Local authority responsibility for abuse by foster carers – The next step in vicarious liability?
An article by Malcolm Johnson of Malcolm Johnson & Co. Published in the Solicitors Journal on the 21st July 2009
The constant flow of child abuse cases, reported in the family and criminal courts, together with recent high profile cases from the civil courts is an unfortunate illustration of the resilience of this problem.
The majority of child abuse compensation claims are brought either by children abused in care homes or in schools. The other emerging category is “failure to take into care” cases where the child has been abused within the family setting, but the local authority has not acted to protect that child. However claims involving foster parents are less common.
It is to be hoped that the increasing use of foster care by local authorities has reduced the risk of child abuse occurring in care. Perhaps the historic nature of child abuse means that it is too early to tell, but foster care is now the main means by which children are looked after by the state. Department of Health figures in 1999 showed that 66% of looked after children were living with foster carers, whereas a much smaller group (12%) lived in residential accommodation. More recently, figures published by the Department for Education and Skills showed that the largest category of placements for children (70%) was foster care, and that this had increased 7% since 2002.
This then raises the issue of how a child abused by foster parents, brings a civil claim many years after the event. At present, children abused in a children’s home by a care worker have a distinct advantage. The conviction of their abuser combined with the possible application of vicarious liability may well overcome the issues of proving negligence and overcoming limitation as against that abuser’s employer.
The idea that an employee acting in the course of his employment may by his deliberate and illegal act make his employer liable, has been with us for some considerable time.[1] Initially the Court of Appeal showed some resistance to the concept of an employer becoming vicariously liable for the acts of an abusive care worker. In Trotman v. North Yorkshire County Council[2] the Claimant alleged sexual assault by the deputy headmaster of a special school. He sued the local authority alleging vicarious liability. The Court of Appeal held that such assaults were outside the scope of the assailant’s employment. However Trotman was overruled by the House of Lords in Lister v Hesley Hall Limited[3] The Claimants were pupils at a privately owned residential school, who alleged sexual abuse by the warden. The House of Lords found that the Defendant was vicariously liable for the warden’s acts of abuse. The warden had such close contact with his pupils that there was sufficient connection between the work he was employed to do and the acts of abuse he had committed for those acts to be committed within the scope of his employment.
In coming to its decision the House was impressed by two ground breaking Canadian decisions on vicarious liability. They were Bazley v Curry and Jacobi v Griffiths[4] two decisions of the Canadian Supreme Court. In Bazley the court decided that a non profit organisation was vicariously liable for abuse carried out by its employees in two children’s homes, which it owned. By contrast in Jacobi, the court decided that a “Boys and Girls Club” was not vicariously liable for abuse carried out by an employee of the club. The distinction appeared to turn on the fact that in Jacobi the Club’s “enterprise” offered group recreational activities to be enjoyed in the presence of volunteers and other members.
Lister was a favourable decision for victims of child abuse, but at that time, a claim based on intentional assault was restricted by the non extendable six year time limit.[5] This has now been swept away by the judgment in A v Hoare[6] where the House of Lords said that the issues of vicarious liability were very much narrower than those arising on negligence, and that in turn meant that an application under Section 33 of the Limitation Act 1980 stood more chance of success. In essence, if it were clear that the abuser was an employee, and the only issue (his guilt) had already been decided by a criminal court, then it might be difficult to see what prejudice would accrue to him or his employee by the passage of time.
Therefore it might be argued that if a local authority can be fixed with vicarious liability for the abuse of a child by a care worker in a children’s home, there should be no difference between that situation, and the abuse of a child by foster carers in a foster home. There appears to be the same close connection between what the foster parent is retained to do, and any abuse that is perpetrated upon the child. The difficulty arises in the actual status of foster carers and whilst the courts have been willing to find vicarious liability in residential care homes and schools, the position is quite different in relation to foster care.
In the case of Sargent v Walsall Metropolitan Borough Council and others[7] the Claimant was a foster child who suffered severe burns to the soles of her feet, for reasons that were unknown. The foster parents were acquitted of any wrong-doing. She brought a claim against her foster parents and the local authority that retained them. There was no allegation that the council had been negligent in selecting the foster parents or supervising them. The Claimant’s counsel submitted that there was a relationship of principal and agent or of a sufficient proximity to make the local authority liable for the acts of the foster parents. The matter came before the Court of Appeal.
At that time, the Court of Appeal said that there was no authority either way on this issue but they described counsel’s submission as “a startling one”. They considered the relevant statutory provisions of the Children Act 1948. Section 13 was the important section for present purposes because it was from that section that there was derived the power to board out with foster parents. Lord Justice Oliver said that the statute and the regulations showed that this was a statutory scheme and that the relationship between the child and the local authority, and between the child and the foster parents was one which was regulated simply and solely by the provisions of the statutory scheme. Foster parents were simply the means by which the local authority carried out its own duty, and they would not be vicariously liable for the acts or omissions of foster parents.
In H v Norfolk[8] the Claimant alleged physical and sexual abuse against his foster father. He claimed against the local authority insofar as it had been negligent in failing to supervise his placement. The claim was struck out on the basis of the judgment in X (Minors) V Bedfordshire County Council.[9] The Court of Appeal drew a distinction between a claim based on the actions of school employees and this type of claim. Lord Justice Simon-Brown said at page 391:-
“The school analogy is unhelpful, because the liability there will generally be based on vicarious liability for the actions of the school’s employee. Furthermore the degree of control exercisable over the actions taking place within the confines of a school is likely to be substantially greater than that which can practicably be exercised by a local authority over foster parents.”[10]
Other jurisdictions have dealt with this issue. An early case from the Supreme Court of British Columbia in Canada, Brooks v Regina[11], stated that the State was vicariously liable for the damage caused by the wrongful behaviour of foster parents towards children in their care. However more recently the Canadian Supreme Court has turned against the notion of vicarious liability in foster care in MB v British Columbia and KLB v British Columbia.[12] In the case of KLB, Chief Justice McLachlin said that foster parents were essentially independent and that they were intended to give the child a proper family life. They did not have to check with the state before making day to day decisions. If it were otherwise, they would not have the authority that children came to expect from parents. That was part of the rationale for refusing to impose vicarious liability on the government.
In New Zealand, the Court of Appeal has been more favourable to the concept as seen in S v Attorney General.[13] In that case the court agreed with the findings of Roland J in the High Court, who said that that not recognising vicarious liability where the State had only formally taken responsibility for the children would result in the very regime designed to protect children, being undermined. That case was distinguished in A v Roman Catholic Archdiocese of Wellington & Ors.[14] The Claimant was a child in care, who was placed with caregivers in the school holidays where she was sexually abused. The Court of Appeal held there was no principled basis to impose vicarious liability upon the primary care providers for the sexual abuse of A during holiday placements. In Australia, the High Court in Australia has expressed difficulty with the concept of vicarious liability in abuse cases.[15]
Therefore at present English law is likely to be resistant to the imposition of vicarious liability on local authorities or fostering agencies in relation to abuse perpetrated by foster carers.
There are still a number of counter arguments. The Sargent, X v Bedfordshire and H v Norfolk cases pre-date the case of Lister, as well as cases such as D v East Berkshire Community Health NHS Trust.[16] In addition it is submitted that the reality of modern foster care is more complex than simply providing a child with a family life. Moreover the “family life” was precisely the kind of aspiration that was found in care homes run by organisations such as Barnardos, which were split up into family groups with housefathers and housemothers. In the United Kingdom, there are a number of different types of foster placements, for instance emergency, respite, remand, short and long term placements. Some placements simply involve support and guidance being given to natural parents, in order to help them look after their children better.[17] Certainly it is true that the majority of foster carers are not treated as employees of the care authority. They are entitled to allowances to cover the cost of caring for children in their home plus extra allowances for certain items based on the needs of the child.[18] They also receive an income tax exemption. However, as one might expect, they are very heavily regulated. The two main statutes are the Children Act 1989 and the Care Standards Act 2000, from which come the Fostering Services Regulations 2002.[19] These regulations govern the control and direction of foster parents and they are extremely detailed, more so it might be said that the majority of standard employment contracts. It might also be said that the degree of control exercised by the care authority is in fact akin to that of an employment contract.
It is also submitted that there are a number of vicarious liability cases where the relationship between master and servant is unconventional. In the case of Hawley v Luminar Leisure Ltd & Others[20] the Court of Appeal held (on the facts) that such a relationship could exist between the owner of a night club and a doorman employed by a security company, even though the owner and the security company were two separate bodies.[21]
At present the writer is not aware of any cases coming before the courts on this issue. A case brought for abuse by a foster carer might well succeed on negligence in any event. The case of Sargent was interesting insofar as it involved an injury where there was no explanation for the injuries sustained by the child whilst in foster care. Consequently vicarious liability was the only route to compensation. We can only wait to see what a future court makes of the same argument.
[1] Dyer v Munday [1895] 1 QBD 742, Lloyd v Grace Smith & Co [1912] AC 716, Mattis v Pollock [2003] EWCA Civ 887
[2] [1999] IRLR 98
[3] [2001] 2 WLR 1311 HL.
[4] (1999) 174 DLR (4th) 45 and (1999) 174 DLR (4th) 71
[5] Stubbings v Webb [1993] AC 498
[6] [2008] UKHL 6
[7] (Unreported) Court of Appeal 27th June 1985
[8] [ 1997] 1 FLR
[9] [1995] 3 All ER 353.
[10] See also Surtees v Kingston upon Thames Borough Council [1997] 1 FLR 559 where the Court of Appeal ruled in that a court should be wary to hold parents in breach of a duty of care owed to their children.
[11] 2000 BCSC 735 (Canlii)
[12] [2003] 2 SCR 477 and [2003] 2 SCR 403
[13] [2003] 3 NZLR 450
[14] [2008] NZCA 49
[15] New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4
[16] [2003] EWCA Civ 1151 [2004] 2 WLR 58
[17] The British Association for Adoption and Fostering provides information about foster carers on www.baaf.org.uk
[18] The Fostering Network publishes recommended minimum allowances www.fostering.net for the UK.
[19] SI 2002/57 revoking the Foster Placement (Children) Regulations 1991 (SI 1991/910)
[20] [2006] QBD 307
[21] [2006] QBD 307. See also authorities where the issue was whether a person was an independent contractor or an employee – Lane v Shire Roofing [1995] PIQR 417, Viasystems (Tyneside) Ltd v Thermal Transfers (Northern) Ltd [2005] EWCA Civ 1151, Jennings v Forestry Commission [2008] EWCA Civ 581
