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Armes (NA) – v – Nottinghamshire County Council. Supreme Court rule child abuse victory for Nottingham Claimant against Nottinghamshire County Council

Posted on: October 18, 2017

Armes (NA) -v- Nottinghamshire County Council – A welcome victory for abused foster children

Supreme Court rule child abuse victory for Nottingham Claimant against Nottinghamshire County Council

Today, the Supreme Court gave a much-awaited judgement in the case of Armes (NA) -v- Nottinghamshire County Council finding that local authorities are vicariously liable for the actions of foster parents.

The claimant, Natasha Armes, was placed in the care of Nottinghamshire County Council during her childhood.

During her time in care, she was placed with two sets of foster parents, Mr and Mrs Allison between March 1985 and March 1986, and Mr and Mrs Blakely between October 1987 and February 1988.

During her time in these placements, Armes was physically abused by Mrs Allison and sexually abused by Mr Blakely.

It was Armes’ case that the abuse had occurred through the negligence of the local authority or in the alternative that Nottinghamshire County Council were liable for the abuse under the legal principles of vicarious liability and/or the principle of a non-delegable duty of care.

The matter came before the Honorable Mr Justice Males in the High Court in November 2014 (Armes v Nottinghamshire County Council [2014] EWHC 4005 (QB)).
The Judge dealt with the issues of liability and limitation, leaving causation and quantum to be dealt with later. In relation to limitation, he disapplied the limitation period pursuant to section 33 of the Limitation Act 1980.

In respect of liability, Mr Justice Males found that Armes had been abused by her foster parents – physically by Mrs Allison, and sexually by Mr Blakely.

Turning then to liability the Judge held that Nottinghamshire County Council were not negligent in their selection or supervision of the respective foster parents. He also rejected the argument that Nottinghamshire County Council were liable under the legal principles of vicarious liability or non-delegable duty for that abuse. The provision of family life, which a foster arrangement sought to reflect, in the judges view militated against such a finding of liability, both vicarious and non-delegable, the latter creating a tension in respect of abuse committed by parents where a child was returned home whilst remaining under a care order.
Armes appealed to the Court of Appeal on the basis that Nottinghamshire County Council should have been liable for the foster parents under the principles of vicarious liability or non-delegable duty.

The matter came before the Court of Appeal in 2015 (Armes v Nottinghamshire County Council [2015] EWCA Civ 1139). The Court of Appeal affirmed the decision of the High Court Judge, citing the level of control exercised by the local authority, decried to be on a “Macro level” against the day to day control of the foster parents on a micro-management level. Armes appealed.

The matter was heard before the Supreme Court on February 8-9, 2017.

Today, the Supreme Court bench, consisting of Lady Hale, Lord Kerr, Lord Clarke, Lord Reed and Lord Hughes (dissenting), handed down judgment in favour of the claimant Armes, finding that the local authority are vicariously liable for the actions of their foster parents.

In deliberating whether the local authority could be liable in either principle of vicarious liability or non-delegable duty, the Supreme Court Justices first considered the statutes which applied to a local authority and children in their care, namely the Children and Young Persons Act 1969 and the Child Care Act 1980, which applied before the Children Act 1989.

The Justices disagreed with Males J and found that while the local authority did not exercise day-to-day control, they nevertheless, through the Regulations, had powers and duties of approval, inspection, supervision and removal without any parallel in ordinary family life.

Non-delegable duty

The Justices in their discussions first considered whether a local authority could be liable for foster parents under a non-delegable duty.

They found that if a non-delegable duty was imposed, then it would render the local authority strictly liable for the tortious acts of the child’s own parents or relatives if a care order was in place and thus create a form of state insurance.

They therefore reached the conclusion that a non-delegable duty would be too broad and would fix upon the local authority a responsibility which would be too demanding.

Vicarious liability

They then considered whether the local authority was vicariously liable for the torts committed by foster parents against children.

When deliberating, the Justices considered the approach adopted in Cox -v- Ministry of Justice which recently reviewed the imposition of vicarious liability.

In Cox, reference was made to five factors of the relationship between employer and employee which had been identified by Lord Philips in the Christian Brothers case as usually making it fair, just and reasonable to impose vicarious liability and which could properly give rise to vicarious liability.

The Justices considered the five factors present in Cox in the context of this case. They found:

• That foster parents could not be regarded as carrying on an independent business of their own; when looking at the responsibilities of the local authority and those of the foster parent, the court concluded that it was simply not possible to draw a sharp line between the two.

• The torts committed against a child in a foster placement were committed by foster parents in the course of an activity carried on for the benefit of the local authority.

• The local authority’s placement of a child in the care of foster parents creates a relationship of authority and trust between the foster parents and the child. Through its own choice of placement, the local authority renders a child particularly at risk to abuse and that it is therefore fair that the local authority should compensate that child should the risk materialise

• The local authority exercised powers of approval, inspection, supervision and removal without any parallel in ordinary family life. By virtue of those powers, the local authority exercised a siginifcant degree of control over both what the foster parents did and how they did it, in order to ensure a child’s needs are met. Whereas the foster parent exercised a control over the child on a day to day basis, real control over the placement, supervision and management of the foster placement remained with the local authority. It was the local authority who controlled the child’s movements in the greater sense, so that a foster parent cold not for example remove the child from the jurisdiction, it was the Local authority would controlled any medical treatment and consent to such treatment and it was the Local authority who could end the placement, “reflecting the fact that it was the local authority, not the foster parents, which possessed parental powers in relation to the child.”

• The local authority has the ability to satisfy an award for damages
After they considered the Court of Appeal’s analysis, the Justices accordingly held that the local authority are vicariously liable for the torts committed by the foster parents.

This Judgment provides welcome relief for those claimants who have been abused in a foster care placement by their foster parents, and has now provided further and clear clarity as to the imposition of vicarious liability.

Read the full judgement: Armes – v – Nottinghamshire County Council Full Supreme Court Judgement