Lambert & Anor v Cardif County Council

A fostering agreement made under a comprehensive statutory scheme does not ordinarily create a private law contract between a local authority and foster carers. The relationship is regulated by the statutory scheme, even where the agreement uses contractual language.

An authority may owe foster carers a common law duty to pass on information which it has decided should be disclosed, but it does not owe a general duty to insure or indemnify them against all loss or injury. Decisions about controlling a child under a statutory scheme engage policy and operational judgments and must not conflict with the authority’s duties to the child. Liability also requires foreseeability, breach and causation.

The claimants were foster carers under the defendant authority’s Community Placement Scheme. After a teenage foster child left their placement, she made an unfounded allegation of sexual abuse against Mr Lambert and conducted a prolonged campaign of harassing telephone calls. The claimants alleged negligent misrepresentation, breach of contract and negligence.

The alleged duties included insuring or indemnifying them against injury, providing information about the child’s history, controlling the child, and advising and supporting them. The court determined whether the fostering agreements were enforceable private law contracts, how their insurance provisions should be construed, and whether any tortious duties had been breached or caused actionable loss.

1. Disposition. Judgment was entered for the defendant. The misrepresentation, contractual and tort claims failed.
2. Misrepresentation. The evidence did not establish the alleged representations that the claimants would be insured against all damage, including personal injury. The claimants’ asserted understanding developed after the events and was not induced by anything said by the authority’s officer. In any event, the alleged representation would not have induced them to enter the scheme.
3. Contract. Following W v Essex County Council [1999] Fam 90, the fostering agreements were part of the statutory scheme and were not private law contracts. That conclusion applied to both the 1991 and 1995 agreements. There could therefore be no collateral contract. Even if enforceable, the 1991 insurance clause covered liability to third parties and loss or damage caused by a child while placed with the carers. It did not cover personal injury to the carers and did not extend beyond the placement. The 1995 clause likewise could not apply after the placement had ended.
4. Information. The authority owed a duty, consistent with A v Essex County Council [2004] 1 WLR 1881, to pass on information which it had decided should be disclosed. Information about the child’s alleged sexual abuse and violence towards children ought to have been disclosed. The breach caused no loss because disclosure would not have changed the claimants’ decision to accept the placement or their conduct.
5. Control, support and causation. No general duty to control the child was established. Such a duty would conflict with the authority’s duties to the child and could not govern policy decisions. The authority’s non-interventionist approach was a reasonable professional judgment under Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The harassment and resulting injury were not reasonably foreseeable, no effective alternative step was identified, and the authority reasonably advised and supported the claimants.