Abusive foster parents - limiting liability for local authorities
Monday, 8th February 2016
Foster parents are clearly not "employed" by the local authority as they are not staff working in children's homes. Neither is the relationship between foster parents and the authority "akin to employment" similar to the more recent cases of abuse involving ministers, priests and lay preachers. What, then, is the liability of local authorities in relation to the actions of foster parents who abuse the children they have placed in their care?
The case of NA v Nottingham CC  came before the Court of Appeal in July 2015. Judgment was given in November. It was not contended that the local authority had failed to exercise reasonable care in placing the Claimant with the alleged abusive foster parents or that they failed to adequately supervise them. The two issues were:
(a) Whether the recent impetus to extend the types of relationships that satisfy the test of vicarious liability could go one step further to include the relationship between local authority and foster parent; and
(b) Could an act of abuse by a foster parent be caught by a local authority's non-delegable duty of care in the context of the law as it stood in the 1980s, thus imposing a strict liability?
The Claimant's argument was that the foster parent / local authority relationship was "sufficiently proximate" for there to be vicarious liability. The Court of Appeal judges unanimously dismissed this argument, principally on the basis that foster parents provide family life for children and this is not in any way part of the activities of a local authority or which can be controlled by them.
The Court then moved on to the question of a non-delegable duty of care, given the recent consideration in the Supreme Court case of Woodland (see our article in October 2015). Although the appeal judges dismissed the Claimant's arguments on this issue, their reasoning differed.
One reason put forward (Tomlinson LJ) was that no strict liability applied as the local authority does not provide foster care as part of its statutory duties, but only arrange for others to provide it. A further reason was that a non-delegable duty arises from a negligent act, not a criminal act, such as assault or abuse (Burnett LJ).
The third judge (Black LJ), perhaps offered the most practical reason for rejecting the Claimant's argument to extend strict liability. This was that extending strict liability in this way would be contrary to public policy as it would result in a local authority becoming too cautious in allowing a child in care to be fostered (or even to be returned to their own parents), so that many children would be deprived of a decent chance of a family life.
Foster parents who abuse the children in their care are unlikely to have sufficient funds to pay compensation to their victims. As a result, it was probably inevitable that their victims would look further afield to try to extend liability for the abuse to local authorities. The case of NA v Nottingham CC, however, puts the lid firmly back on the jar.