Appeal against finding that a local authority was not responsible for the sexual abuse of the appellant whilst with foster carers as a child.
Held: As to whether the duty as non-delegable, such a duty must relate to a function which the local authority had assumed a duty to perform. Fostering was not a function which the local authority could perform: it must be entrusted to others. By placing the child with foster parents, the local authority discharged rather than delegated their duty under section 21 of the 1980 Act to provide accommodation and maintenance for a child in their care
In relation to vicarious liability, Tomlinson LJ considered that the local authority did not exercise sufficient control over the foster parents for vicarious liability to arise. The provision of family life could not be part of the activity of the local authority or of the enterprise upon which they were engaged, because inherent in it was a complete absence of external control over day to day family routine. The control retained by the local authority was at the ‘higher or macro level’, as opposed to ‘micro-management of the day to day family environment’. It was therefore ‘irrelevant to the risk of abuse occurring during the unregulated course of life in the foster home’.
Black LJ also rejected the imposition of vicarious liability, for reasons similar to those of Tomlinson LJ.
Burnett LJ agreed with both judgments as to vicarious liability.
Burnett LJ considered that the relevant duty was the duty of the local authority to care for the child: to promote her welfare and to protect her from harm, so far as reasonably practicable. If, applying the principles summarised in the Christian Brothers case, there was no vicarious liability for an assault upon a child in care, then in his view the common law should not impose liability via the route of a non-delegable duty. He also doubted whether a claim for breach of a non-delegable duty could arise in consequence of an intentional wrong
Black LJ broadly agreed with the judge. The local authority delegated to the foster parents the obligation to care for the claimant as a parent or guardian would, which was an integral part of the positive duty which they had assumed towards her. Like the judge, however, she also considered that it would not be fair, just or reasonable to impose a non-delegable duty on the local authority. In that regard, in addition to the resource implications of the imposition of strict liability for torts committed by foster parents, she also emphasised the risk that local authorities would be reluctant to place children in their care with foster parents, or with their own parents, if a non-delegable duty were imposed. Like Burnett LJ, she noted that the duties of local authorities were assimilated by section 10(2) of the 1980 Act to those of parents, and observed that parents were not subject to a non-delegable duty. Unlike Burnett LJ, she did not treat the absence of vicarious liability as bearing on the question whether there was a non-delegable duty, and she questioned the idea that a non-delegable duty could not be breached by deliberate wrongdoing
Black, Tomlinson, Burnett LJJ
 EWCA Civ 1139,  2 WLR 1455,  WLR(D) 457,  PTSR 580,  Fam Law 171,  QB 739,  1 FCR 419,  2 FLR 1050
England and Wales
Appeal from – NA v Nottinghamshire County Council QBD 2-Dec-2014
The claimant said that as a child the defendant had failed in its duty to protect her from her abusive mother and later from foster parents.
Held: Males J, dealt with the issues of liability and limitation, leaving issues concerning causation . .
Cited – New South Wales v Lepore 6-Feb-2003
Austlii (High Court of Australia) 1. Appeal allowed in part
2. Paragraph 2 of the order of the Court of Appeal of New South Wales made on 23 April 2001 set aside, and in its place, order that the judgment . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
See Also – Armes v Nottinghamshire County Council QBD 15-Nov-2016
Application to set aside anonymity order granted in earlier proceedings alleging sexual abuse. . .
At CA – Armes v Nottinghamshire County Council SC 18-Oct-2017
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care . .
These lists may be incomplete.
Updated: 14 March 2021; Ref: scu.554610