NA v Nottinghamshire County Council

A local authority is not vicariously liable for deliberate abuse by foster parents merely because it placed a child in their care. Foster care is intended to provide family life and necessarily gives foster parents substantial independence in day-to-day parenting.

A non-delegable duty requires the defining features identified in Woodland v Essex County Council [2013] UKSC 66, together with a conclusion that imposing liability is fair, just and reasonable. That conclusion was not justified in foster-care cases because of the burden on scarce public resources and the benefits of family-based care.

The claimant alleged negligent social work decisions concerning her childhood care, physical abuse by one foster carer, and sexual abuse by another. The foster-care claims were advanced on theories of vicarious liability and non-delegable duty, on the assumption that the authority had exercised reasonable care in selecting, supervising and monitoring the placements.

The claims were substantially out of time. The court had to decide whether section 33 of the Limitation Act 1980 should be applied, whether the social workers had been negligent, and whether the authority was legally responsible for abuse committed by foster parents.

1. The claimant established that a fair trial remained possible. The surviving records and evidence meant that the defendant’s prejudice was limited. The limitation period was disapplied under section 33 of the Limitation Act 1980. Psychological consequences of childhood abuse and associated drug use were relevant circumstances explaining delay.
2. The social workers’ conduct had to be assessed by the standard of a reasonably competent social worker in the particular role and circumstances, measured against professional standards at the time. The negligence allegations were unsupported by appropriate expert evidence and were not obvious cases. They failed.
3. Applying the factors identified by Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, foster parents were not sufficiently akin to employees. They provided family life in their own homes and retained independence in day-to-day care. The authority was not vicariously liable.
4. The authority owed a broad duty to care for and protect a child in its care. That function could be delegated to foster parents. The defining features in Woodland v Essex County Council [2013] UKSC 66 were present, but were necessary rather than sufficient. It was not fair, just and reasonable to impose an exceptional no-fault duty, having regard to financial burdens, the risk of risk-averse fostering, and the distinction between foster homes and residential homes.
5. Had a non-delegable duty existed, it would have extended to deliberate abuse because the duty to care included protection from harm however inflicted. That observation was unnecessary to the result.
6. There was judgment for the defendant. The anonymity order was continued under CPR 39.2(4).