The Supreme Court this week decided a significant case in relation to the ongoing litigation arising from historic child sex abuse. The claimants had all been abused in 1980s whilst in foster care managed by Nottinghamshire County Council. In 2001 the House of Lords held that you could hold a children’s home liable for abuse committed on its premises by a member of staff under the doctrine of vicarious liability. Subsequent cases have widened the scope of this responsibility to hold organisations such as the Catholic Child Welfare Society responsible for abuse committed in one of its residential schools.
In Armes v Nottinghamshire CC , which was handed down by the Supreme Court on Wednesday, the claimants were able to expand this still further arguing that given the ” local authority carried out the recruitment, selection and training of foster parents, paid their expense” and conducted a number of other processes the relationship they had with foster parents was akin to that of employer. Furthermore the local authority
“exercised powers of approval, inspection, supervision and removal” of children being placed with foster families meaning that the whole framework of the adoption process was under their direct control.
What was more interesting however was the issue of delegated and non-delegable duties as the claimants lost this particular argument. Some duties of care in Tort law are non-delegable this means that a person with that duty of care cannot discharge it to another party. The leading case on this is Woodland v Essex County Council which arose after a child was seriously injured during the course of a school swimming lesson which was run by a company called Direct Swimming Services who had been employed by the local authority to teach children swimming. Normally it would be the company who would have been held responsible but the Supreme Court held the local authority responsible because their duty of care towards the children under their care was non-delegable – it could not be passed on to someone else. This was limited in scope the Supreme Court held as Parents are legally obliged to entrust their child’s care to a school despite having no control over how that care manifests itself. But crucially public authorities would only owe a duty in respect of functions which they assumed a duty to perform and where the control over the child had been delegated. The Law Lords seemed to favour a limited construction of delegated duties which concentrated on the discharge of statutory functions.
In Armes Lord Reed (Paragraphs 37-45 are the relevant ones for this discussion) held that it was too broad to hold that foster care was a non-delegable duty of care as it would limit the local authorities options in discharging their functions. The Child Care Act 1980 permits a local authority to arrange for children in care to spend time staying with their parents or grandparents, or other relatives or friend . The crucial question (para 37) was “whether the function of providing the child with day-to-day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements”
To hold them liable for every action taken by any of those groups of people would mean that the local authority would not be promoting the best interests of the child as they would be too concerned with avoiding liability. This is applied Woodland and limited the scope of what would be considered a non-delegable duty of care.
This case should be understood as the Court’s attempt to determine what mechanism imposed liability on the authority for the actions of their appointed foster carers. To simply hold that this duty was not duty that could be delegated would be too far reaching an imposition on the Council. Instead focusing on the control the Council had to prevent abuse occurring was a better framework for the imposition of liability as it focused more on what the council could potentially have done to prevent such abuse occurring.