Last October, the U.K.’s top judicial body, the Supreme Court, held a local authority vicariously liable for the abuse suffered by a foster child.
Nottinghamshire County Council was responsible for organising the fostering of a child between the ages of seven and 18 in the 1980’s. During her placement in two different foster homes, the child suffered physical, emotional and sexual abuse by her foster parents.
After a lengthy legal battle, the Supreme Court has found a local authority vicariously liable for the abuse.
Now an adult, the victim took her case to the British Courts arguing that, although it wasn’t the council who abused her or were negligent in the selection and supervision of her foster parents, the council was still responsible because they had a “non-delegable” duty to keep her safe, or that they were “vicariously liable for the wrongdoing of the foster parents.”
Both the High Court and the Court of Appeal dismissed her claim.
Unwilling to give up, the appellant took her case to the final court of appeal in the U.K.; the Supreme Court. By a majority of 4:1, the Supreme Court agreed with the appellant on her second argument: Nottinghamshire local authority was “vicariously liable for the abuse committed by the foster parents.”
The presiding Lords and Lady agreed to dismiss the appellant’s first argument that the county council had a non-delegable duty to ensure the safety of children whilst under the care of their foster parents, as this was thought to have been too broad and could create an unmanageable degree of responsibility on the council. Practically speaking, it was deemed as an unreasonable duty that could be too demanding. However, the judges did find that the county council was vicarious liable for her foster parent’s actions, as per the principles in Cox v Ministry of Justice [2016] UKSC 10.
The majority of the judges based their decision on what kind of relationship the local council has with the foster parent they entrust children to. As the council carries out the recruitment, selection and training of the foster parents, pay for their expenses and continually supervise the fostering, the foster parents were deemed to have been acting as an extension of the council, rather than independently. Through these measures, the council holds a strong level of control over the foster parents, and the judges recognised that the council created the risk by entrusting the vulnerable children to the care of the foster parents.
The Supreme Court’s decision is an important one as it means claimants may now be able to make claims against local authorities in situations like this, rather than the individual “wrongdoer”. The Court identified the benefit of claiming against a local authority as they are much more likely to be able to afford the payment of financial compensation claimed.
