When dealing with cases of child abuse, strong emotions are stirred in almost all people with clear feelings of right and wrong being arrived at. However, when seeking to compensate an abused party, the question of who should, or can meet a Judgment is a lot more complex, since the culpable individual may have no means with which to satisfy such a Judgment rendering it almost worthless. Accordingly, victims often need to look to other parties to satisfy their claims and this in turn, has led to the consideration of why, or who placed them into the position in which they were abused in the first place. This in turn has led to a fertile and ever developing body of law in the field of vicarious liability.

The Supreme Court on the 18th October 2017 handed down its decision in the case of Armes v Nottinghamshire CC [2017] UKSC 60, a landmark and much awaited decision in the field of child abuse claims. Out of the 5 Lords hearing the appeal, only Lord Hughes dissented in what should be seen as a victory for victims of child abuse.

The facts

The Claimant had been taken into the care of the local authority in February 1985 when she was aged seven. Statutory care orders followed and between March 1985 and March 1986 she was fostered by a Mr and Mrs Allison. Without going into the details of the allegations, Males J at first instance found that she was physically and emotionally abused by Mrs Allison. Between October 1987 and February 1988, she was fostered by a Mr and Mrs Blakely. Males J also found that during that period, she was sexually abused by Mr Blakely.

Notably, in each case, the abuse took place in the foster home in the course of day-to-day care and control of the Claimant. Mrs Allison employed grossly excessive violence to discipline her. Mr Blakely molested her when bathing her and when she was alone in her bedroom. As a result of this the Claimant suffered personal injuries and consequential losses.

The issue before the Supreme Court

It was not suggested that the Defendant was at fault for the selection of the foster carers. The question before the Court was whether the local authority was nevertheless liable to the Claimant for the abuse which she suffered, either on the basis that they were in breach of a non-delegable duty of care, or on the basis that they are vicariously liable for the wrongdoing of the foster parents.

Non- delegable duties

Lord Reed in the leading Judgment highlighted at paragraph 30 of the judgment that;

Liability in tort normally depends on the breach of a duty owed by the defendant to the claimant. The only true exception to that principle under the common law is vicarious liability, where for reasons of policy the defendant is held liable for the breach of a duty owed to the claimant by a third party. There cannot, however, be any rationale for imposing vicarious liability on a defendant where he is directly liable for the harm caused by the third party. It therefore makes sense to consider the scope of the defendant’s own duties before considering whether vicarious liability may exist“.

With the battle lines clearly drawn, the Supreme Court went onto to consider the issue of non-delegable duties of care. The term “non-delegable duties of care” is commonly deployed in a legal context to refer to a duty to not merely to take personal care in performing a given function, but to ensure that care is taken. It demands a higher standard of care than the ordinary duty of care. Such duties cannot be discharged merely by the exercise of reasonable care in the selection of a third party to whom the function in question is delegated. Such claims that flow from such a breach are founded upon not the negligence of the Defendant, but on the breach of a duty to ensure that care is taken.

In Woodland v Essex County Council [2013] UKSC 66 Lord Sumption identified a number of characteristic features of such cases the assumption by the Defendant of a positive duty to protect the Claimant from harm, and the delegation by the Defendant to a third party of some function which is an integral part of the positive duty which he has assumed towards the Claimant. Lord Sumption arrived at five criteria to be applied in such cases, these were

  1. a. The Claimant is a patient or child or some otherwise vulnerable or dependent person;
  2. b. There is an antecedent relationship between the Claimant and the Defendant which puts the Claimant in the care of the Defendant and from which it is possible to assign to the Defendant a positive obligation actively to protect the Claimant from harm (as opposed to a duty simply to refrain from harmful conduct);
  3. c. The Claimant has no control over how the Defendant chooses to perform those obligations;
  4. d. The Defendant has delegated some part of its function to a third party, and the third party is exercising, for the purpose of the function delegated to it, the Defendant’s custody or care of the Claimant and the element of control that goes with it; and
  5. e. The third party has been negligent in the exercise of that delegated function.

The central issue in deciding if the Defendant was in breach of a non-delegable duty before the Supreme Court in Armes 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 as per the Child Care Act 1980 . There is a body of case law that the duty of a parent, or of a person exercising temporary care of a child in “loco parentis“, is a duty to take reasonable care, as in Carmarthenshire County Council v Lewis [1955] AC 549, Harris v Perry [2008] EWCA Civ 907 and Surtees v Royal Borough of Kingston upon Thames [1991] 2 FLR 559. In considering if the duty had been discharged, Lord 3

Reed held concluded at paragraphs 49 – 51 of the Judgment after a in depth consideration of the Law and the intention behind it that;

“I conclude that the proposition that a local authority is under a 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, is too broad, and that the responsibility with which it fixes local authorities is too demanding. I therefore reach the same conclusion as the Court of Appeal on this aspect of the case, although for somewhat different reasons.

[But] … I am unable to agree with Burnett LJ’s view that if, applying the principles in the Christian Brothers case, there is no vicarious liability for an assault upon a child in care, then the common law should not impose liability via the route of a non-delegable duty. That, with respect, is to conflate two distinct legal doctrines with different incidents and different rationales, and to misunderstand the relationship between them…

Nor am I able to agree that a non-delegable duty cannot be breached by a deliberate wrong: see, for example, Morris v C W Martin & Sons Ltd [1966] 1 QB 716“.

Effectively, on the facts before the Supreme Court, the duty owed was not a non-delegable one.

Vicarious liability

In dealing with the issue of vicarious liability Lord Reed referred to the case of Cox v Ministry of Justice [2016] UKSC 10 and the two questions posed when dealing with the issue of the imposition of vicarious liability, namely;

  1. a. What sort of relationship has to exist between an individual and a Defendant before the Defendant can be made vicariously liable in tort for the conduct of that individual?
  2. b. In what manner does the conduct of that individual have to be related to that relationship in order for vicarious liability to be imposed?

The case of Armes only concerned the first point. It had been conceded by the Defendant that if the relationship between the local authority and the foster parent is one which can give rise to vicarious liability, then the abuse of the child is a tort for which vicarious liability should be imposed. Under the doctrine of vicarious liability, the law holds a Defendant liable for a tort committed by another person. The doctrine can only apply where the relationship between the Defendant and the tortfeasor has particular characteristics justifying the imposition of such liability (for example the relations hip between a employer and employee). As was highlighted in Cox and in the earlier case of the Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, the doctrine can also apply where the relationship has certain characteristics similar to those found in employment, subject to there being a sufficient connection between that relationship and the commission of the tort in question. Cox makes reference to five incidents of the relationship between employer and employee which usually would make it fair, just, and reasonable to impose vicarious liability, namely that; 4

  1. a. The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
  2. b. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
  3. c. The employee’s activity is likely to be part of the business activity of the employer;
  4. d. The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; and
  5. e. The employee will, to a greater or lesser degree, have been under the control of the employer.

In applying these criteria to the facts of the case, each was answered positively in the favour of the Claimant. Detailed reasoning can be found in paragraphs 59 – 63 of the Supreme Court’s Judgment which is detailed and balanced. The concluding remarks at paragraph 65 of the Judgment, summarise the position excellently with;

It is important not to overstate the extent to which external control was absent from the fostering with which this case is concerned, as explained earlier. The local authority controlled who the foster parents were, supervised their fostering, and controlled some aspects of day to day family life, such as holidays and medical treatment. More fundamentally, it is important not to exaggerate the extent to which control is necessary in order for the imposition of vicarious liability to be justified…. It is not necessary for there to be micro-management, or any high degree of control, in order for vicarious liability to be imposed.

State-funded care, abuse and the economic balance

The Judgment also seeks address to the difficulties Local Authorities face in funding, and the sourcing of foster carers. In weighing up the complexity and also the sensitivity of the issues, Lord Reed concluded at paragraphs 67 – 68 of the Judgment that;

“The idea that the imposition of vicarious liability might discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, is difficult to accept, even if one grants the premise that local authorities might be deterred by financial considerations from performing their statutory duty to promote the welfare of the children in their care. Local authorities are vicariously liable for the abuse of children by those whom they employ in residential care homes. There could therefore be an economic advantage, from the perspective of local authorities or their insurers, in placing children in local authority residential care rather than in foster homes, only if, assuming all other costs were equal, the incidence of abuse was lower in the former than in the latter. No evidence has been produced as to whether that is the position. Furthermore, other financial considerations would have to be taken into account: for example, one would expect the cost of care in a residential home to be much higher than the relatively modest payments to foster parents which were mentioned in this case. That would also be the answer if it were suggested that the imposition of vicarious liability could incentivise local authorities to place children in residential homes provided by private operators. Not only is private residential care more expensive than foster care, but 5

the operators of residential care homes might be expected to pass on to the local authorities the costs arising from their own vicarious liability“.

Lord Reed also took the time to tackle the issue of floodgate litigation at paragraph 69 of the Judgment with;

If, on the other hand, there is substance in the floodgates arguments advanced on behalf of the local authority – if, in other words, there has been such a widespread problem of child abuse by foster parents that the imposition of vicarious liability would have major financial and other consequences – then there is every reason why the law should expose how this has occurred…. It is all very well to point to the cost of such precautions, and to the cost of compensating the victims, and to complain that this will divert the resources of local authorities from other channels“.

The arguments raised by the Council as to the danger of flood gate or litigation, or economic reasons being in part to blame for abuse whilst I have no doubt are accurate, are unpalatable and not to be supported. It is reassuring to see such points being dismissed.


The case should be a seen as a real victory for victims of child abuse suffered whilst in foster care. It is right to highlight that such abuse still needs to have been provided on the balance of probabilities to have taken place for a claim to succeed, and also that arguments on the basis of the limitation act 1980 are likely to still be encountered.

Whilst not part of the written judgment, it is notable that in the handing down of the Judgement, Lord Reed said, “the appeal will affect other people who were abused in foster care, subject to any differences in legislation and practise at the relevant time“. His point that if there has been widespread abuse of children in foster care, then there is every reason for an investigation, despite the cost and inconvenience to Local Authorities is reassuring and reflects a positive development socially in our attitude towards abuse, and our willingness to confront it. It will be interesting to see if this Judgement emboldens abused individuals to come forward and seek recompense.


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