NA v Nottinghamshire County Council

A local authority is not vicariously liable for abuse by foster carers merely because it placed a child with them or retained statutory supervisory powers. Foster care is intended to provide family life in the carers’ home, so the carers’ day-to-day independence means that their relationship with the authority is not sufficiently akin to employment.

A non-delegable duty requires an assumed function to have been delegated, and the recognised indicia must be applied contextually. Even where those indicia are arguable, imposing no-fault liability for historic abuse must be fair, just and reasonable. The statutory alternatives of foster, family and other placements, together with the risk of defensive institutional care, may make such liability unjustified.

The appellant was in the care of the respondent local authority from the age of seven. She was placed with foster carers between 1985 and 1986 and again between 1987 and 1988. She alleged physical abuse by one foster carer and sexual abuse by another.

Allegations concerning negligent selection and supervision had been summarily dismissed and were not under appeal. The High Court, in a judgment by Males J reported at [2014] EWHC 4005 (QB), rejected claims based on vicarious liability and non-delegable duty. The appeal concerned whether the authority was liable despite the absence of negligence in selecting or supervising the placements.

1. Disposition. The appeal was dismissed unanimously. The local authority was not liable for the foster carers’ assaults either vicariously or by breach of a non-delegable duty.
2. Vicarious liability. Applying the principles in Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1, the necessary relationship had to be sufficiently akin to employment and sufficiently connected with the tort. Foster carers were expected to provide family life in their own homes. Their day-to-day independence was essential to that function. The authority retained supervisory and macro-level statutory powers, but not the micro-level control relevant to the risk of abuse. The relationship was therefore not of the required nature.
3. Non-delegable duty. The court had first to identify the precise duty and function said to have been delegated. Tomlinson LJ held that the duty under section 21 of the Child Care Act 1980 to provide accommodation and maintenance was discharged, rather than delegated, when foster care was arranged. Fostering necessarily had to be entrusted to others. Black LJ adopted a wider analysis of the local authority’s statutory duty and considered that several of the Woodland indicia were present. Burnett LJ focused on the deliberate nature of the assaults and considered that the doctrine should not be extended to create strict liability for assault.
4. Fairness and statutory context. The majority considered that, even if the relevant indicia were present, imposing no-fault liability would not be fair, just and reasonable. It would impose an unreasonable burden on local authorities, encourage defensive foster-care practice and risk diverting children from family placements into residential care. The statutory power to place children with parents, relatives or other carers also made it unprincipled to impose liability for foster carers’ abuse while excluding comparable abuse by other carers.
5. Tomlinson LJ observed obiter that insurance should not be assumed without evidence, particularly for historic periods. He expressed no view on the separate argument concerning deliberate rather than careless conduct.

• Court of Appeal (Civil Division): dismissed the appeal on both vicarious-liability and non-delegable-duty grounds.
• High Court, Nottingham District Registry: Males J rejected both causes of action in the judgment reported at [2014] EWHC 4005 (QB).