Christopher Ratcliffe https://www.ntu.ac.uk/staff-profiles/law/christopher-ratcliffe
Vicarious liability is not a tort, yet will take up a substantial chapter in any respectable tort text. It is a doctrine of responsibility which attaches liability to a defendant for the civil wrongdoing of another with an underlying policy objective that the defendant will have the means to compensate the claimant, and is likely to have insured against the risk. The usual position is that vicarious liability operates were the relationship between the liable party (i.e. the party legally responsible) and the tortfeasor (i.e. the party who committed the tortious act) is one of employment. However, the Supreme Court (‘SC’) in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, in adopting the approach of the Court of Appeal (‘CoA’) in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, held that that vicarious liability could also arise where the relationship between the liable party and the tortfeasor was ‘akin to employment’, in essence, employment in all but name.
Prior to 2014, as foster parents are not employees of a local authority (‘LA’) and never have been, claimants who brought civil claims for compensation arising from sexual and/or physical abuse within the foster care system were required to prove that the relevant LA was liable under the principles of common law negligence. In essence, claimants would have the herculean task of trying to establish that the LA, in breaching the duty of care owed to the claimant, acted below the standards of a reasonably competent LA in light of the standards of the day. As such claims are usually historic, this could involve investigating events that occurred several decades ago, where the cogency of evidence had been impacted by the passage of time e.g., incomplete social service records, LA policy and procedure lost or destroyed, and social workers untraceable or deceased. Thus, adding strength to defendants’ arguments that claims were statute-barred because a fair trial was no longer possible due to the delay in bringing proceedings, even if the reasons for that delay were understandable because of the abuse suffered. In addition, liability in such claims would hinge on lengthy and complex expert social work opinion, preferably from someone practising in the field at the material times.
Whilst being able to rely on the doctrine of vicarious liability doesn’t remove other components of a civil child abuse claim, such as proving that the abuse occurred, that the abuse caused psychological and/or psychiatric injury, and overcoming any limitation arguments from the defendant, it does make civil abuse claims more straightforward and removes the cumbersome necessity to prove negligence. Assuming the claimant proves the abuse, vicarious liability provides a direct line of strict liability against a defendant, subject to any arguments that the tortfeasor was on a ‘frolic of their own’. At odds with foster placements, children who had been received into care and placed within residential children’s home, would be able to rely on the operation of vicarious liability. Care staff within children’s home would be employees, and therefore the traditional relationship of employment would be present between the tortfeasor and the LA.
In JB & BB v Leicestershire CC, June 2014 (Unreported) the County Court considered the relationship between foster parents and the LA. Whilst dismissing that the relationship was one where vicarious liability could arise, the court held that the LA owed a non-delegable duty of care to a foster child following the SC decision in Woodland v Essex CC [2013] UKSC 66. Therefore, the LA was liable for any breach of duty (including tortious assaults) on the part of the foster parents, even in the absence of common law negligence. Consideration of the fostering relationship came before the SC in Armes – v – Nottinghamshire CC [2017] UKSC 60.
In Armes the notion of a non-delegable duty of care was dismissed, on the basis that the LA discharged its duty to accommodate and care for the foster child by placing them with foster parents, rather than delegating the duty. However, in applying the principles laid down in Cox v Ministry of Justice for the imposition of vicarious liability, the court did hold that the relationship between the foster parents and the LA was one that could give rise to vicarious liability. Foster parents did not carry out an independent business of their own and therefore any abuse would be committed in the course of an activity carried on for the benefit of the LA. The LA created the risk of abuse by placing children with foster parents and exercised significant control over the placement, including holding powers to supervise, inspect, and remove the child if necessary. Foster parents usually had insufficient means to compensate claimants, however, the LA did have the means. The SC found that there was no evidence in Armes that would suggest the imposition of vicarious liability would discourage LAs placing children in foster care. On this basis, the County Council was vicariously liable for the abuse committed by the foster parents in this instance.
It is important to note that Armes was decided against a statutory regime for the protection of children which was in place prior to the Children Act 1989 which lays down the current statutory framework. The court did not consider the position under the current statutory framework, although in his dissenting judgment, Lord Hughes was concerned that the decision of the majority would extend vicarious liability to placements with family and friends under the Children Act 1989 regime. That said, whilst confirming that vicarious liability would not have extended to a placement with the claimant’s own parents, whether vicarious liability would arise where the foster parents and child were related, was left open.
This question has recently been considered by the Court of Appeal.
In DJ v Barnsley MBC [2024] EWCA Civ 841 the claimant was fostered by an uncle and aunt in August 1980. Prior to that time, since early 1980, the claimant had lived in the same household under an arrangement facilitated and approved by the local authority, during which it was anticipated that the claimant would be fostered by his uncle and aunt who, following a LA assessment, were approved as foster carers. The placement became a formal foster home for the claimant in August 1980 when he was received into the care of the LA which ignited the LA’s statutory duty to care for the claimant. Thereafter, the placement was subject to supervision, monitoring and control, along with scrutiny of the claimant’s welfare, by the LA. Whilst living in the household, the claimant alleged sexual abuse by his uncle and claimed damages accordingly.
The CoA held that, even though the foster parents had not undergone any formal training, from August 1980 when they had been approved as foster parents and the claimant had been received into care, he was looked after as a foster child. There was therefore a relationship ‘akin to employment’ where vicarious liability could arise between the LA and the uncle. This was the case, even though the LA had not assumed parental responsibility for the claimant until some years later.
What is clear from the judgment is that informal arrangements to look after a child between a LA and the family of a child will not be sufficient to establish vicarious liability. There would need to be a formal fostering arrangement with all the necessary ingredients for vicarious liability to arise.
There are some important things to note from the judgment in DJ. Similar to the decision in Armes the court considered the position prior to the imposition of the Children Act 1989 and, as in Armes, made it clear that the position only related to that historic child protection law prior to 1991 (When the Children Act 1989 came into force), and not current child protection legislation. Secondly, the CoA refused to lay down a general rule that there would always be a relationship giving rise to vicarious liability when a foster child is fostered by relatives, DJ was decided on the ‘specific facts of the case’.
The judgment in DJ can be seen as a positive step forward and recognition that even when a foster child is related to their foster parents, the relationship between the foster parents and the LA can still have the essential components to be ‘akin to employment’. After all, as the CoA made it clear, the salient relationships to examine for the purpose of vicarious liability are the relationship between the LA and the foster parents, and the LA and the child, rather than the relationship between the child and the foster parents.
That said, the judgment is a positive step forward for all those seeking redress for abuse within foster placements. Further guidance, subject to any appeal, may be delivered from the SC but hopefully the SC will agree with the CoA, after all why should it matter whether foster parents and the foster child are related? The salient relationships for any assessment of vicarious liability are between the LA and the foster parents, and the foster parents and the child, not between the foster parents and the child.
Further Reading:
Various Claimants v Catholic Child Welfare Society [2012] UKSC 56
Comments