DJ v Barnsley Metropolitan Borough Council

Whether a local authority is vicariously liable for torts committed by foster carers cannot be resolved solely by asking whether the carers are relatives. The court must examine the relationship and decide whether it is akin to employment, and whether the carers’ activity is sufficiently distinct from the authority’s statutory child-care activity. Recruitment, selection, training, supervision, control, integration, benefit and the circumstances in which responsibility was assumed may be relevant. The carers’ reasons for undertaking the role may also help characterise the activity. A family placement may therefore fall outside vicarious liability despite statutory supervision and financial involvement.

The claimant appealed against dismissal of his claim for damages arising from alleged sexual abuse by his maternal uncle, Mr G. The claimant had been placed with Mr and Mrs G by the defendant local authority in 1980. They later became his foster parents.

The Recorder held that the relationship was not akin to employment and struck out the claim. The appeal concerned the application of Armes v Nottingham County Council to a relative foster placement and the proper approach to stage one of vicarious liability.

1. Appeal dismissed. The local authority was not vicariously liable for the alleged abuse.
2. Stage one asks whether the relationship between defendant and tortfeasor was one of employment or akin to employment. Relevant matters include payment, integration, control, benefit, appointment and termination, and hierarchy. The policy rationale may provide a useful check in difficult cases but does not replace the modern test.
3. Armes did not establish automatic categories of liability or immunity for parents, relatives or other connected persons. The court must examine the relationship’s details and ask whether there is a sufficiently sharp line between the carers’ activity and the authority’s activity.
4. Although statutory duties, assessment, monitoring, supervision and financial involvement pointed towards an employment-like relationship, the Gs came forward as relatives, were not recruited or selected as ordinary foster carers, and were not trained for that role. They took the claimant into their family because he was their nephew.
5. The reasons for undertaking the role could properly be considered because they helped characterise the activity. The Gs were raising their nephew as part of the family, in an activity sufficiently distinct from the authority’s statutory child-care enterprise.
6. The Recorder’s conclusion was upheld, although the appellate judge’s reasoning differed in some respects.

• High Court (King’s Bench Division): Mrs Justice Lambert DBE dismissed the appeal against the order of Mr Recorder Myerson KC, which had dismissed and struck out the claim on the preliminary issue of vicarious liability.