Vicarious liability for foster carers: a case review

In Brief: Can a foster care agency or local authority be found vicariously liable for tortious acts of a foster carer? Recent case law from the United Kingdom provides insight. 

Background

 In recent years, the courts in the United Kingdom have discussed whether a foster care agency or local authority is vicariously liable for the tortious acts of foster care parents.
 
In Australia, many of the cases on vicarious liability have involved an employee/employer relationship. The decisions of Armes v Nottingham County Council (Armes) and DJ v Barnsley Metropolitan Borough Council (DJ) provide guidance on how vicarious liability is considered by the courts, and how the foster agency/foster parent relationship may be akin to an employment relationship.

Armes v Nottinghamshire County Council [2017] UKSC 60

 In Armes v Nottingham County Council, heard in the United Kingdom, the plaintiff was a foster child who suffered sexual and physical abuse perpetrated by their foster carers. The plaintiff had been placed in care with the foster carers by a local authority.
 
The UK Supreme Court was required to determine whether a local authority was liable for failing to keep the plaintiff safe or vicariously liable for the actions of the foster parents.
 
In considering the principles of vicarious liability, the court considered the following questions:

1. What sort of relationship must exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual? (stage 1); and

2. In what manner does the conduct of that individual have to be related to that relationship in order for vicarious liability to be imposed? (stage 2).

Lord Reed considered that typical features of an employment relationship were sufficiently present in the relationship between the local authority and the foster parents. In particular, the features were:

1. The local authority had a statutory duty to care for children. It involved provision of accommodation, maintenance and daily care. Allowances were paid to foster carers and in-service training was provided. As such, the foster parents cannot be regarded as carrying on an independent business of their own;

2. The torts committed against the plaintiff were committed by the foster parents in the course of an activity carried on for the benefit of local authority;

3. The local authority's placement of children in care with foster parents creates a relationship of authority and trust between the foster parents and the children in circumstances where close control cannot be exercised;

4. The local authority exercised powers of approval, inspection, supervision and removal. By virtue of those powers, the local authority exercised a significant degree of control over both what the foster parents did and how they did it;

5. Most foster parents have insufficient means to be able to meet a substantial award of damages, and are likely to have insurance against their own propensity to criminal behaviour. The local authorities can more easily compensate the victims of injuries which are often serious and long-lasting.

The court held that the local authority was vicariously liable for the torts committed by the foster carers, and the relationship between the authority and carers had the features as discussed above.

DJ v Barnsley Metropolitan Borough Council & AG

 In this case heard before the High Court of the United Kingdom, the Court was required to consider whether a local authority can be held vicariously liable for the tortious acts committed by family members who take on foster care responsibilities.
 
The plaintiff was placed into the care with his maternal aunt and uncle in 1980. Prior to being placed with the family, the plaintiff had not met his maternal aunt and uncle. The plaintiff lived with the family from age nine  to his late teens. During his time with the family, the plaintiff alleged that he was sexually abused by his maternal uncle.
 
The plaintiff relied on the decision in Armes in support of his case that the defendant was vicariously liable for the actions of the foster carers and in particular relied on the features of an employment relationship described by Lord Reed. The defendant argued that the decision in Armes did not apply as the foster carers were relatives of the plaintiff.
 
At first instance, the court did not accept that the local authority was vicariously liable for the actions of the foster carers and the action was struck out.
 
The plaintiff appealed the case to the High Court. Justice Lambert DBE considered the following from the analysis of the stage 1 test for vicarious liability from Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB:

1. The test which the court must apply is whether the relationship is "akin to employment";

2. In applying the "akin to employment" aspect of the test, the court should consider those features which are similar to or different from a contract of employment. For example, remuneration, control, whether the work is being carried out for the defendant's benefit, appointment and termination and hierarchy of seniority;

3. "Akin to employment" does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor.

In considering the case, Justice Lambert DRE considered that whilst there were factors pointing in the direction of an employment relationship, there were equally pointers away, including that the maternal aunt and uncle were not recruited or selected for the roles of foster carers nor were they trained by the local authority.
 
The court held that the foster carers were engaged in an activity which was more aligned to that of parents raising their own child, and that the activity was sufficiently distinct from that of the local authority exercising its statutory duty.
 
The appeal was dismissed.

Key Takeaways 

 These decisions coming out of the United Kingdom show how a foster agency and foster parent relationship may be found to be akin to an employment relationship, and how a finding of vicarious liability may be made against the foster agency.

The cases demonstrate that each case will turn on its own facts having regard to the relationship between the plaintiff and the foster carers.