(Court of Appeal, Black, Tomlinson and Burnett LJJ, 12 November 2015)
Public law children – Abuse – Local authority liability – Child suffered physical and sexual abuse while in foster care – Whether the local authority was vicariously liable for the abuse or whether it owed the child a non-delegable duty of care to ensure she was protected from harm
Please see attached file below for the full judgment.
The woman’s appeal from a determination that the local authority was not vicariously liable for abuse suffered by her while in foster care and that it did not owe her a non-delegable duty of care to ensure she was protected from harm was dismissed.
The 38-year-old woman was placed in the care of the local authority from the age of 7 until her majority, initially with Mr and Mrs A and then with Mr and Mrs B. The issue for determination was whether the local authority was liable for the physical abuse by Mrs A and sexual abuse by Mr B.
At first instance the judge rejected the woman's arguments that the local authority was liable by way of vicarious liability for the torts of the foster carers or because it owed to her a non-delegable duty of care to ensure she was protected from harm. The woman appealed. The liability of the local authority fell to be assessed in light of the legislative framework in place at the time of the woman's placement between 1985 and 1988.
The appeal was dismissed.
The provision of family life was not and could not be part of the activity of a local authority or of the enterprise upon which it was engaged. Inherent in family life was a complete absence of external control over the imposition or arrangement of day-to-day family routine. The control retained by a local authority was at a higher or macro level. Micro-management of the day-to-day family life of foster children or of their foster parents would be inimical to that which fostering set out to achieve.
The control retained by a local authority over and above the proper selection of foster parents and adequate supervision of the placement was irrelevant to the risk of abuse occurring during the unregulated course of life in a foster home. There was not the remotest of analogies to be drawn with the situation in Catholic Child Welfare Society v Various Claimants
 1 All ER 670 in which the relationship between the Brothers and the Institute was described as being closer than that of an employer and its employees. The manner in which the Brother teachers had been obliged to conduct themselves as teachers had been dictated by the Institute's rules. In the circumstances of this case vicarious liability for the assaults perpetrated upon the woman did not arise.
Furthermore, there was no relevant non-delegable duty in play. In arranging a foster placement the local authority discharged rather than delegated its duty to provide accommodation and maintenance for a child. The local authority entrusted to the foster parents the day-to-day delivery of accommodation but accommodation within a family unit was not something which the local authority could itself provide and that could not properly be regarded as a purported delegation of duty. The permitted choice of foster care was inherently provided by third parties.
When a child was taken into local authority care the local authority was under a duty to care for the child, to promote its welfare and protect it from harm, but it did not accept an unqualified duty. The duties were qualified by reasonable practicability.
The only circumstances in which a claimant might resort to a non-delegable duty of care would be if vicarious liability had been unsuccessful. it was difficult to imagine a situation where a court could conclude there had been no vicarious liability for an assault but the defendant could be fixed with liability for breach of a non-delegable duty not to assault the claimant. Applying the principles in the Catholic Child Welfare Society
case, if there was no vicarious liability for an assault upon a child in care then the common law should not impose liability via a different route. Further, an important consideration was that the relationships between local authorities and children in care arose in the context of statutory duties. None of those statutory provisions had been in force between 1985 and 1988. The different approach arising in the context of duties of care in negligence provided no basis for imposing the non-delegable duty of care.
Even if proper care had been taken by the local authority in placing the child with suitable foster carers, it was not always possible to prevent harm coming to a child from the foster parents. The imposition of liability for the actions of the foster parents by means of a non-delegable duty, operating in the absence of the negligent behaviour by the local authority, would be likely to provoke the channelling of the local authorities' scarce resources into attempting to ensure nothing went wrong and to insure against potential liability. Local authorities would be likely the become more cautious in placing a child with foster parents and might place children who would otherwise benefit from a foster home in children's homes.
Such a .liability might extent in cases where children were placed with family members. That sort of strict liability might affect the willingness of the local authority to take what might otherwise be seen as a manageable risk of allowing the child to remain at home and thus reduce the chance of reuniting the child with his own family. It was material, when considering a possible non-delegable duty rather than liability in negligence, to remember that the local authority had the powers and duties of a parent. If the local authority's powers and duties under statute were those of a parent, and where it was day-to-day care by a third party that was under consideration rather than strategic and management decisions on the part of the local authority, it was difficult to see why the local authority's liability should be more onerous than a parent's.
Case No: B3/2014/4264Neutral Citation Number:  EWCA Civ 1139IN THE COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM NOTTINGHAM DISTRICT REGISTRYMR JUSTICE MALES 1NG90726Royal Courts of JusticeStrandLondonWC2A 2LLDate: 12/11/2015
LADY JUSTICE BLACK
LORD JUSTICE TOMLINSON
LORD JUSTICE BURNETT
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Nottinghamshire County Council
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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
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NA v Nottingham County Council  EWCA Civ 1139Judgment