Lasting liability

A 40 year old woman, who was placed in care by Nottinghamshire County Council when she was seven, has won a landmark legal case against the council when four supreme court judges ruled the local authority was “vicariously liable” for  the abuse that she suffered in two different foster placements. The ruling has a number of significant implications, and like many other recent fostering stories has been covered widely in the press (there is also a press release available).

The case was brought by Natasha Armes, who waived her right to anonymity and was named in the Supreme Court judgement. Ms Armes was placed firstly in a “group foster home” where the female foster carer physically and emotionally abused her, and then in a more traditional family setting foster home where she was sexually abused by the male foster carer. She took her case for damages against the placing local authority, Nottinghamshire County Council to the High Court and then the Court of Appeal, which both rejected her claim. It was only when the case reached the Supreme Court – the final step in the legal process – that four of the five judges presiding over the case agreed that the local authority was vicariously liable for the abuse that she suffered. The BBC reported that Ms Armes was “shocked” and “surprised” that the judgement was made in her favour after pursuing her case in the courts for eight years. The ruling ends a significant discrepancy in that local authorities were hitherto vicariously liable for abuse inflicted by staff on a child living in a residential children’s home, but not if they were in foster care.

The online local authority reporting site LocalGov looks at the implications and quotes a number of sources that suggest that local authorities “will have to impose tighter controls on their fostering arrangements”. But it also reminds us of the real issue – that a child was abused when they were supposed to be being safely cared for by the local authority. It quotes the President of the Association of Child Abuse Lawyers, Peter Garsden, as saying, “For 15 years we have been turning away cases from people who have been abused in foster care and the local authorities have continued to escape responsibility….Justice is long overdue for those who suffered the most horrendous and crippling abuse as children, under the watch of local authorities.” The Telegraph similarly reports Kim Harrison, a lawyer from Slater and Gordon as saying: “This judgement has finally put right a terrible injustice which has denied so many victims a legal redress that is widely available to other survivors of abuse.”

Community Care has provided an all-round report into a number of the points of law and is worth a read to understand the fundamentals in the case. The journal had also reported on Ms Armes’ case previously when it was rejected by the Court of Appeal. Among them are the concern raised by the one dissenting judge that the ruling suggests that local authorities could also be liable for abuse committed by “friends and family” or “connected persons” foster carers – a concern that was acknowledged but rejected by the lead judge. Responses to the article included queries over whether vicarious liability could extend to private fostering agencies. The judgement does not address that specifically. However in its discussion about whether application of vicarious liability could open the floodgates for children to be placed into residential children’s care  – including private residential care – rather than foster care, it suggests the following: “Not only is private residential care more expensive than foster care, but the operators of residential care homes might be expected to pass on to the local authorities the costs arising from their own vicarious liability.” The answer being, perhaps yes private fostering agencies could be held “vicariously liable”, but this could result in higher fees being set by fostering agencies as they pass on the anticipated costs of court cases. Interestingly the court assumed that foster carers would not have the financial means to pay damages themselves – which is one of five factors considered in the applicability of vicarious liability in this case.

A first glance suggests that the ruling could also have implications in the current debate around the employment relationship between foster carers and local authorities. The judgement notes that, “The local authority involved the foster parents in their decision-making concerning the children, and required them to co-operate with arrangements for contact with the children’s families. In the light of these circumstances, the foster parents with which the present case is concerned cannot be regarded as carrying on an independent business of their own: such a characterisation would fail to reflect many important aspects of the arrangements.”

And indeed, Hampshire County Council referred to the case brought by Armes as being evidence that the relationship between local authorities and foster carers was not one of employment when foster carer Sarah Anderson launched a legal case to be classed as a worker (TWiF 12 October). However the council was referring to the Court of Appeal ruling which rejected Ms Armes’ argument that the local authority was vicariously liable – before this ruling was overturned by the Supreme Court just a few days ago. Why did Hampshire quote this case? Human rights blogger Lucy Eastwood explains. “Historically the relationship giving rise to vicarious liability has been one of employer and employee under a contract of employment.” This suggests that Hampshire’s argument is that absence of vicarious liability equals absence of employment relationship. So does it make the reverse true – i.e. evidence of vicarious liability indicating the relationship between foster carer and local authority is one of employment? Eastwood thinks not. “The developing case law such as Christian Brothers and Cox [referred to in the Supreme Court judgement] had marked the expansion of the scope of relationships giving rise to vicarious liability outside relationships of employment,” she says. “However the decision in Armes has extended the concept further to a relationship [between foster carer and local authority] in which vicarious liability had been excluded hitherto.” Her view is supported by Craig Connal QC of Pinsent Masons in “In recent times, extension has been the name of the game,” he said. “Extension of liability to local authorities in respect of acts of foster carers continues that trend and will raise the spectre of more to come, in public law and elsewhere.”

4 thoughts on “Lasting liability

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