FOSTER CARER ABUSE – LOCAL AUTHORITY LIABLE

LANDMARK DECISION IN THE SUPREME COURT FINDS THAT A LOCAL AUTHORITY ARE VICARIOUSLY LIABLE FOR ABUSE CARRIED OUT BY FOSTER CARERS

Armes (Appellant) v Nottinghamshire County Council (Respondent) [2017] UKSC 60

The Supreme Court have handed down a decision which for the first time confirms that a local authority will be held vicariously liable for the actions of a foster carer.

Before this decision, the only remedy for damages for a child abused by a foster carer was to pursue a claim against their abuser.  Foster carers will not have insurance and will often have insufficient means to satisfy any judgement.  Therefore, victims of abuse by foster carers have been left without a remedy.

Background

In this case the Claimant, Miss Armes, was physically, emotionally and sexually abused by her foster carers.  There was no evidence that the local authority was negligent in placing the claimant with those foster carers or that they failed to properly monitor her.

The Claimant therefore put forward a case that the local authority were still liable for the abuse on the basis that they were in breach of a non-delegable duty of care, or on the basis that they were vicariously liable for the abusive torts committed by the foster parents.

The claim was dismissed at first instance in the High Court, and by the Court of Appeal.

Supreme Court’s decision

However, the Supreme Court overturned the previous decisions and decided that it is fair, just and reasonable to extend the doctrine of vicarious liability to cover the acts of foster parents towards foster children placed in their care, even in the absence of any negligence on the part of the local authority.

The leading decision of Lord Reed dismissed various arguments put forward by the Defendant.  The local authority had suggested that imposing vicarious liability in these circumstances might discourage local authorities from placing children in foster placements, and instead place them in residential homes.  Lord Reed countered this by suggesting that he could see the economic advantage only if the incidence of abuse in residential centres was much lower than in foster placements but no evidence was provided on this.  In any event, the cost of residential placements was much higher than foster placements.

The Defendant also raised a floodgates argument suggesting that creating vicarious liability in these instances would lead to raft of claims being brought.  Lord Reed suggested that if there was such a widespread problem of abuse by foster parents that the imposition would have major financial consequences then the law should expose this and, in fact, the risk of liability might encourage more adequate vetting and supervision.

Lord Reed very carefully discussed the cost to society if appropriate measures are not put in place to protect vulnerable children.  Victims of abuse commonly experience a range of long-term emotional and behavioural problems, are disproportionately represented both in the criminal justice system and users of mental health services, often need to receive state benefits because they are unable to take up employment.  This led Lord Reed to conclude that the problem with the resources argument put forward by the Local Authority is that, if it is accepted, the greater the problem, the less likely there is to be a remedy.  This could not be a sustainable argument.

Impact and future developments

This is clearly a significant decision and now provides a potential remedy for children and adults who are victims of abuse by foster carers, where previously they had none.

We await the Court of Appeal’s decision in CN v Poole Borough Council [2016] EWCA 569 where the Defendant is challenging the right of children bringing a claim of negligence against a local authority for failing to protect them from harm.  It would seem that a decision in the Defendant’s favour in that case would be inconsistent with the principles and finding of this current decision.

A further update will be circulated once the CN is handed down.

If you have any queries about the implications of the latest decision please do contact Gary Walker.