The claimant in this case was sexually and physically abused by foster carers whom she was placed with whilst in the care of the local authority. The Supreme Court Judgment in Armes is a departure from previous cases on this issue and decided that a local authority could be vicariously liable for the wrongful acts committed by a foster carer against children in local authority foster care.
Vicarious liability is a legal concept that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently. The leading case on this is Cox v Ministry of Justice  UKSC 10. The issue in that case was what sort of relationship had to exist between an individual and a defendant before the defendant could be made vicariously liable in tort for the conduct of that individual? In Cox, the criteria for such a relationship is:
- The employer was more likely to have the means to compensate the victim than the employee and could be expected to have insurance against that liability;
- The tort was committed as a result of activity being taken by the employee on behalf of the employer;
- The employee’s activity was likely to be part of the business activity of the employer;
- The employer, by employing the employee to carry on the activity, created the risk of the tort being committed by the employee; and
- The employee was, to a greater or lesser degree, under the control of the employer.
In Armes the court did not consider the question of whether foster carers were employed by local authorities but noted that vicarious liability may arise outside the employment context where a relationship has certain characteristics similar to those found in employment, as identified in Cox. The court went on to note that:
- Foster carers would not have sufficient means to be able to compensate the victim and were unlikely to have insurance in place.
- Foster carers provided care to the child as an integral part of the local authority’s child care services.
- Foster carers were not carrying out an independent business of their own. The care provided by foster carers was integral to the local authority’s business of caring for the children.
- The local authority’s placement of children in their care with foster parents whilst usually in the best interest of the children did render the children vulnerable to abuse.
- The local authority exercised a significant degree of control over both what the foster parents did and how they did it, in order to ensure that the children’s needs were met.
Consequently, vicarious liability should be imposed in this context.
The decision is absolutely the right one. Foster carers today pursue fostering as a career and they are paid extremely well. They are rigorously vetted and insured and their status is much closer to that of an employee. There was always a perplexing inconsistency between the vicarious liability of a local authority for the wrongful acts of residential care workers and foster carers in circumstances where both essentially did the same job. This long-awaited judgment has rectified that inconsistency and puts victims of abuse in foster care on an equal footing.
Author: Rochelle Lambert