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    Vicarious liability and abuse: local authority liable for family foster placement

    24/07/2024

    In DJ v Barnsley Metropolitan Borough Council [2024] EWCA Civ 841 the Court of Appeal has allowed an appeal to find a local authority vicariously liable for assaults committed by a foster parent who was also the claimant’s uncle.

    Background

    Keoghs have previously commented on the decisions in this case throughout the judicial process. However, for clarity in January 1980 following the breakdown of the claimant’s parents’ marriage, the claimant was placed by Barnsley MBC in the voluntary care of a Mr and Mrs G, who were the claimant’s maternal aunt and uncle. Mr and Mrs G then became the claimant’s foster parents and the claimant remained with the family for many years. Prior to Christmas 1979, the claimant had never met Mr and Mrs G, and did not know of their existence. During the placement, the claimant alleged that he was sexually abused by his uncle.

    In August 2021 there was a trial of the preliminary issue of whether the local authority could be vicariously liable for the abuse carried out by Mr G. The claimant’s claim was initially struck out on the basis that the relationship between the defendant and Mr G was not akin to employment and, therefore, vicarious liability could not apply.

    The claimant appealed to the High Court and in July 2023 it dismissed the claimant’s appeal for reasons which included the following:

    • While some features of the relationship suggested it was “akin to employment” (e.g. they were both interviewed for the role; were monitored and supervised; and there were regular reviews of the claimant’s welfare, health, conduct, appearance and progress), other features pointed in the opposite direction, such as the fact that they were “not recruited for the role… or selected by the local authority” and that they were not “trained for the role”.
    • There was a sufficiently sharp line between what the foster parents were doing and the activity and business of the defendant.
    • The foster parents took the claimant in because other family members were unable or unwilling to do so and there was a clear inference that they would not have done so “had he not been their nephew”.
    • The foster parents were engaged in an activity which was more aligned to that of parents raising their own child and that the activity was sufficiently distinct from that of the local authority exercising its statutory duty.

    The claimant then appealed to the Court of Appeal

    Court of Appeal

    The Court of Appeal allowed the appeal to render the local authority vicariously liable for the assaults by Mr G.

    In assessing whether the local authority's relationship with Mr and Mrs G was akin to employment, the Court of Appeal concluded that the claimant’s residence with Mr and Mrs G fell into “three phases”:

    Phase 1:   January 1980 to July 1980: the claimant was not "in care" and the local authority had no statutory responsibility for him or rights in respect of him.

    Phase 2:   1 August 1980 to 21 November 1983: the claimant was formally received into care under section 1 of the Children Act 1948. From this point he was "in care" and "boarded out" with Mr and Mrs G and the local authority paid boarding out allowances under the power provided by s.13(1) of the 1948 Act. However, although the claimant was in care, parental responsibility remained with his parents.

    Phase 3:   22 November 1983 to 1988: the local authority then assumed parental rights in respect of any child in their care, thus parental responsibility was no longer with the claimant’s parents. This period of residence with Mr and Mrs G continued until his 18th birthday.

    In the first phase, the Court of Appeal found that the claimant was not in the care of the local authority and vicarious liability could not apply. Consequently, on balance Mr and Mrs G’s care for the claimant was “not integral to the local authority's business and the relationship between the local authority and the Gs was not akin to employment.”

    However, in respect of the second and third phases, vicarious liability could apply for the following reasons:

    • The claimant was in the care of the local authority who were under a statutory duty to care for the claimant – the care of children who had been received into its care was the local authority's "relevant activity".
    • Mr and Mrs G were only recruited and selected to be foster carers for the claimant and not any child placed with them. However, they were “recruited and selected” as the claimant’s foster carers to enable the local authority to discharge its statutory duty towards a child received into its care.
    • The local authority had the ability to conclude that Mr and Mrs G were not suitable to be foster carers. This was an exercise undertaken by the local authority of assessment and selection, rather than a ratification of the pre-existing arrangement.
    • The fact that Mr and Mrs G did not receive any specific training to become foster parents carried no material weight. The Court of Appeal pointed to the fact the claimant was visited regularly by his social worker and Mr and Mrs G’s care of him was monitored and supervised by them. There were also regular reviews of his health, welfare and progress. The local authority also gave directions about his contact with his parents and other members of his family.

    As a result, the Court found that after August 1980 the relationship between the local authority and Mr and Mrs G was akin to employment to render the local authority vicariously liable for any assaults committed by Mr G upon the claimant.

    Lord Phillips’ five incidents

    The Court of Appeal did not consider it necessary to consider the five "incidents" identified by Lord Phillips in the Christian Brothers case. However, they still stated that all five incidents were satisfied, including the second incident that both the first instance and High Court had considered were not satisfied (whether the tort was committed as a result of activity being taken by the employee on behalf of the employer). In essence, once the claimant was received into care and Mr and Mrs G had been approved as his foster carers, their care of the claimant “was integral to the local authority's business of discharging its statutory duties towards him.”

    Motive

    The Court of Appeal also commented that Mr and Mrs G’s motive in caring for the claimant as their nephew was irrelevant for the purposes of assessing vicarious liability. The motive or objectives of a defendant and the individual who committed the acts are rarely aligned and there may be a number of reasons why an individual will choose to take on a role, such as a foster parent. However, whatever motive there was, this does not determine the nature of the relationship between the defendant and an alleged tortfeasor.

    Focus of relationship

    The Court of Appeal also commented that the first instance and High Court judge focused too heavily on the nature of the relationship between the claimant and Mr and Mrs G. The key assessments were the other two relationships:

    1. Between the local authority and the claimant; and
    2. Between the local authority and Mr and Mrs G.

    On this basis the local authority had taken the claimant into care and had statutory duties towards him; this was discharged through their relationship with Mr and Mrs G who had been approved as his foster carers.

    Comment

    Over the past few years Courts have considered whether local authorities are vicariously liable for the acts of foster carers. Case law indicated that where a child is fostered by a member of the family this would not satisfy stage one of the test and the expansion of vicarious liability would be limited.

    With the recommendations of an expansion of kinship carers and placements with family carers being encouraged, particularly following the “Stable Homes, Built on Love” Report, such placements are likely to increase. While acknowledging that vicarious liability has been on the move, the Court of Appeal in DJ v Barnsley MBC made it explicit that this was a decision reached on the specific facts of this case and that the decision does not represent “a general rule that a local authority will always be vicariously liable for torts committed by foster carers who are related to the child”.

    However, given the approach and analysis taken to vicarious liability in the context of this case, and even the fact that parental responsibility remained with the parents for over 3 years during the relevant period, it is difficult to envisage a set of circumstances in which a local authority would not be vicariously liable for the acts of a family foster parent. Irrespective of any familial relationship, once a child has been taken into care and foster parents have been selected and approved, a local authority will be deemed to be in a relationship akin to employment to render them vicariously liable for their acts or omissions.

     

    For further information please contact:

     

    Ian Carroll - Head of Abuse

    Email: icarroll@keoghs.co.uk

     

    Sarah Swan - Partner

    Email: sswan@keoghs.co.uk

     

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