Jordans success in significant foster care abuse appeal

The Court of Appeal found that local authorities can be liable for abuse in family foster placements.

DJ -v- Barnsley Metropolitan Borough Council

Court of Appeal rule in favour of the Claimant and Order that the relationship between the Local Authority and the maternal Uncle and Foster Carer gave rise to Vicarious Liability.

This Appeal, heard on the 19th June 2024 at the Court of Appeal, before The Lady Justice Carr of Walton- on-the-Hill, The Lady Chief Justice, Lord Justice Bean and Lord Justice Baker was to determine whether a local authority can be vicariously liable for torts committed against a child by a foster carer who is also a relative of the child.

Our client DJ, who was 10 years old was abandoned by his parents and the Defendant local authority arranged for him to live with his maternal aunt and uncle, whom he had not previously met.

Over the Christmas period DJ was introduced to his aunt and uncle, Mr and Mrs G and on the 4th January 1980 he moved to live with them. His mother was living in Scotland and the whereabouts of his father was unknown. By April 1980 it became clear that DJ would not be joining his mother in Scotland and a fostering placement with Mr and Mrs G started to be considered.

Mr and Mrs G applied to become DJ’s foster carers and a fostering assessment was carried out. Mr and Mrs G were approved as foster carers and DJ was received into the care of the local authority under section1 of the Children’s Act 1948 on the 1st August 1980. On the 22nd November 1983 the local authority passed the assumption of parental rights resolution to assume parental rights in respect of DJ. This is thought to have taken place due to unexpected contact by DJ’s mother. DJ lived with Mr and Mrs G until 1991.

It is DJ’s claim that he was sexually abused by Mr G during the period of 1980 to approximately 1986 and the Defendant is vicariously liable for the sexual abuse and assaults, and for the injury and damage which the Claimant suffered as a result of Mr G’s deliberate act.

The Defendant denied the allegations, raised a liability defence and brought a Part 20 claim against Mr G seeking an indemnity or contribution. Mr G denied the allegations of sexual abuse.

A preliminary hearing on the issue of vicarious liability was ordered.  The Defendant argued, relying on the authority of  Armes -v- Nottinghamshire CC, that  due to the fact that the G’s were maternal relatives of  DJ the relationship between the G’s and the local authority was analogous to that of parents and the G’s were carrying out an activity which was distinguishable from and independent of the  child care services carried on by the local authority in relation to the care of unrelated children by foster parents recruited for that purpose.

It was the view of the Claimant that there was no material difference in this case to that of Armes. The appointment, termination and the local authority’s control over the G’s work and the work of the G’s was integral to the organisation in the same way as in Armes. Unlike the actions of parents caring for their own child, the G’s activity in caring for DJ was neither distinguishable from nor independent of the child care services carried on by the local authority.

On the 27th July 2021 Mr Recorder Myerson QC found in favour of the Defendant and the Claimant’s claim was dismissed. In July 2023 our appeal was unsuccessful, Lambert J endorsed the decision of the recorder that the G’s were engaged in an activity which aligned to that of parents raising their own child and that duty was sufficiently distinct from the exercise of statutory duties by the local authority. Permission to appeal was granted in November 2023.

The single ground for appealing the decision  at the hearing in June 2024 was that the recorder and judge were wrong to conclude that the relationship between the local authority and Mr G was not one capable of giving rise to vicarious liability.

It was held that DJ’s residence with the G’s should fall into three phases. During the first phase from the 4th January 1980 to the 1st August 1980 the Claimant was placed with the G’s on a temporary informal family placement initially suggested by other family members but not approved and facilitated by the local authority. DJ was not “in care” and the local authority has no statutory responsibility for him or rights in respect of him.

During the first phase the G’s care for DJ was not integral to the local authority business and the relationship between the local authority and the G’s was not akin to employment.

The start of the second phase was the 1st August 1980 when a care order under section 1 of the Children’s Act 1948 was put in place and Mr and Mrs G were approved as foster carers. Parental rights remained with DJ’s parents.

This was the situation until the 22nd November 1983 when the local authority assumed parental rights. This marked the start of the third phase of DJ’s residence which continued until he attained his majority.

In the second and third phases DJ was in the care of the local authority, and they were under a duty to care for DJ. The G’s were looking after DJ as foster carers. Receiving children into care was the local authority’s “relevant activity”. It was held that from 1st  August 1980, the relationship between the G’s and the local authority was akin to employment.

It was held that the G’s had been recruited and selected to be foster carers for DJ as evidenced by the assessment process. The Local Authority, at this stage had the option not to approve the G’s as foster carers.

Mr and Mrs G’s motive for caring for their nephew DJ or the fact that they may not have considered fostering had DJ not been their nephew was held to be irrelevant when determining whether the relationship between the local authority and a foster carer is akin to employment.

The relationships which should be considered “when determining whether there was vicarious liability in this case were the two other relationships between the local authority and DJ and between the local authority and the G’s,” not the relationship between DJ and the G’s, i.e. the child and the foster parents. “Once the local authority had taken DJ into their care, their relationship with him was one in which they were under statutory duties including the statutory duty to provide accommodation. They discharged that duty through their relationship with the G’s who they approved as foster carers and with whom the claimant was then boarded out.”

Our appeal was upheld, and it was concluded that at all material times after the 1st August 1980, the relationship between the local authority and Mr and Mrs G was akin to employment.

This issue of the motive of Mr and Mrs G, which was central to the earlier judgments has been addressed:

“We therefore disagree with the judge that the circumstances in which the G’s came to be involved with DJ was indicative that they were carrying on their own activity distinct from the statutory obligations of the local authority. We also disagree with the judge’s view that the social worker’s assessment of risk arising out of Mr G’s previous convictions for sexual offences was further evidence which pointed away from a finding of a relationship giving rise to various liability. The social worker seems to have assumed that Mr G posed less risk to his wife’s nephew than to another child and that he could be approved as a foster carer for DJ although not for any other child. This assessment of risk is based on the relationship between the G’s and DJ made in the course of the fostering assessment prior to the approval of G as foster carers has no bearing on the relationship between the G’s and the local authority after they had been approved as foster carer and DJ had been received into care.”

This judgment clearly states that the circumstances or reasons as to why the G’s became family foster carers are not relevant issues when determining whether the relationship is akin to employment and confirms that the central relationships to be considered in this case are the relationships between the local authority and DJ and the local authority and the G’s .

Whilst the judgment is clear that this decision has been reached on the specific facts of this case and it not a general rule that a local authority will always be held vicariously liable for torts committed by foster carers who are related to the child, it is an important and significant judgment in this area.

We are very pleased that this judgment has been made in this case, our client DJ has fought this issue in the courts since 2021. We are now able to move forward with the case and hopefully obtain justice and compensation for our client.