Armes was placed in the care of Nottinghamshire County Council between the ages of seven to 18. The council placed her into foster care with two families:
- Mr and Mrs A between March 1985 and March 1986; and
- Mr and Mrs B between October 1987 and February 1988.
Arms was physically and emotionally abused by Mrs A, and sexually abused by Mr B. In both cases the abuse took place in the foster home in the course of day-to-day care.
The High Court and the Court of Appeal dismissed claims that Nottinghamshire County Council was vicariously liable or in breach of a non-delegable duty.
Supreme Court decision
The Supreme Court had been asked to rule on whether Nottinghamshire County Council was liable for the abuse suffered by Armes, on the basis of being in breach of a non-delegable duty, or whether it was vicariously liable for the wrongdoing of the foster parents.
The judgment considered the threshold to be passed to establish a non-delegable duty of care. The council was found not to have reached the threshold for a non-delegable duty to ensure that reasonable care is taken for the safety of children in care while they are in the care and control of foster parents. The court deemed this to be ‘too broad, and fixes local authorities with too demanding a responsibility’.
However, following principles established in
Cox v Ministry of Justice [2016] UKSC 10, [2016] All ER (D) 25 (Mar), the court found the council vicariously liable for the acts of the foster parents. This was for reasons including, among others:
- integration and business activity—the abuse committed by the foster parents against the Armes was committed by the foster parents in the course of an activity carried on for the benefit of the local authority
- the local authority carried out the recruitment, selection and training of foster parents, paid their expenses, and supervised the fostering. Therefore, the foster parents were not carrying on an independent business of their own
- creation of risk—children are particularly vulnerable to abuse as they are placed with foster parents creating a relationship of authority
- control—the local authority exercised a significant degree of control over the foster parents; it exercised powers of approval, inspection, supervision and removal. Micro-management, or a high degree of control, are not necessary for the imposition of vicarious liability
Fleetwood and Duddridge said, following the decision, 'local authorities will wish to review their abilities to oversee the care of children'.
Damages
In relation the ability to satisfy an award of damages, Fleetwood and Duddrige said:
'Vicarious liability is only of practical relevance in situations where:
- the principal tortfeasor cannot be found or is not worth suing;
- the person sought to be made vicariously liable is able to compensate the victim of the tort.'
Fleetwood warned that, as most foster parents have insufficient means to meet a substantial award of damages, 'the local authorities which engage them can more easily compensate the victims of injuries which are often serious and long-lasting'.
