Vicarious Liability of Foster Parents 12 Months On

There is a legal principle called "vicarious liability", which means that an employer is liable for what an employee does, even if that act, in some circumstances, amounts to a criminal act.

Until October 2017, in a strange twist of English law, Local Authorities were liable for the actions of employed care workers who abused children in their care, but not foster parents.

In a landmark decision, the law corrected the anomaly stating that even though there was no formal employment contract, the relationship had every hallmark of master and servant. Foster parents are vetted, inducted, trained, audited, and paid by the Local Authority, so why was this considered not to be employment?

The law derived from 1985 and a case called S v Walsall Borough Council, where the Local Authority was found not liable for a foster parent who negligently burned a child’s foot on a stove, when the law was very different.

The big difference of course is that most foster parents are on zero hours contract and are only paid when they have children. Nonetheless, most quasi employment relationships are now caught by vicarious liability, so foster care is yet another example.

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The Facts

Natasha Armes spent 11 years in foster care from the age of 7 to 18. From March 1985 to March 1986, she lived with Mr and Mrs A. She was physically abused by Mrs A during this time.

From October 1987 to February 1988, she lived with Mr and Mrs B. She was sexually abused by Mr B throughout her 5 months stay with them.

Armes took Nottinghamshire County Council through the High Court and Court of Appeal, alleging that they were liable for the abuse whilst under their care order.

Legal Argument

Ms Armes argued that the Local Authority was liable under a principle called the non-delegable duty of care, which means that the corporate parent is unable to delegate its responsibility to third parties because of its overarching professional responsibility, following another Supreme Court decision called Woodlands v Essex County Council.

This argument failed in the Supreme Court, who found that the analogy with natural parents, who would not be so held liable, was compelling.

Where are we 12 Months On?

On Appeal, the Local Authority used the floodgates argument to say that the law shouldn’t be changed to expose them to a huge increase in the costs of litigation, when suddenly hundreds of new Claimants would come along and strip local government of much-needed funds against a background of austerity.

Lord Reed’s answer to that one was, “It may be - although this again is empirically untested - that such exposure, and the risk of liability, might encourage more adequate vetting and supervision.”

In reality, the predicted effect has not arisen.

Whilst it has given much needed justice to some litigants who previously would’ve been deprived of their rights concerning abuse in childhood, the percentage of abuse cases where this applies is low.

Predictably, Local Authorities are arguing that some fostering relationships are not caught by Armes in view of comments made by Law Lords that an examination of the law at the time (Children and Young Persons Act 1969, the Child Care Act 1980, and the Boarding-Out of Children Regulations 1955) was necessary.

In one of the Abuse Claims that I’m dealing with at the moment, the case is governed by the Children’s Act 1948 where parents were asked to pay towards the cost of fostering their own children, it’s being argued that Armes does not apply.

Lawyers will try to distinguish precedent rulings if there is a chink left in the law. Such is the unfortunate and often psychologically damaging effect of adversarial litigation.

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