Historic Abuse: Who Is Liable For Abusive Foster Parents?

Should a local authority be held liable for the abuse suffered by a child it placed into foster care? In NA v Nottinghamshire County Council [2015] EWCA Civ 1139 the Court of Appeal held that it should not. While the local authority exercised control over the appointment of the foster parents, this control was at a macro level. The day to day management of family life of foster children was outside their control.

NA had led a particularly tragic life. She was placed in care by Nottinghamshire from the ages of seven to 16. Lord Justice Tomlinson described the treatment she received at the hands of two sets of foster parents as cruel and despicable. She suffered both physical and sexual abuse. The appeal addressed whether Nottinghamshire was liable for that abuse.

NA put forward two arguments. First, she argued that the local authority was vicariously liable for the torts of the foster carers. The alternative argument was that they owed her a non-delegable duty of care. At first instance the judge rejected both arguments.

Key to that decision was that it is a crucial feature of foster care that the local authority has no control over the way foster parents provide family life on a day to day basis. That feature was inimical to the imposition of vicarious liability. Further, it would not be fair, just and reasonable to impose a non-delegable duty of care.

The Court of Appeal unanimously dismissed the appeal on both grounds.

The relationship between Nottinghamshire and the foster parents was not sufficiently akin to employment. NA's day to day life was in the charge of the foster parents. The degree of independence this gave the foster parents was not indicative of a relationship giving rise to vicarious liability.

All three judges agreed that there was also no non-delegable...