Armes v Nottinghamshire County Council [2017] UKSC 60 (18 October 2017)

A child placed in foster care by a local authority was physically and sexually abused by two sets of foster parents. The claimant sued the local authority, which had not been negligent in selecting or supervising the foster parents. The Supreme Court held the local authority vicariously liable for the foster parents' torts, establishing that foster parents act as an integral part of the authority's child care services.

Facts

The claimant was taken into the care of Nottinghamshire County Council in 1985 when she was seven years old. She was placed with two sets of foster parents between 1985 and 1988. During these placements, she was physically and emotionally abused by Mrs Allison, and sexually abused by Mr Blakely. The abuse took place in the foster homes during day-to-day care. The local authority was not negligent in selecting or supervising the foster parents.

The Fostering Arrangements

Mr and Mrs Allison operated a family group foster home with nine or ten children at any time. Mr and Mrs Blakely fostered in a more conventional family setting with two foster children. Both sets of foster parents were recruited, trained, supervised and paid allowances by the local authority under the statutory framework of the Child Care Act 1980 and the Boarding-Out of Children Regulations 1955.

Issues

The central questions were: (1) whether the local authority owed a non-delegable duty of care to ensure the claimant’s safety while in foster care; and (2) whether the local authority was vicariously liable for the torts committed by the foster parents.

Judgment

Non-Delegable Duty

The Supreme Court unanimously held that the local authority did not owe a non-delegable duty of care. Lord Reed explained that under the statutory framework, the local authority’s duty was to arrange for and monitor the provision of daily care, not to perform that function itself. The statute provided that boarding out a child discharged rather than delegated the authority’s duty to provide accommodation and maintenance. Furthermore, imposing such a duty could conflict with the authority’s obligation to act in children’s best interests by placing them with family members.

Vicarious Liability

By a majority of 4-1 (Lord Hughes dissenting), the Court held the local authority vicariously liable for the foster parents’ torts. Lord Reed, applying the principles from Cox v Ministry of Justice, examined the five factors relevant to vicarious liability: (1) the defendant’s ability to compensate; (2) whether the tort was committed in activity on behalf of the defendant; (3) whether the activity was part of the defendant’s enterprise; (4) whether the defendant created the risk; and (5) the degree of control exercised.

Lord Reed concluded that foster parents provided care as an integral part of the local authority’s child care services. The authority recruited, selected, trained, supervised and paid the foster parents. While foster parents had day-to-day autonomy, the authority exercised significant control through approval, inspection, supervision and removal powers. The placement of children in foster care created a particular risk of abuse given the relationship of authority and trust in circumstances where close control could not be exercised.

Dissenting Judgment

Lord Hughes dissented on vicarious liability, reasoning that foster parents do not undertake care as part of the authority’s enterprise but provide something different – an upbringing as part of a family. He expressed concern that imposing vicarious liability would extend to connected persons (family and friends) who foster, potentially discouraging beneficial family placements and generating litigation over family activity.

Implications

This judgment significantly extends the scope of vicarious liability in child welfare cases. Local authorities will now be liable for torts committed by foster parents against children in their care, even where the authority has exercised all reasonable care in selection and supervision. The decision recognises that where public bodies place vulnerable children in situations that carry inherent risks of abuse, it is fair that they should compensate victims for whom those risks materialise.

The judgment distinguished foster care from placements with parents or family members, suggesting vicarious liability would not extend to those situations where the carers would not be acting as an integral part of the authority’s organisation. The decision applies the modern approach to vicarious liability developed in cases such as Christian Brothers and Cox v Ministry of Justice, focusing on whether the tortfeasor’s activities are carried on as an integral part of the defendant’s enterprise.

Verdict: Appeal allowed. The local authority is vicariously liable for the torts committed by the foster parents against the claimant.

Source: Armes v Nottinghamshire County Council [2017] UKSC 60 (18 October 2017)