NA-v-Nottinghamshire County Council [2014] EWHC 4005 (QB)


1. Since the Supreme Court held in Woodland-v-Essex CC [2013] UKSC 66 that a local authority may in some circumstances owe a child a non-delegable duty of care (so that the authority is liable even if the breach of duty is by a third party) there has been much debate about whether that principle would apply when a child in care is placed with foster carers.

2. On 2 December 2014 Males J handed down judgment in NA. He concluded that the Woodland principle did not apply to a foster placement. He also held that a local authority is not vicariously liable for foster carers, and he dismissed a claim that the authority, by its social workers, had negligently failed to remove NA from, and returned her to, the care of her mother.

3. In Woodland Lord Sumption had set out five criteria that must be met in order for a finding to be made that a local authority’s duty was non-delegable. He emphasised that this exception to the general rule (that a party can discharges its duty of care by entrusting performance to an apparently competent independent contractor) would only apply where these criteria were met, and where it was fair, just and reasonable to hold that the duty was non-delegable. Otherwise, as he put it, the exception would eat up the rule.

4. Males J found that the five criteria were met when a local authority places a child in care with foster carers, but he held that it was not fair, just and reasonable to impose a non-delegable duty. This was because

            (i) Imposing liability without fault would place an unreasonable financial burden on local authorities; it would result in scarce resources, intended to ensure that the current needs of vulnerable children were met, being diverted to compensate victims of past abuse; it would inevitable mean that the costs of training and monitoring foster carers would increase.

            (ii) The imposition of no-fault liability could operate to prejudice the interests of children in care; the local authority may be reluctant to place children with foster carers if, even though reasonable steps had been taken to ensure the carers were competent and careful, there would be liability for any harm caused.

            (iii) The fact that a child placed in a local authority children’s home would probably have a no-fault remedy for assault (i.e. because the authority would be vicariously liable for employees of the home) did not necessarily mean a foster child should be in the same position; there were fundamental differences between a foster placement and placement in residential care: it was necessary for the authority to relinquish significant control over the child to the foster carer in order to allow the child to experience family life, which was the principle purpose of fostering; although that relinquishing of control inevitably involved risks, it also had benefits that residential care could not provide; hence the public would not struggle to accept that different considerations should apply to the legal responsibility of local authorities in those different circumstances.

            (iv) Under the legislation in force at the time (and now) the authority had a discretion as to how to accommodate a child in care, which include placement back with parents; there was no principled distinction to be drawn between liability for abuse committed by foster carers and by parents, and it was not contended by the claimant that the authority should be liable without fault for abuse by parents; if the local authority were liable for such abuse it was less likely to place children with parents, potentially depriving them of the opportunity to form lasting family relationships.

            (v) Unlike the facts of Woodland, there was no question of those who could pay privately for the relevant services being at an advantage over those reliant on the state; nor could it be said that the local authority had once provided the relevant services prior to the advent of outsourcing, so that viewed in a longer historical perspective there was no significant extension of the local authority’s liability.

5. This decision provides some certainty for local authorities concerned about their liability for abuse occurring in foster homes. It remains necessary for a claimant claiming damages for such abuse to prove that the local authority was negligent in placing the child in, or failing to remove the child from, the placement. However, the certainly may be short lived as the Judge granted permission to the claimant to appeal.

Steven Ford QC and Adam Weitzman appeared for Nottinghamshire County Council, instructed by Ceri-Sian Williams of Browne Jacobson, Nottingham

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