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Abuse by foster parents – can the Local Authority be sued?

 

Almost every case I write about is full of human tragedy and sadness, and this one particularly so. It involves a woman who when she was a child was placed in the care of foster parents, one presumes because it was decided that her own parents could not perform that task. That particular foster carer went on to physically and sexually abuse her. Dreadfully sad and unspeakably awful. I hope (but don’t know) that the foster carers have been convicted and punished.

The issue for this case was whether the woman could sue the Council who placed her there. They did not know of the abuse at the time, and there is no suggestion here that there was negligence on their part  (which would be either that the fostering checks hadn’t been carried out, or that they failed to make the visits and ongoing checks that were required by law at that time, or that they learned of the abuse and failed to act).  Councils can be sued for negligence, if any of those things were alleged and capable of being proven, but negligence is not the case pleaded here. The detail makes it plain that none of those failings were present.

 

Instead, it is something called “vicarious liability”, which in simple language means that an employer can be held legally responsible in some situations for things that its employees did. Vicarious liability can be a useful remedy where the organisation was not negligent, but where they have the necessary care and control over the employee’s actions. It is useful in particular because generally an employer (for example a Council) has more money (and insurance) than the wrong-doers themselves, who would not have the financial means to pay the compensation that the victim would really deserve.

So the fundamental question for the Court of Appeal here was “Can the Council be vicariously liable for criminal actions carried out by foster carers?”

 

NA v Nottingham County Council 2015   (It should be Nottinghamshire, but who am I to question the Court of Appeal?)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1139.html

 

Unpleasantly, a lot of the law around vicarious liability involves the sexual abuse of children, with the lead case being one about the Catholic Child Welfare Service Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1

 

“35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

 

In this case, the critical element was (v) whether the employee (the foster carers) to a greater or lesser degree was under the control of the employer (the Council)

 

The Court of Appeal ruled unanimously that there was no vicarious liability here

 

The provision of family life is not and by definition cannot be part of the activity of the local authority or of the enterprise upon which it is engaged. Family life is not capable of being so regarded, precisely because inherent in it is a complete absence of external control over the imposition or arrangement of day to day family routine, save insofar as is provided by the general law or by ordinary social conventions. The control retained by the local authority is at a higher or macro level. Micro management of the day to day family life of foster children, or of their foster parents in the manner in which they create the day to day family environment, would be inimical to that which fostering sets out to achieve, for the reasons expressed by McLachlin CJ at paragraph 24 of her judgment. The control retained by the local authority, over and above the proper selection of foster parents and adequate supervision of the placement which is here not in issue, is thus irrelevant to the risk of abuse occurring during the unregulated course of life in the foster home. In the Catholic Child Welfare case Lord Phillips described the relationship between the Brothers and the Institute as “closer than that of an employer and its employees.” The manner in which the Brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. There is in my view not the remotest of analogies to be drawn between that situation and the relationship of local authority to foster parents.

 

 

and

 

For vicarious liability to exist, there would have to be (1) the necessary relationship between the foster parents and the local authority and (2) the requisite close connection between that relationship and the abuse that they committed (see paragraph 21of Lord Phillips’ judgment in Various Claimants v Catholic Church Welfare Society, supra, and also paragraph 88 where he proceeds to apply what he has distilled from the authorities in the preceding paragraphs). I do not consider that the relationship between the foster parents and the local authority was of the required nature. It was not, to my mind, sufficiently akin to employment. Although the significance of control in the relationship has changed over the years, it remains a relevant aspect of the assessment of whether there is vicarious liability. Certain aspects of the care of a child by foster parents are, and were at the relevant time, regulated and the local authority have a supervisory duty over the placement, which can be ended if they consider it appropriate. But the essence of the arrangement is, just as it was at the time with which we are concerned, that the child is placed with the foster parents to live with them as a member of their family. The child’s day to day life is in the charge of the foster parents, who are expected to give the child as normal an experience of family life as they can. The degree of independence that this gives the foster parents is not indicative, in my view, of a relationship giving rise to vicarious liability.

 

 

There was a second part of the claim which was that this was a “non-delegable duty”  – i.e that it was the Council’s job to provide a child whom they are looking after with a safe home and they could not delegate that duty to the foster carers. This is a much more technical argument, and beyond the scope of this blog to explore in detail, but the Court of Appeal ruled that there was not such a duty here. That possible remedy arises largely from a case called  Woodland v Swimming Teachers Association and others [2013] UKSC 66 [2014] AC 537, decided in the Supreme Court and setting out five ingredients.

The Court of Appeal did not think that this case met all of those Woodland ingredients, and were also cautious about viewing the Woodland ingredients in isolation.

 

 

  • I do not propose to take my discussion of this point any further because it seems to me that consideration of the five features set out in Lord Sumption’s paragraph 23 should not be undertaken in a limbo. This is because the question of liability for non-delegable duty has got to be approached having very much in mind what he said at paragraph 25 of the Woodland case:

 

“The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.”

Lord Sumption explained why he considered that no unreasonable burden would be imposed in that case. In this case, however, I am of the view that to impose a non-delegable duty on a local authority would be unreasonably burdensome and, in fact, contrary to the interests of the many children for whom they have to care.

 

  • I therefore find myself in agreement with Males J’s conclusion about this aspect of the case. I take into account the desirability of providing a remedy of substance for someone in the Appellant’s position. Nothing that I say here should be taken as suggesting that I am anything other than deeply conscious of the dreadful treatment she has suffered and sympathetic to the lasting impact that it must have had upon her. However, there are powerful reasons against the imposition of liability in circumstances such as the present ones.
  • It is a fundamental principle of social work practice that children are best placed in a family environment. If they cannot live with their parents, the majority of children are therefore likely to benefit most from a foster placement. Careful screening of prospective foster parents, training, supervision of the foster family, proper checks and balances in relation to the foster parents’ practice, and regular contact between social services and the child all play their part in ensuring that the child is safe with the foster parents. If, through the duty that it places upon the local authority, the law of negligence improves the chances of these safeguards being rigorously maintained, it is a very good thing. But, as this case demonstrates, even proper care on the part of the local authority cannot always prevent harm coming to the child from the foster parents. It seems to me that the imposition of liability for the actions of the foster parents by means of a non-delegable duty, operating in the absence of negligence on the part of the local authority, would be likely to provoke the channelling of even more of the local authorities’ scarce resources into attempting to ensure that nothing went wrong and, if such were possible, into insuring against potential liability (see paragraph 201 of Males J’s judgment). Particularly influential in my thinking is the fear that it would also lead to defensive practice in relation to the placement of children. Local authorities would inevitably become more cautious about taking the risk of placing children with foster parents and may possibly place some children who would otherwise have had the benefit of a foster home in local authority run homes instead, simply in order that the local authority can exert greater control over their day to day care. Males J dealt with this at paragraph 204 of his judgment. It was referred to also in the Canadian case of KLB v British Columbia [2001] SCR 404, in the context of vicarious liability, at paragraph 26.
  • The imposition of liability on the local authority might also give rise to another undesirable consequence for children. Important amongst the ways in which, under the statutes of the time, the local authority could discharge its duty to provide accommodation for the child was by allowing the child to live with a parent or relative (see section 21(2) of the Child Care Act 1980). If the local authority had a non-delegable duty towards a child in their care under a care order, making them liable for abusive actions on the part of a foster parent, there seems little principled basis for saying that they would not also be liable for such actions on the part of a parent with whom the child had been placed in this way. That sort of strict liability might well, it seems to me, affect the willingness of the local authority to take what would otherwise be seen as the manageable risk of allowing the child to live at home, thus reducing the chance of reuniting the child with his or her own family where that would, in fact, benefit the child. That is the point made by Males J at paragraph 206.
  • To these points, I would add that it is material, when considering a possible non-delegable duty rather than liability in negligence, to remember that the local authority has the powers and duties of a parent. I raised earlier my uncertainty as to what the precise implications of this are in the context of non-delegable duty. However, whatever they may be, I think it appropriate to bear in mind that a parent would not have a strict liability for harm caused by someone to whom he or she had entrusted the child’s care, for instance a nanny or, to take Burnett LJ’s examples, friends or relations. If the local authority’s powers and duties under statute are those of a parent, and where it is day to day care by a third party that is under consideration rather than strategic and management decisions on the part of the local authority, it is difficult to see why the local authority’s liability should be more onerous than a parent’s.
  • I acknowledge that although I am quite clear in my conclusion that the judge was right that the imposition of a non-delegable duty would not be fair, just and reasonable, I have not expressed firm views about the precise nature of the duty that should be considered to be at the heart of the non-delegable duty argument or about all of the five indicia of non-delegable duty. As Baroness Hale observed at paragraph 28 of the Woodland case, the common law is a dynamic instrument, but caution is needed in developing it. The law in relation to non-delegable duties is still evolving, as the Woodland case itself showed, and it seems to me preferable that I should only determine those matters which are essential to the determination of the appeal which, for the reasons that I hope appear from the preceding paragraphs, I would dismiss.

 

 

 

It does seem awful that this woman has no legal remedy for the awful things that were done to her – assuming that Criminal Injuries Compensation is not open to her (it may not be, due to the passage of time).  Nothing in this case affects a Local Authority’s liability under negligence – i.e if they had known of the abuse and failed to stop it, or it had been a foreseeable risk that they had failed to prevent through carelessness.

 

There are some hints in this judgment that it might go up to the Supreme Court – as it is largely interpretation of two distinct and recent Supreme Court authorities, that seems a distinct possibility.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

14 responses

  1. I would have thought the main concern would have been to find out why the child had been removed in the first place .If she had been removed from a safe environment with loving parents due to someone’s opinion that because she might be emotionally abused one day in the future she should be given to complete strangers (and unfortunately sexually abused there ! )A case for sueing the LA I would have thought ….
    If on the other hand she had been removed from a “baby P type environment” then there was proper justification for the move and no cause for action against the LA;
    It is stated as fact with no proof whatever that social workers etc were not aware of the abuse going on at the time.
    My experience of similar cases tells me that if they had been they would have done their very best to cover it up ; Children in care are muzzled and gagged and forbidden to tell their parents about the terrible abuse they sometimes suffer in fostercare otherwise contact is immediately stopped;If children go to the police to report abuse in care they are told to consult their social worker who will usually accuse them of exaggeration or lying as indeed to be fair some children do lie about abuse if they think it might help them to return home but a great many tell the truth! Remember the case of the boy who saw his quite well known grandmother at contact with a broken jaw injured while in care?Both he and the grandmother at contact were fobidden to mention it or ask how it happened by the supervisor who threatened to stop contact if one word about it slipped out !
    Headline in the following Booker column “Don’t mention my broken jaw”!
    Free speech and free communication is forbidden to children when taken into care.Their laptops and mobile phones are confiscated to isolate them from family and friends,and later at contact they cannot discuss their case or coming home.These kids are treated worse than murderers in prison who can phone out and discuss their case with their visitors !
    Perhaps the unfortunate woman sexually abused in care was one of those children and if so she should now be compensated.

    • Oh dear I don’t usually reply to comments like this but there isn’t much about it that is accurate. Of course children can put themselves at risk with phones & social networking but unless there is a specific risk, they are bought them. No idea why that boy couldn’t mention his jaw to his grandma but that doesn’t indicate cover up, some matters aren’t discussed during contact or by the contact supervisor, they might still be being investigated by the police for example. I don’t know that case. Foster carers are treated the same way as anyone else when children disclose, it is right that it is hard to discover abuse in that setting, just as it is at home. Once known about carers are suspended and deregistered if police information indicates allegations are substantiated, regardless of whether they prosecute, because the whole point is to keep children safe who weren’t safe at home. The reason for this child being in care are not mentioned because that is nothing to do with the case and is none of our business.

      • Sorry but the above is untrue untrue !Helen knows quite well that parents have to sign an agreement before contact is allowed forbiding them to mention their case,or the possibility of the child returning home or to criticise the Foster carer .I have seen a great many such agreements and even posted two on my site http://www.forced-adoption.com !Free speech forbidden! (but allowed to serial killers in prison) How disgraceful and how illegal is that???????
        Similarly phonesetc are confiscated in every case of the thousand I have come across and once taken into care (often by armed police at 7am!) children cannot then phone family or friends. Isolation occurs in EVERY case unlike serial killers who can phone out from prison to their families but children when taken into care cannot !How disgraceful and illegal is that???

      • I would like to reinforce the truth of what ‘Ashamed to be British’ says: ‘…’Children in care are muzzled and gagged and forbidden to tell their parents about the terrible abuse they sometimes suffer in fostercare otherwise contact is immediately stopped;If children go to the police to report abuse in care they are told to consult their social worker who will usually accuse them of exaggeration or lying as indeed to be fair some children do lie about abuse if they think it might help them to return home.’
        This is absolutely what I have seen in many cases, and I find it remarkably disingenuous of Helen sparkles who I presume is a social worker, to deny it. Statements like ‘Foster carers are treated the same way as anyone else when children disclose’ are far too general to be meaningful. It may be true in some instances, but there are plenty where it is not.

        If she wishes to have a meaningful conversation about this, she is welcome to contact me via suess.

      • As I say, I don’t often respond, but a phone removed from a child during a 7am raid means it presented a risk. Parents do not sign a contract prior to contact unless any issues present during contact, at those times a non legally binding agreement is reached, to protect the children. Criticism of foster carers is always looked into, it often doesn’t take much to ensure parents are happy with the care/carer, they may just not have realised something they were doing wasn’t what a parent would have wanted.

        Rehab home is always on the agenda until it can’t be and SW do tend to ask parents not to say things to children about them returning home until the case is concluded because this is confusing and distressing. It tends to prevent children getting on with their lives whilst the grown ups sort things out and it is easier for children if this is explained to them age appropriately. Surely most parents want to avoid their children being upset too?

        Rough Rabbit – there is nothing about your comment that is accurate. Obviously there will be some children who don’t disclose abuse and where it isn’t discovered, that is how abusers operate, but I have seen foster carers dealt with including imprisonment. it is an awful thing that some people enter into a position of trust whereby they can abuse that, it is treated seriously, and none of us what children re-traumatised. Nobody is silenced. This is not a communist state and you sound like a conspiracist. I am sorry your experiences have led you to think that way.

        Separately from both comments I would say that we need a serious debate about the way that non consensual adoption is used in the UK, but the barriers are obvious whilst you continue to paint a picture of social work which is so distorted.

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  3. By Christopher Booker

    7:00PM BST 01 Sep 2012

    A chilling recent episode exemplifies what, to an outsider, is yet another a shocking feature of our state “child protection” system. This is the ruthless way in which, when children are taken into care, social workers try to drive a wedge between their new charges and members of their families who have done them no harm and are closer to them than anyone else in the world.

    Last month, an 11-year-old boy was taken to the seaside by his foster carer. There he was attacked on the beach by a gang of teenagers who left him to be taken to hospital with a broken nose and jaw. No one was more concerned to hear about this than his grandmother, into whose care he and his 16-year-old sister had been given when they were removed from her former daughter-in-law and her new partner for abuse and neglect.

    When the girl ran away from home after a verbal tiff, she was taken into care. Shortly afterwards, a Romanian social worker arrived at the boy’s school to remove him as well. Terrified, he tried to escape by scaling a 12ft fence, crying, “I want my nan!” She had given him the only real sense of loving security in his life. From then on, the grandmother was only allowed to see the boy at occasional contact sessions, closely watched by a social worker in a council contact centre.

    As is not uncommon in such circumstances, they were both made to sign a long list of conditions on which continuing contact could be allowed. Expressions of affection must be limited to a “brief hug” at the beginning and end of each session, which had to be initiated by the boy. They were forbidden to make any reference to his “case” or why he was in care. There must be “no whispering”. No reference must be made to his foster home or social workers. The boy could not be shown photographs except by written permission obtained in advance. Any breach of these or some 15 other rules would end all contact. His grandmother was forbidden to have contact with him in any other way.

    When she heard two weeks ago that he had left hospital after the assault, she asked to be allowed to see him. She was told they would be allowed a brief “one-off contact”, but only on condition that no reference was made to his injuries or what happened on the beach. When the grandmother called the police to ask whether any charges were to be brought against the boys responsible for assaulting her grandson, she was told they were to take no further action, on the advice of the social workers who had “parental responsibility” for the boy.

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    Again and again, I have heard how social workers impose almost totalitarian control over how contact sessions are conducted. Frequently, children look terrified as they try to remember everything they have been told, by social workers or foster carers, that they must not talk about. When families are foreign, they are strictly forbidden to speak to each other in the language normally used at home.

    On one occasion, where a distressed 10-year-old girl told her parents that she had been sexually interfered with by a foster carer’s 19-year-old son, the contact was immediately terminated and the parents never saw her again. When this was reported to a judge, he waved it aside as of no concern.

    How many of our MPs (apart from John Hemming) have any idea that the state system routinely treats children in this inhuman way? Politicians gave social workers the opportunity to abuse their power like this, through the Children Act. It is only, alas, politicians who can end the appalling mess that they thus unwittingly called into being.

    • I am quite happy to say that I have Booker has proven himself inaccurate on many occasions and this is likely to be another. Contact sessions are often with families who present a risk to children and who can continue to during those sessions. Whilst wanting to treat everyone with respect and compassion, we can’t remove children from a situation we think is risky and then let it be duplicated? We also know that parents do say thing to children who would like go go home that make them think they can. This is damaging and painful for children. Who are you protecting, families or the children who have been harmed?

      • ashamedtobebritish

        Google Jonas Stadden – I happen to know the family, so nothing I say here is untrue.

        The parents BEGGED the FC to take him to hospital, he was really really unwell and the pictures show it. This took place in a contact centre.

        The FC refused, so the child died.

        The LA did not inform the parents for some considerable time, because they were too busy comforting the distraght FC.

        Sheer negligence on behalf of the FC, the LA and the contact supervisor, then the coroner, who refused to hold a full enquiry into the why’s and wherefores.

        I was in FC myself, one was lovely but the others! They were horrible, abusive and put me down constantly, they tried to mould me into what they saw their girls as being, we weren’t part of the family at all, we were treated totally different and their children could do no wrong, even when they were being nasty and spiteful to us.

        I have also had the displeasure of attending contact in a centre, not because I was any risk, or that there was any reason other than the SW did not like me (for challenging her big fat ego) and I can assure you, she sat and told me, no photos. no food, no presents … her older and more mature family man supervisor was then when I went in to sign, and he told her straight, that no restriction was necessary at all.

        So yes, there are restrictions for no obvious reason, apart from ‘it’s policy’ (no it’s not, it’s illegal) and yes, parents are told if they don’t sign, they don’t see their kids (also illegal)

      • See how they break the law by censoring what a mother can say to a 12 year old child! Most parents have to sign something similar or contact is stopped !
        Free speech is yet another human right bre

        [Suesspicious Minds Edit – Ian, please see the comment rules. unless the Court order you set out in huge detail here is actually part of a published judgment where those names are available to the public, you are breaking the law in publishing it, and inadvertently caused me to break the law until I saw the comment. Please don’t do that. You know better. ]

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  5. Very sad, though legally & policy wise I can understand it.
    CICA is neither use nor ornament to most victims now

  6. I did NOT set out any court order.I set out an agreement between parent and social services that had nothing to do with any court and was typical of the agreements parents are literally blackmailed into signing following some days after a care order had been made(and not part of it )on their children with the threat of stopping contact immediately if parents or children exercise their right to free speech and talk about abuse in care or the possibility of the child returning home etc etc

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