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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> NA v Nottinghamshire County Council [2015] EWCA Civ 1139 (12 November 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/1139.html Cite as: [2016] 1 FCR 419, [2015] WLR(D) 457, [2016] PTSR 580, [2016] 2 FLR 1050, [2016] Fam Law 171, [2015] EWCA Civ 1139, [2016] 2 WLR 1455, [2016] QB 739 |
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ON APPEAL FROM NOTTINGHAM DISTRICT
REGISTRY
MR JUSTICE MALES
1NG90726
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TOMLINSON
and
LORD JUSTICE BURNETT
____________________
NA |
Appellant |
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- and - |
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Nottinghamshire County Council |
Respondent |
____________________
Steven Ford QC and Adam Weitzman (instructed by Browne Jacobson Solicitors) for the Respondent
Hearing date: 14 July 2015
____________________
Crown Copyright ©
Lord Justice Tomlinson:
"Fostering the legal framework
160. For both arguments, vicarious liability and non-delegable duty, the starting point is the status of foster parents. The relationship between a local authority and foster parents is defined by statute. The important statutes in this case are the Children and Young Person Act 1969 (CYPA 1969) and the Child Care Act 1980 (CCA 1980), which applied before the coming into force of the Children Act 1989 in October 1991 when the claimant was 14 years old. The claimant came into the care of the defendant local authority under section 1 of the CYPA 1969 which provided for the circumstances in which a care order could be made. These included the court being of the opinion that a child was being ill-treated.
161. Section 24 of the CYPA 1969 (and subsequently section 10 of the CCA 1980 which was in the same terms) set out the powers and duties of a local authority when a care order was made, which (in short) were "the same powers and duties with respect to a person in their care by virtue of a care order as a parent or guardian would have". From the date of the first interim care order, therefore, the defendant assumed parental responsibility for the claimant.
162. Part III of the CCA 1980 dealt with the treatment of children in the care of local authorities. The general duty to a child in care was identified in section 18(1) and was that "in reaching any decision as to a child in their care, a local authority shall give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood", giving "due consideration" to the child's own wishes, "having regard to his age and understanding".
163. Section 21 specified the various ways in which a local authority could discharge its "duty to provide accommodation and maintenance" for a child in care. It provided for a range of possibilities, including (a) fostering with approved foster parents (described in the section as "boarding out"), (b) a children's residential home, of which there were two kinds, community homes and voluntary homes, (c) living with a parent, and (d) living with a relative or friend:
"(1) A local authority shall discharge their duty to provide accommodation and maintenance for a child in their care in such one of the following ways as they think fit, namely, -
(a) by boarding him out on such terms as to payment by the authority and otherwise as the authority may, subject to the provisions of this Act and regulations thereunder, determine; or
(b) by maintaining him in a community home or in any such home as is referred to in section 80 of this Act; or
(c) by maintaining him in a voluntary home (other than a community home) the managers of which are willing to receive him;
or by making such other arrangements as seem appropriate to the local authority.
(2) Without prejudice to the generality of subsection (1) above, a local authority may allow a child in their care, either for a fixed period or until the local authority otherwise determine, to be under the charge and control of a parent, guardian, relative or friend.
(3) The terms, as to payment and other matters, on which a child may be accommodated and maintained in any such home as is referred to in section 80 of this Act shall be such as the Secretary of State may from time to time determine."
165. Section 22 provided for the Secretary of State to make regulations for the welfare of children who were boarded out. The relevant regulations were the Boarding-Out of Children Regulations 1955 (as later amended although the amendments are not material) which prescribed the circumstances in which children might be boarded out and the supervisory duties of the local authority. The fundamental purpose of boarding-out appears from regulation 1 and the undertaking which foster parents were required to give, set out in the Schedule to the regulations. This was that a child was placed with foster parents "to live in their dwelling as a member of their family". The undertaking was that "We/I having received CD into our/my home as a member of our/my family undertake that we/I will care for C.D. and bring him/her up as we/I would a child of our/my own". Thus the whole concept of fostering was to give a child something regarded by society as precious, namely the experience of family life.
166. The regulations required the local authority to visit the foster home and gave it the duty to remove a child if it appeared that boarding-out was no longer in the child's best interest, while a supervising visitor was empowered to remove a child immediately if he or she considered that conditions in the home endangered the child's health, safety or morals. However, the regulations did not give the local authority or its visiting social workers day-to-day control over the way in which the foster parents provided care for the child. That was a matter for the foster parents, consistently with the objective of giving the child a normal experience of family life."
It is relevant to note that whilst the foster parents are required to undertake to "look after his/her health and consult a doctor whenever he/she is ill and will allow him/her to be medically examined at such times and places as [the council] [the organisation] may require," nonetheless the Regulations at paragraph 8 impose upon the local authority the duty to make adequate arrangements for a child who is boarded out to receive medical and dental attention as required. It should also be remembered that it will be the local authority that decides on the level of contact with the birth family, whether or not the child can go on holiday, whether the child may have a passport, whether the child may go on school trips or make overnight stays with friends, as explained in unchallenged evidence given at trial.
Vicarious liability
"35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee's activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer."
"23. These factors suggest that the government is not vicariously liable for wrongs committed by foster parents against the children entrusted to them. Foster families serve a public goal the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society. However, they discharge this public goal in a highly independent manner, free from close government control. Foster parents provide care in their own homes. They use their own 'equipment', to use the language of Sagaz. While they do not necessarily 'hire' their own helpers, they are responsible for determining who will interact with the children and when. They gave complete control over the organization and management of their household; they alone are responsible for running their home. The government does not supervise or interfere, except to ensure that the child and the foster parents meet regularly with their social workers, and to remove the child if his or her needs are not met.
24. The independence of the foster family is essential to the government's goal of providing family care. If foster parents had to check with the state before making ordinary day-to-day decisions, they not only would be less effective as parents, but would be unable to deliver the spontaneous, loving responses and guidance that the children need. Foster families must be left to arrange their own family routine, in their own way. They must deal with day-to-day challenges and problems by working them out within the family, and by sharing responsibility for doing this, demonstrating to foster children that it is possible to resolve difficulties by working together. Moreover, foster children must know that their foster parents have this responsibility. Only in this way can foster children come to understand that authority figures can be loving and consistent and worthy of trust. Foster parents cannot function as loving and consistent authority figures unless they have some authority to exercise. Hence, while foster parents act in furtherance of a public purpose, they must operate independently of day-to-day state control if they are to meet the goals of foster care.
25. The fact that foster parents must operate so independently in managing the day-to-day affairs of foster children and in resolving the children's immediate problems, and the fact that they exercise full managerial responsibility over their own household are indications that, in their daily work, they are not acting on behalf of the government. It is also important to note, in this connection, that they do not hold themselves out as government agents in the community; nor are they perceived as such. Although foster parents are indeed acting in the service of a public goal, their actions are too far removed from the government for them to be reasonably perceived as acting 'on account of' the government in the sense necessary to justify vicarious liability.
26. This conclusion finds confirmation in the fact that imposing vicarious liability in the face of a relationship of such independence would be of little use. Given the independence of foster parents, government liability is unlikely to result in heightened deterrence. Exacting supervision cannot prevent abuse when the supervising social worker is absent, as must often be the case in a private family setting. Nor is stricter monitoring a real option. Governments can and do provide instruction and training to foster parents. They can and do put in place periodic monitoring. They can and do encourage social workers to develop communication between social workers and foster children. These are now standard practice and are encouraged by direct liability. But given the nature of foster care, governments cannot regulate foster homes on a day-to-day basis. Imposition of vicarious liability can do little to deter what direct liability does not already deter. Not only would imposing vicarious liability do little good; it could do harm. It might deter governments from placing children in foster homes in favour of less efficacious institutional settings. And it would raise the question of why the government should not be vicariously liable for other torts by foster parents such as negligent driving causing injury to a foster child. While these concerns might not be insurmountable, they tend to confirm the conclusion that the relationship between foster parents and the government is not close enough to support a finding that the government is vicariously liable."
"176. I respectfully agree with this reasoning which although stated by reference to Canadian law and practice applies with equal force to the statutory and regulatory regime applicable in this country at the relevant time. In short, applying the tests referred to in the Various Claimants case, the decisive point is that the defendant local authority not only does not have control over the foster parents, whether to direct what they do or how they do it, but that it is essential to the whole concept of foster parenting that the local authority should not have that control. The foster parents' role is to provide family life, bringing up the child as a member of their own family. That is only possible if a foster parent enjoys independence from direction by the local authority and autonomy to determine how the child should be parented.
177. Although the first and fourth features identified by Lord Phillips are present (the local authority is more likely to have the means to compensate a claimant and will have insurance, and by placing the child with the foster parents the local authority will have created the risk of abuse being committed by the foster parents), the remaining features are not. The foster parent does not provide family life on behalf of the local authority; rather the local authority promotes the welfare of the child by placing it in a home where it can be expected to benefit from family life. The provision of and participation in family life is not part of the activity of the local authority. The foster parents are not to any material degree under the control of the local authority."
Non-delegable duty
"(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.
(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.
(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him."
"25. The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so. But I do not accept that any unreasonable burden would be cast on them by recognising the existence of a non-delegable duty on the criteria which I have summarised above."
1. An abused child does have a remedy in law against an abusive foster parent and some foster parents will have the means to satisfy a judgment against them. Children abused by foster parents are thus no worse off than those abused by anybody else, including natural parents, for whom there is no question of vicarious responsibility;
2. Imposition of a non-delegable duty would impose an unreasonable financial burden on local authorities providing a critical public service. The provision of compensation for historic cases would impact upon the ability of the authority to maintain its provision of foster care resources;
3. Imposition of a non-delegable duty would, consciously or sub-consciously, promote "risk averse foster parenting";
4. There is a fundamental distinction between placement with foster parents and placement in a children's home. The former provides the experience of family life which is the cultural norm in our society. The latter does not. It is inherent in foster care placements that the local authority does not have the same control over the day to day lives of children in foster care that it has over children in residential homes. That is a benefit to the children in foster care and is necessary in order to give them the experience of family life which is the purpose of fostering. As fostering necessarily involves a release of the control which the local authority has over a child, it may in a sense be regarded as inherently risky. But with the risks come the benefits which life in a children's home cannot provide. Provided that all necessary reasonable care has been taken to ensure that the foster parents and the placement are suitable, those are risks which will generally be worth running in order to obtain for a child the benefits of family life. Members of the public would not struggle to understand that different considerations apply to the legal responsibilities of local authorities in the two situations, and would not regard it is unacceptable for liability to exist in one case and not in the other. It does not therefore follow that a child placed with foster parents ought as a matter of policy to have the same no-fault remedy against a local authority as a child placed in a residential home who is abused by local authority employees;
5. It would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including its own parents. The Appellant accepted that it would not be right to make the local authority liable for breach of a non-delegable duty in the case of ill-treatment by natural parents with whom the child in care is allowed to live, it being very common for a child in local authority care and for whom the local authority therefore has parental responsibility to be allowed to live with its natural parents either full time or for part of the time, as had in fact happened to the Appellant at another period with which we are not now concerned. Once it is recognised that the local authority's liability on the basis of a no-fault non-delegable duty should not extend to all cases where in the exercise of its parental responsibility it places a child with a family, the better view is that there should not be a non-delegable duty in such cases at all and that the ordinary principles of tort law (including the principle of vicarious liability) should govern the local authority's liability;
6. There are not here present two factors which weighed with the Supreme Court in Woodland (i) a potential unfair distinction between those who can pay the fees for private education and thereby obtain the benefit of a contractual non-delegable duty of care and those who cannot pay and (ii) a local authority once having provided a service itself but subsequently deciding to outsource provision of the relevant service;
7. The majority in the KLB case had concluded that the applicable Canadian legislation provided no basis for imposing a non-delegable duty to ensure that no harm to children in care comes through the abuse or negligence of foster parents.
Lord Justice Burnett:
Lady Justice Black:
Vicarious liability
Non-delegable duty
"A local authority shall, subject to the following provisions of this section, have the same powers and duties with respect to a person in their care by virtue of a care order . as his parent or guardian would have apart from the order ."
This function of the local authority was "additional to the functions which are conferred on the authority in respect of a child" by Part II of the Children Act 1948/Part III of the Child Care Act 1980 (see section 24(7) of the Children and Young Persons Act 1969 and section 12(2) of the Child Care Act1980). Part II of the 1948 Act included, at section 12, the general duty of the local authority to exercise their powers so as to further the child's best interests. Part III of the 1980 Act included section 18 which imposed a general duty on the local authority, in reaching any decision as to a child in their care, to give first consideration to the need to safeguard and promote his welfare throughout his childhood.
"4. The issue on this appeal is, however, nothing to do with vicarious liability, except in the sense that it only arises because there is none. On the footing that the local authority was not vicariously liable for the negligence of Mrs Stopford, Ms Burlinson or Ms Maxwell, the question is what was the scope of the authority's duty to pupils in its care. Was it a duty to take reasonable care in the performance of the functions entrusted to it, so far as it performed those functions itself, through its own employees? Or was it a duty to procure that reasonable care was taken in their performance by whomever it might get to perform them? On either view, any liability of the education authority for breach of it is personal, not vicarious."
and continuing , in the following paragraph:
"The expression "non-delegable duty" has become the conventional way of describing those cases in which the ordinary principle [that the law does not in the ordinary course impose personal, as opposed to vicarious, liability for what others do or fail to do] is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others."
"The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so."
Lord Sumption explained why he considered that no unreasonable burden would be imposed in that case. In this case, however, I am of the view that to impose a non-delegable duty on a local authority would be unreasonably burdensome and, in fact, contrary to the interests of the many children for whom they have to care.