(Queen’s Bench Division, Males J, 2 December 2014)
Public law children - Local authority – Duty of care – Abuse in foster placement and at home – Whether the local authority had been negligent in failing to remove the child – Whether the local authority was vicariously liable for the abuse of the foster carers
Please see attached file below for the full judgment.
The claimant had spent her childhood living with her mother and her mother’s violent partner, in foster placements and residential children’s homes. She initiated proceedings against the local authority alleging that it had failed in the common law duty of care owed to her while in her mother’s care where she suffered physical and emotional abuse by failing to remove her or put measures in place in protect her. She further claimed that she had suffered physical, sexual and emotional abuse while in two local authority foster placements.
It fell to be determined: whether the limitation period should be disapplied pursuant to s 33 of the Limitation Act 1980; whether the local authority had negligently failed to protect the claimant from harm or injury; whether the relationship between the authority and the foster parents was sufficiently akin to an employment relationship to render the authority vicariously liable for acts of physical and sexual abuse perpetrated by the foster parents; and whether the local authority had owed the claimant a non-delegable duty of care.
The claim was dismissed.
The period of delay, although lengthy, had a reasonable explanation. The claimant was not guilty of culpable delay. The local authority had only suffered a small amount of prejudice as a result of the delay which was relatively limited in the claim. Balancing the relevant factors a fair trial was possible and it would, therefore, he fair and just to disapply the limitation period.
In considering all the evidence the claim had to fail. The allegations failed to make clear precisely what the social workers should have done. The consequences of error in such a situation were serious in either removing the child or leaving her at home. Cogent evidence was necessary. In these circumstances a claim of professional negligence of the social workers could not succeed without expert evidence.
Vicarious liability now extended to those who were not strictly employees of a defendant but with whom the defendant had a relationship akin to employment. The determinative factor was that the local authority had no control over the foster parents. It was essential to the concept of fostering that the authority should not have that control. Further the foster parent did not provide family life on behalf of the authority. The local authority promoted the welfare of the child by placing it in a home where it could be expected to benefit from family life. The foster parents could not be said to be under the control of the local authority to any material degree.
In the case of fostering children in care the five features of a non-delegable duty of care were present. The local authority duty to care for the child was discharged by placing the child in appropriate accommodation but the broader aspects of the duty remained. Care and protection from harm was an integral part of the overall duty and was delegated to the foster parent. However, it would not be fair, just and reasonable for a non-delegable duty to be imposed due to the unreasonable financial burden it would place on local authorities and due to the real danger that the imposition of such a duty would promote consciously or subconsciously, risk-adverse foster parenting. There was a fundamental distinction between placements with foster parents and in a children’s home. It would be difficult to draw a principled distinction between liability for abuse committed by foster parents and by others with whom an authority had decided to place a child including its own parents.
Case No: 1NG90726
Neutral Citation Number:  EWHC 4005 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NOTTINGHAM DISTRICT REGISTRY
Royal Courts of Justice
THE HONOURABLE MR JUSTICE MALES
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NOTTINGHAMSHIRE COUNTY COUNCIL
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Mr Philip Davy (instructed by Uppal Taylor Solicitors) for the Claimant
Mr Steven Ford QC & Mr Adam Weitzman (instructed by Browne Jacobson LLP) for the Defendant
Hearing dates: 11th-25th November 2014
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NA v Nottinghamshire County Council  EWHC 4005 (Fam)