Historical sexual abuse in foster care – who is to blame?

Historical sexual abuse allegations are a complex area of law. They are also a demanding hurdle to overcome for any legal team as well as being traumatic for any client.

The decision of Armes v Nottinghamshire County Council (Supreme Court 18 October 2017) may, in time, change the manner in which such cases proceed. It may also lead to further claimants coming forward to pursue such cases.

The appeal in Armes centred around whether the Local Authority could be held responsible for the abuse subjected to a child in the 1980s, by the child’s foster-parents. At the original Trial, the Claimant had succeeded in proving it has been abused by its foster-parents. However the Trial Judge refused to impose Non-Fault Liability on the part of the Authority in relation to the abuse. In the Court of Appeal the Trial Judge gave the Claimant permission to appeal and legal argument was held on the 8^th and 9th February 2017.

On appeal to the Supreme Court, the Claimant’s appeal was allowed on the basis that it was fair, just and reasonable to extend the doctrine of vicarious liability on the part of a Local Authority to the act, even deliberate and intentional acts, committed by foster-parents towards a foster-child, even in the absence of any fault on the part of the Local Authority.

In his Judgment, Lord Reed set out the Court’s reasoning as to why such an extension of vicarious liability was justified and at paragraph 60 of his Judgment, he said the following :-

“Although the picture presented is not without complexity, nevertheless when considered as a whole, it points towards the conclusion that the foster-parents provided care to the child as an integral part of the Local Authority’s organisation of its Child Care Services. If one stands back from the minutiae of daily life and considers the Local Authority’s statutory liabilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the Local Authority, who were responsible for the care of the child and the promotion of her welfare, and that of her foster-parents, whom they recruited and trained, and with whom they placed the child in order for her to receive care

in the setting which they considered would best promote her welfare. In these circumstances, it can properly be said that the torts committed against the Claimant were committed by the foster-parents in the course of an activity carried on for the benefit of the Local Authority.”

Lord Hughes in his dissenting Judgement felt that such a decision would lead to a flood of claims. However, Lord Reed held that such concerns were insufficient to displace the majority view that vicarious liability can and should attach in a foster-care context.

The concept of non-fault liability therefore would appear to attach to the tortious acts of foster-parents with whom the child had been placed by the Local Authority. However, one must not overlook the fact that an innocent victim of childhood sexual and physical abuse is, indeed, at the heart of the case and is simply seeking redress for the alleged harm caused by that abuser. It is all too easy to become ‘swept up’ by legal argument and debate and to forget what gives rise to that debate are human experiences which are very often unpleasant.

Until the Judgment in Armes one was prevented from any remedy from the Local Authority simply because the relevant abuse had been carried out by foster-parents into whose care the Local Authority had placed them. There was no comparable mechanism of non-fault liability. However, the Supreme Court’s extension of the doctrine of vicarious liability to the deliberate acts of foster-parents is a welcome one ensuring parity between the victims of proven childhood abuse by foster parents and Local Authority employees, providing now in both instances a non-fault route to securing compensation for the alleged consequences of such abuse.