Armes v Nottinghamshire County Council

A local authority may be vicariously liable for abuse committed by foster parents where their care is an integral part of the authority’s child-care services, is undertaken for its benefit, and creates an inherent risk of abuse. Close day-to-day control is unnecessary.

The historical statutory scheme required the authority to arrange and monitor foster care, but did not require it to perform the daily care itself. It therefore imposed no non-delegable duty to ensure that foster parents took reasonable care. The result depends on the applicable legislation and practice. It does not determine liability under present-day arrangements or for children placed with their own parents.

The claimant was physically and sexually abused by foster parents while subject to care orders and placed in foster care by Nottinghamshire County Council. The authority had not been negligent in selecting or supervising the foster parents. She alleged that it was nevertheless liable through a non-delegable duty of care or vicariously for the foster parents’ torts.

Males J rejected both bases of liability in [2014] EWHC 4005 (QB); [2015] PTSR 653, although he disapplied the limitation period. The Court of Appeal dismissed her appeal in [2015] EWCA Civ 1139; [2016] QB 739.

The Supreme Court had to decide whether the historical statutory and practical relationship made the authority directly liable under a non-delegable duty or vicariously liable for abuse committed during foster care.

1. Disposition. The appeal was allowed by a majority of four to one. Lord Reed, with whom Lady Hale, Lord Kerr and Lord Clarke agreed, held that the local authority was vicariously liable for the foster parents’ torts. Lord Hughes dissented on that issue.

2. Non-delegable duty. A non-delegable duty requires a defendant to ensure that reasonable care is taken, rather than merely to exercise reasonable care personally. The critical inquiry was whether the authority had itself undertaken the function of providing daily care, or was required only to arrange and supervise its performance. The criteria in Woodland v Essex County Council [2013] UKSC 66 identify circumstances in which such a duty is fair, just and reasonable. They do not ordinarily require a separate, duplicative policy inquiry.

   Sections 10, 18, 21 and 22 of the Child Care Act 1980, together with the Boarding-Out of Children Regulations 1955, required the authority to retain parental powers, safeguard welfare, approve placements, inspect and supervise foster homes, and remove children where appropriate. Section 21 nevertheless treated placement as the discharge of the duty to provide accommodation and maintenance. The authority arranged and monitored daily care; it was not itself obliged to perform that function. It therefore owed no non-delegable duty to ensure that foster parents took reasonable care.

3. A non-delegable duty, where one exists, can be breached by deliberate wrongdoing as well as negligence. The contrary distinction would irrationally impose liability where carelessness facilitated abuse but exclude liability where the person entrusted with the duty committed the abuse personally.

4. Vicarious liability. Applying Cox v Ministry of Justice [2016] UKSC 10, the relevant considerations supported liability. The authority recruited, selected, trained, paid, equipped and supervised the foster parents. Their care formed an integral part of its child-care services and was undertaken for its benefit, rather than as an independent business. Placement created a relationship of authority and trust and an inherent risk of abuse. The authority also retained significant powers of approval, inspection, supervision and removal. Vicarious liability did not require micro-management of daily family life.

   The authority could more readily compensate victims than individual foster parents. Policy objections based on resources or the possible displacement of foster care by residential care were unsupported and did not outweigh the factors favouring liability.

5. The decision rested on the legislation and practice applicable to the particular placements. It did not determine present-day fostering law. Placement with a child’s own parents would materially differ because the parents would not ordinarily have been recruited, selected or trained to perform the authority’s child-care functions.

   Lord Hughes agreed that no non-delegable duty arose. He would have dismissed the appeal because foster parents provided independent family upbringing rather than acting as an integral part of the authority’s enterprise, and because extending strict liability could discourage beneficial family placements.

1. United Kingdom Supreme Court: In Armes v Nottinghamshire County Council [2017] UKSC 60, the court allowed the appeal by a majority and held the local authority vicariously liable.
2. Court of Appeal: In [2015] EWCA Civ 1139; [2016] QB 739, the court dismissed the claimant’s appeal and rejected both vicarious liability and a non-delegable duty.
3. High Court: In [2014] EWHC 4005 (QB); [2015] PTSR 653, Males J rejected both bases of liability but disapplied the limitation period. Causation and quantum were left for later determination if necessary.