A child in council care suffered abuse in two foster homes. Her claim raised two separate questions. Had the council itself undertaken to ensure that reasonable care was taken in the homes? Could it instead be liable for the foster carers’ wrongdoing because of the relationship between the carers and the council?
The placements
Ms Armes entered care as a child in 1985. At trial the judge found that one foster carer had physically and emotionally abused her and another had sexually abused her. Both placements had been arranged by the council.
Under the legislation then in force, the council provided accommodation and maintenance and could place children with approved foster carers. It recruited and trained the carers, paid allowances, visited the homes and could end placements. The foster carers organised everyday life in their households.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
How the claim reached the Supreme Court
There was no case that the council had failed to take reasonable care in choosing the foster parents or in supervising the placements. The claimant said the council was still responsible for their torts, either because it owed a non-delegable duty of care or because it was vicariously liable. Males J rejected both arguments. He disapplied the limitation period under section 33 of the Limitation Act 1980, but left causation and the amount of any damages to be decided later if liability was established. The Court of Appeal dismissed the appeal. On vicarious liability, Tomlinson, Black and Burnett LJJ considered that the council did not have enough control, and that providing family life could not be part of its activity. They also rejected a non-delegable duty, although their reasons differed.
Why there was no non-delegable duty
An ordinary duty of care requires a person to take reasonable care. A non-delegable duty is stricter: it is a duty to ensure that care is taken, and it is not discharged merely by carefully choosing someone else to do the work. Lord Reed, with whom Lady Hale, Lord Kerr and Lord Clarke agreed, asked whether day-to-day care was a function the council itself had to perform with care for the child’s safety, or only a function it had to arrange and then monitor.
A council might also arrange for a child to stay with family or friends. A parent who asks someone else to care for a child does not ordinarily guarantee the conduct of that person. Treating the council as guaranteeing every such carer could set its financial interests against its duty to put the child’s welfare first.
Section 21 also required the council to discharge its duty to provide accommodation and maintenance by boarding a child out or by making other appropriate arrangements. Lord Reed read discharge as meaning that the placement performed that duty, rather than delegating a function which remained the council’s to carry out. The continuing responsibility under section 10 was met, so far as boarding-out was concerned, by approval, inspection, supervision and removal under section 22 and the Regulations. The statute imposed no further responsibility for day-to-day care, or for ensuring that no harm came to the child during it. A duty to ensure that reasonable care was taken while children were in foster parents’ care and control was too broad and too demanding.
Why the council was vicariously liable
Vicarious liability makes a defendant liable for another person’s tort, without personal fault, where the relationship justifies it. It was conceded that if the relationship between the council and the foster parents could give rise to vicarious liability, the abuse was a tort for which that liability arose. The dispute was only about the relationship.
Lord Reed applied Cox v Ministry of Justice and Various Claimants v Catholic Child Welfare Society. A relationship other than employment can suffice where someone carries on activities as an integral part of the defendant’s activities and for its benefit, and the defendant creates the risk by assigning those activities to that person. The five incidents identified by Lord Phillips in the Christian Brothers case are relevant, but their weight depends on the context. Control no longer means a right to direct every detail of how the work is done.
The council’s activity was the care of children committed to it. To provide accommodation, maintenance and daily care, it recruited, selected and trained foster parents, inspected their homes, paid allowances, provided equipment and training, and expected cooperation with social workers. These foster parents were not carrying on an independent business. Lord Reed could not draw a sharp line between the council’s responsibility for the child’s care and welfare and the care given by the foster parents it had recruited and trained. The torts were committed in the course of an activity carried on for the council’s benefit.
The placement also created authority and trust in circumstances where the council could not exercise close control, so the children were particularly vulnerable. Foster care was generally considered to be in children’s best interests, but a risk of abuse was inherent in that choice. Lord Reed thought it fair that the public body which accepted that risk in the general interest should share the cost when it materialised, rather than leave it entirely on children who could not control the placement.
The council did not have to direct every domestic routine. Its continuing powers of approval, supervision and removal still gave it significant control over the fostering arrangement.
Lord Reed saw no evidential basis for the suggestion that recognising liability would drive councils to use residential homes. They could already be liable for abuse by their own residential staff.
The decision rested on the legislation and practice then in force. Lord Reed said vicarious liability would not have arisen had the abuser been the child’s own parent after a placement with that parent. Such parents would not have been recruited, selected and trained so that the council could perform its functions, and raising their own child would have been much more clearly independent of the council’s services. He did not decide the position under present-day law, but said the Court would not readily be persuaded to impose vicarious liability for torts by parents, or perhaps other family members.
Lord Hughes’s dissent
Lord Hughes would have dismissed the appeal. He accepted that vicarious liability can arise outside employment, and that foster parents act within a council scheme under careful authorisation and monitoring. On a closer look, however, he thought they resembled carefully selected independent contractors. The council decides where a child should live and monitors the placement so that it can end it. It does not bring the child up as it does in one of its own children’s homes. Daily life is committed to the carers.
Lord Hughes was concerned that extending liability to foster care would make it difficult to distinguish placements with relatives or friends and could encourage unduly cautious placement decisions. He would have dismissed the appeal.
Verdict: The Court allowed Ms Armes’s appeal by four votes to one. The council was vicariously liable for the foster carers’ abuse. All five justices rejected the proposed non-delegable duty. Causation and the amount of damages remained for later determination.
Source: Armes v Nottinghamshire County Council [2017] UKSC 60
