VN & Anor v London Borough of Brent & Ors

A claimant need not establish every allegation in order to succeed, but the court must assess the reliability of the evidence as a whole where substantial parts of the case are rejected. Claims against foster carers and a local authority require proof of the alleged abuse, breach of duty and causation on the balance of probabilities. Positive school, medical and social-care evidence may be inconsistent with allegations of prolonged abuse and neglect. Difficulties concerning therapy, contact, savings, training, transport or household arrangements do not necessarily justify removing children from a placement that otherwise provides good care. A fostering allowance does not ordinarily create a constructive trust or impose a statutory obligation to make savings. The court also indicated obiter that NA v Nottinghamshire County Council [2015] EWCA Civ 1139 would preclude vicarious liability and a non-delegable duty in these circumstances.

Two sisters claimed damages for alleged physical and emotional abuse, neglect and exploitation during approximately nine years in foster care. They sued their foster carers in trespass, negligence, breach of constructive trust and under the Harassment Act 1997. They sued the local authority for negligent approval, placement and supervision, and also alleged vicarious liability and a non-delegable duty.

The defendants denied the allegations. The central issues were whether the alleged mistreatment occurred, whether the foster carers misused the fostering allowance or failed to support therapy and contact, and whether the local authority had breached any duty by approving or continuing the placement.

1. Claims dismissed. The claimants failed to establish physical abuse, general neglect, exploitation, emotional abuse, misuse of the fostering allowance or negligence by the local authority. The claims against all defendants were dismissed.
2. The court was entitled to reject the alleged prolonged pattern of abuse while recognising that a claimant need not prove every allegation to succeed. The evidence had to be assessed carefully, including the reliability of the claimants’ accounts after substantial adverse findings. The contemporaneous school, medical, social-work and photographic evidence showed healthy, successful and well-integrated children and was inconsistent with the alleged regular abuse, starvation, isolation and domestic servitude.
3. The court found that the foster carers had not vilified the claimants’ mother, deliberately sabotaged therapy or exposed the claimants to domestic violence. The difficulties surrounding therapy and contact did not amount to negligence or justify removal from an otherwise good placement.
4. The fostering allowance had been spent for the claimants’ benefit. There was no statutory obligation on the foster carers to make savings, and the allowance did not include an element for savings. No constructive trust arose.
5. The local authority’s approval process was adequate. Although some checks or arrangements could have been improved, they would not have affected approval or caused the claimants’ removal. The issues concerning transport, training, pocket money, savings, safety, therapy and contact did not, individually or cumulatively, justify removal while the placement remained good.
6. The court accepted that the Children Act 1989 schedule 7 requirements had been considered and that a retrospective exemption from the Rule of Three had been obtained for the additional children.
7. Obiter, had liability against the foster carers been established, the court would have followed NA v Nottinghamshire County Council [2015] EWCA Civ 1139 and rejected claims based on vicarious liability or a non-delegable duty.