Ceri Sian Williams 12 December 2017

Counting the cost of foster care abuse

Local authorities could be facing a significant increase in compensation claims for abuse in current and historical foster placements after a recent landmark Supreme Court ruling in which a local authority was held to be vicariously liable for abuse by foster carers.

Although the claimant proved abuse by her foster parents, her claim against the local authority failed because expert evidence confirmed that the abuse did not result from any negligence or want of care by the local authority. The Court of Appeal agreed with the trial judge that the local authority did not owe the claimant a non-delegable duty of care and that it should not be fixed with vicarious liability. The claimant appealed to the Supreme Court.

In its ruling the Supreme Court unanimously decided that a local authority does not owe a child in foster care a non-delegable duty of care. However, by a majority of four to one, the Supreme Court judges decided that the local authority was vicariously liable for the foster carers’ abuse.

Lord Reed identified five factors which led the Supreme Court to find that a foster care relationship was one to which the principle of vicarious liability should apply:

The abuse committed against the claimant was committed by the foster parents in the course of an activity carried on for the benefit of the local authority.

The placement of the child with the foster parents created a relationship of trust and authority between the child and the foster parents where day to day control could not be exercised by the local authority.

Since the local authority had created the risk of abuse it was reasonable that it should compensate a claimant who suffered abuse.

The local authority’s powers of “approval, inspection, supervision and removal’ provided it with sufficient control for it to be vicariously liable for the abuse.

Foster carers would rarely have the means to be able to meet an award of damages, or the benefit of insurance against claims, but in contrast local authorities have the means to pay claims and are often insured.

There is now the real prospect that local authorities will face a significant influx of claims by foster children for injury caused by foster parents. Foster parents often care for many children over several years and the repeated harmful conduct of one foster family could lead to numerous claims.

Against a backdrop of continuing austerity and budget constraints, this judgment requires local authorities to find resources to compensate a new tranche of Claimants, but the implications of this case may extend still further.

Additional strain will be placed on the public purse if this judgment encourages employment tribunals to find that foster parents are “workers” and so entitled to all the employment rights that accompany employed status. And busy local authority lawyers will have to find the time to review their contracts with Independent Fostering Agencies so that they understand the impact of this judgment on their contractual arrangements.

But it will take some time for the full ramifications of the judgment to become apparent, and the hope is that it does not cause local authorities to make placement decisions based on their financial best interests rather than the best interests of the children in their care.

Ceri Sian Williams is a solicitor at law firm Browne Jacobson, who acted for the local authority in the case

This feature first appeared in Local Government News magazine - click here to register for your own free copy.

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