years old. The claimant came into the care of the defendant local authority under section 1 of the CYPA 1969 which provided for the circumstances in which a care order could be made. These included the court being of the opinion that a child was being ill-treated.

161. Section 24 of the CYPA 1969 (and subsequently section 10 of the CCA 1980 which was in the same terms) set out the powers and duties of a local authority when a care order was made, which (in short) were "the same powers and duties with respect to a person in their care by virtue of a care order … as a parent or guardian would have". From the date of the first interim care order, therefore, the defendant assumed parental responsibility for the claimant.

162. Part III of the CCA 1980 dealt with the treatment of children in the care of local authorities. The general duty to a child in care was identified in section 18(1) and was that "in reaching any decision as 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", giving "due consideration" to the child's own wishes, "having regard to his age and understanding".

163. Section 21 specified the various ways in which a local authority could discharge its "duty to provide accommodation and maintenance" for a child in care. It provided for a range of possibilities, including (a) fostering with approved foster parents (described in the section as "boarding out"), (b) a children's residential home, of which there were two kinds, community homes and voluntary homes, (c) living with a parent, and (d) living with a relative or friend:

"(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.

(3) The terms, as to payment and other matters, on which a child may be accommodated and maintained in any such home as is referred to in section 80 of this Act shall be such as the Secretary of State may from time to time determine."

165. Section 22 provided for the Secretary of State to make regulations for the welfare of children who were boarded out. The relevant regulations were the Boarding-Out of Children Regulations 1955 (as later amended although the amendments are not material) which prescribed the circumstances in which children might be boarded out and the supervisory duties of the local authority. The fundamental purpose of boarding-out appears from regulation 1 and the undertaking which foster parents were required to give, set out in the Schedule to the regulations. This was that a child was placed with foster parents "to live in their dwelling as a member of their family". The undertaking was that "We/I … having … received … CD … into our/my home as a member of our/my family undertake that — we/I will care for C.D. and bring him/her up as we/I would a child of our/my own". Thus the whole concept of fostering was to give a child something regarded by society as precious, namely the experience of family life.

166. The regulations required the local authority to visit the foster home and gave it the duty to remove a child if it appeared that boarding-out was no longer in the child's best interest, while a supervising visitor was empowered to remove a child immediately if he or she considered that conditions in the home endangered the child's health, safety or morals. However, the regulations did not give the local authority or its visiting social workers day-to-day control over the way in which the foster parents provided care for the child. That was a matter for the foster parents, consistently with the objective of giving the child a normal experience of family life."

It is relevant to note that whilst the foster parents are required to undertake to "look after his/her health and consult a doctor whenever he/she is ill and will allow him/her to be medically examined at such times and places as [the council] [the organisation] may require," nonetheless the Regulations at paragraph 8 impose upon the local authority the duty to make adequate arrangements for a child who...

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