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Have you suffered abuse at the hands of a foster carer?

Released On 18th Oct 2017

Can I claim compensation from Local Authority if my Foster Carers abused me?

“Yes” is the short answer.

The Supreme Court (the highest Court in the land) recently heard a case about a woman who was abused as a young child.  She had been taken into the care of Nottingham County Council in February 1985, when she was aged seven.  Between March 1985 and March 1986 she was fostered by a Mr and Mrs Allison.  During that period, she was physically and emotionally abused by Mrs Allison as she would use grossly excessive violence to discipline her.  Between October 1987 and February 1988 she was fostered by the Blakely’s. During that period, she was sexually abused by Mr Blakely as he would molest her when bathing her and when she was alone in her bedroom.  In each case, the abuse took place in the foster home.

The question the Court had to decide was whether the local authority should compensate the Claimant for the abuse which she suffered, even though the local authority had not of itself caused any harm to the Claimant. 

The Claimant argued the local authority should compensate her for two legal reasons:-

1.  It remained responsible for her care even though it had found foster carers to look after the Claimant on a day to day basis (“the non-delegable duty of care principle”), or

2.  For reasons of public policy, namely that local authorities are insured and able to afford compensation payments, it should be held responsible (“the vicarious liability principle”). 

The Court held the local authority did not owe a non-delegable duty of care but were vicariously liable.

In relation to a non-delegable duty the critical question the Court asked was whether the provision of day-to-day foster care was undertaken by the local authority itself or was a function which the local authority was merely arranging, and which was ultimately undertaken by the foster carers themselves.  The Court decided that although the local authority was responsible for making and supervising foster care arrangements it outsourced the day to day care to the foster carers.  Hence in relation to the Claimant’s day to day care the local authority did not owe her a duty of care.

The Court held the local authority was vicariously liable for the abuse caused by the foster carers.

The general principles governing the imposition of vicarious liability were recently set out in Cox v Ministry of Justice. Vicarious liability depends upon it being fair, just and reasonable to impose vicarious liability and depends upon the answers to two questions.

1.  What sort of relationship must exist between a foster carer and a local authority before the local authority can be made vicariously liable for the conduct of the foster carer.  This is known as the relationship test. 

2.  What sort of misconduct does the foster carer have to engage in for vicarious liability to be imposed on the local authority.  This is known as the misconduct test.

The Court looked at the relationship between the foster carer and the local authority and found that:-

(i) the local authority was more likely to have the means to compensate the claimant than the foster carer and would be insured

(ii) the abuse was committed as a result of foster caring undertaken by the foster carer on behalf of the local authority

(iii) foster caring was a part of the business activity of local authority

(iv) the local authority, by employing the foster carers to carry out foster caring will have created the risk of the abuse committed by the foster carer; and

(v) the foster carer will, to a greater or lesser degree, have been under the control of the local authority.

The local authority argued that it could not be liable for the abuse of the claimant by the foster carers.  It said that the provision of family life for the claimant by the foster carers by definition could not be an activity of a local authority since the local authority had no control over day to day routine. The local authority’s control was at the “higher or management level and that was not enough to detect or stop the abuse

However, and crucially the Court found that the local authority :-

1.  Were legally responsible for the provision of accommodation, maintenance and daily care of the Claimant

2.  Recruited, selected and trained persons who were willing to accommodate, maintain and look after the children in their homes as foster parents, and

3.  Inspected their homes before any placement was made

4.  Paid allowances to the foster parents, and provided the foster parents with any specialist equipment

5.  Provided in-service training

6.  Expected the foster parents to carry out their fostering in cooperation with local authority social workers, with whom they had at least monthly meetings

7.  Involved the foster parents in their decision-making concerning the children, and required them to co-operate with arrangements for contact with the children’s families.

In the light of these circumstances, the foster parents were not regarded as carrying on an independent business of their own and that foster parents provided care to the Claimant as an integral part of the local authority’s organisation of its child care services.

If you have suffered abuse by foster carers whilst in a local authority placement then please contact us at enquiries@robsonshaw.uk and one of our specialist solicitors with speak with you, on a free, confidential, no obligation basis.  Or call us direct on 01392 345333.

Tags: Child abuse, sexual abuse, Vicarious Liability