Foster Carers & Vicarious Liability

a young girl leaning against a wall with her knees pulled up to her chest

Last week the courts made a long awaited judgement and held that a local authority could be vicariously liable for torts committed by foster carers against children in local authority care.

What is vicarious liability?

Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person, even if they did not commit the tort themselves. One of the common examples of vicarious liability is in the workplace. An employer can be liable for the acts or omissions of its employees, provided that the act or omission occurred within the course of their employment.

The Background

We have seen a huge influx in the past decade with people reporting sexual abuse in children’s care homes, some dating back to the 80’s and also children who were placed in the foster system reporting abuse. Up until now, there has been little victims of abuse in foster care could do in regards to claiming compensation for their ordeal. As society changes and develops it appears the law on vicarious liability is developing too, which is a welcomed, long awaited step in the right direction.

In Armes v Nottinghamshire the Supreme Court reversed a decision made by the Court of Appeal in 2015 and decided that local authorities can be held liable for the for torts committed by foster carers against children in local authority care.

The case involved a woman who was abused as a young child. She had been taken into the care of Nottingham County Council in February 1985, when she was aged seven. Between March 1985 and March 1986 she was fostered by a Mr and Mrs Allison. During that period, she was physically and emotionally abused by Mrs Allison as she would use grossly excessive violence to discipline her. Between October 1987 and February 1988 she was fostered by the Blakely’s. During that period, she was sexually abused by Mr Blakely as he would molest her when bathing her and when she was alone in her bedroom. In each case, the abuse took place in the foster home.

The Decision

The question the Court had to decide was whether the local authority should compensate the Claimant for the abuse which she suffered, even though the local authority had not of itself caused any harm to the Claimant.

The Claimant argued the local authority should compensate her for two legal reasons:-

  1. It remained responsible for her care even though it had found foster carers to look after the Claimant on a day to day basis (“the non-delegable duty of care principle”), or
  2. For reasons of public policy, namely that local authorities are insured and able to afford compensation payments, it should be held responsible (“the vicarious liability principle”).

In relation to a non-delegable duty the determining question the Court asked was whether the day-to-day foster care was undertaken by the local authority itself or whether it was simply arranged by the local authority, and was ultimately undertaken by the foster carers themselves. The Court decided that although the local authority was responsible for making and supervising foster care arrangements it outsourced the day to day care to the foster carers and therefore did not owe her a non-delegable duty of care.

The second aspect of vicarious liability was more promising for the Claimant. In this instance the court considered a previous judgement. Vicarious liability depends upon it being fair, just and reasonable to impose vicarious liability and depends upon the answers to two questions.

  1. The Relationship Test – What sort of relationship must exist between a foster carer and a local authority before the local authority can be made vicariously liable for the conduct of the foster carer?
  2. The Misconduct Test – What sort of misconduct does the foster carer have to engage in for vicarious liability to be imposed on the local authority?

It was held that;

  • The local authority was more likely to have the means to compensate the claimant than the foster carer and would be insured. Most foster parents had insufficient means to able to meet an award of damages and were unlikely to have insurance against their own criminal behaviour.
  • The abuse was committed as a result of foster caring undertaken by the foster carer on behalf of the local authority
  • Foster caring was a part of the business activity of local authority
  • The local authority, by employing the foster carers to carry out foster caring will have created the risk of the abuse committed by the foster carer; and
  • The foster carer will, to a greater or lesser degree, have been under the control of the local authority.

All of these aspects pointed toward the conclusion that the foster parents provided care to the child as an integral part of the local authority’s child care services and therefore the local authority should be held vicariously liable.

How can Watson Woodhouse Solicitors help you?

We have seen first-hand the damaging effects which sexual abuse can have on our clients and have been fighting to provide victims of abuse in homes and foster placements more routes to justice. Now the courts have finally recognised that these individuals need compensating and imposing vicarious liability on the local authority does just that.
If you have suffered abuse from foster carers whilst in a local authority placement and would like to speak to someone to discuss your options, get in touch for a free, no obligation chat with one our highly experienced solicitors in our personal injury department or contact Alistair Smith on 01642 247 656.

Frequently Asked Questions:

I was in foster care many years ago, is there a time limit to bring a case?

Currently there is no limitation on when you can bring a claim. Therefore claims may arise from many years ago.

What if my foster carers do not have the means to pay compensation?

The Armes v Nottinghamshire case means that if your carers do not have the means to pay compensation the Local Authority will be held vicariously liable to pay compensation to you.