DJ v Barnsley Metropolitan Borough Council & Anor

A local authority may be vicariously liable for torts committed by a relative who is an approved foster carer, but liability is fact-sensitive. The question is whether the relationship with the authority is employment or akin to employment. Once a child is received into the authority’s care and relatives are assessed and approved as foster carers to discharge the authority’s statutory duty, their care may be integral to the authority’s child-care activity. Lack of specific training is not decisive where assessment, approval, supervision and review are present. The carer’s family relationship with the child, or personal motive for accepting the placement, does not determine the relationship with the authority. An initial informal family placement before the child enters care may be different. The decision establishes no general rule for related foster carers or the current statutory regime.

DJ alleged that he had been sexually abused by his maternal uncle while living with his uncle and aunt. The local authority had initially facilitated the family placement in 1980, later assessed and approved the couple as foster carers, received DJ into care, and subsequently assumed parental rights.

DJ brought a claim alleging vicarious liability. The Recorder decided the preliminary issue in favour of the local authority and the claim was dismissed. Lambert J dismissed DJ’s appeal on 8 July 2023. The central issue on this second appeal was whether the relationship between the local authority and the uncle was capable of giving rise to vicarious liability.

1. Disposition. The appeal was allowed and the order dismissing the claim was set aside.
2. Applicable test. Vicarious liability involves two stages. Stage 1 concerns whether the relationship between the defendant and tortfeasor was one of employment or akin to employment. Stage 2 concerns the connection between the wrongful conduct and the authorised activities. This appeal concerned stage 1: [2023] UKSC 15.
3. Three phases. The initial placement in January 1980 was an informal family arrangement approved and facilitated under section 1 of the Children and Young Persons Act 1963. DJ was not then in the local authority’s care, and the Gs were not acting as foster carers. Their care was therefore not integral to the authority’s business and the relationship was not akin to employment.
4. From 1 August 1980, DJ was received into care under section 1 of the Children Act 1948 and boarded out with the Gs. They had applied to become foster carers, undergone a full assessment and been approved. They were recruited and selected as DJ’s foster carers so that the authority could discharge its statutory duty. Their care was monitored and supervised, with regular reviews and directions about family contact. The relationship was therefore akin to employment from that date, continuing through the period after parental rights were assumed under section 3 of the Child Care Act 1980.
5. The absence of specific training carried no material weight. The authority had assessed the Gs and concluded that additional training was unnecessary. The fact that DJ was their nephew, and their reasons for caring for him, did not make their activity distinct from the authority’s statutory child-care activity. Motive was irrelevant to the relationship with the authority. The relevant relationships were those between the authority and DJ, and between the authority and the Gs. The risk assessment concerning the uncle’s previous convictions did not alter that conclusion after approval and reception into care.
6. It was unnecessary to use the policy factors identified in [2012] UKSC 56 as a decisive test, but the alternative policy check was satisfied. The judgment was confined to the facts of this case. It laid down no general rule that liability always arises for related foster carers and expressed no view on the present statutory regime.

• Court of Appeal (Civil Division): allowed the appeal and set aside the order dismissing the claim.
• High Court of Justice, King’s Bench Division: Lambert J dismissed DJ’s appeal on 8 July 2023.
• Sheffield County Court: the Recorder determined the preliminary issue in favour of the local authority on 27 July 2021; the claim was dismissed by order dated 13 August 2021.