All the care in the world

The constant flow of child abuse cases, reported in the family and criminal courts, together with recent high-profile cases from the civil courts, is an unfortunate illustration of the resilience of this problem.

The majority of child abuse compensation claims are brought either by children abused in care homes or in schools. The other emerging category is 'failure to take into care' cases where the child has been abused within the family setting, but the local authority has not acted to protect that child.

Claims involving foster parents are less common; however, foster care is now the main means by which children are looked after by the state. This raises the issue of how a child abused by foster parents brings a civil claim many years after the event. At present, children abused in a children's home by a care worker have a distinct advantage. The conviction of their abuser combined with the possible application of vicarious liability may well overcome the issues of proving negligence and overcoming limitation as against that abuser's employer.

The background of employer liability

The idea that an employee acting in the course of his employment may by his deliberate and illegal act make his employer liable, has been with us for some considerable time (Dyer v Munday [1895] 1 QBD 742). Initially the Court of Appeal showed some resistance to the concept of an employer becoming vicariously liable for the acts of an abusive care worker. In Trotman v North Yorkshire County Council [1999] IRLR 98 the claimant alleged sexual assault by the deputy headmaster of a special school. He sued the local authority alleging vicarious liability. The Court of Appeal held that such assaults were outside the scope of the assailant's employment. However, Trotman was overruled by the House of Lords in Lister v Hesley Hall Limited [2001] 2 WLR 1311 HL. The claimants were pupils at a privately owned residential school, who alleged sexual abuse by the warden. The House of Lords found that the defendant was vicariously liable for the warden's acts of abuse. The warden had such close contact with his pupils that there was sufficient connection between the work he was employed to do and the acts of abuse he had committed for those acts to be committed within the scope of his employment.

In coming to its decision the House was impressed by two groundbreaking Canadian Supreme Court decisions on vicarious liability: Bazley v Curry and Jacobi v Griffiths (1999) 174 DLR (4th) 45 and (1999) 174 DLR (4th) 71. In Bazley the court decided that a non-profit organisation was vicariously liable for abuse carried out by its employees in two children's homes, which it owned. By contrast, in Jacobi, the court decided that a 'Boys and Girls Club' was not vicariously liable for abuse carried out by an employee of the club. The distinction appeared to turn on the fact that in Jacobi the club's 'enterprise' offered group recreational activities to be enjoyed in the presence of volunteers and other members.

Lister was a favourable decision for victims of child abuse but, at that time, a claim based on intentional assault was restricted by the non-extendable six-year time limit (Stubbings v Webb [1993] AC 498). This has now been swept away by the judgment in A v Hoare [2008] UKHL 6 where the House of Lords said that the issues of vicarious liability were very much narrower than those arising on negligence, and that in turn meant that an application under section 33 of the Limitation Act 1980 stood more chance of success. In essence, if it were clear that the abuser was an employee, and the only issue (his guilt) had already been decided by a criminal court, then it might be difficult to see what prejudice would accrue to him or his employee by the passage of time.

A different position

Therefore, it might be argued that if a local authority can be fixed with vicarious liability for the abuse of a child by a care worker in a children's home, there should be no difference between that situation and the abuse of a child by foster carers in a foster home. There appears to be the same close connection between what the foster parent is retained to do, and any abuse that is perpetrated upon the child. The difficulty arises in the actual status of foster carers and, while the courts have been willing to find vicarious liability in residential care homes and schools, the position is quite different in relation to foster care.

In the case of Sargent v Walsall Metropolitan Borough Council and others (unreported) Court of Appeal, 27 June 1985, the claimant was a foster child who suffered severe burns to the soles of her feet, for reasons that were unknown. The foster parents were acquitted of any wrongdoing. She brought a claim against her foster parents and the local authority that retained them. There was no allegation that the council had been negligent in selecting the foster parents or supervising them. The claimant's counsel submitted that there was a relationship of principal and agent or of a sufficient proximity to make the local authority liable for the acts of the foster parents. The matter came before the Court of Appeal.

At that time, the Court of Appeal said that there was no authority either way on this issue but they described counsel's submission as 'a startling one'. They considered section 13 of the Children Act 1948, from which there was derived the power to board out with foster parents. Oliver LJ said that the statute and the regulations showed that this was a statutory scheme and that the relationship between the child and the local authority, and between the child and the foster parents was one which was regulated simply and solely by the provisions of the statutory scheme. Foster parents were simply the means by which the local authority carried out its own duty, and they would not be vicariously liable for the acts or omissions of foster parents.

In H v Norfolk [1997] 1 FLR the claimant alleged physical and sexual abuse against his foster father. He claimed against the local authority in so far as it had been negligent in failing to supervise his placement. The claim was struck out on the basis of the judgment in X (Minors) V Bedfordshire County Council [1995] 3 All ER 353. The Court of Appeal drew a distinction between a claim based on the actions of school employees and this type of claim. Lord Justice Simon-Brown said at page 391:

'The school analogy is unhelpful, because the liability there will generally be based on vicarious liability for the actions of the school's employee. Furthermore the degree of control exercisable over the actions taking place within the confines of a school is likely to be substantially greater than that which can practicably be exercised by a local authority over foster parents.'

International decisions

Other jurisdictions have dealt with this issue. An early case from the Supreme Court of British Columbia in Canada, Brooks v Regina 2000 BCSC 735 (Canlii), stated that the state was vicariously liable for the damage caused by the wrongful behaviour of foster parents towards children in their care. However, more recently the Canadian Supreme Court has turned against the notion of vicarious liability in foster care in MB v British Columbia and KLB v British Columbia [2003] 2 SCR 477 and [2003] 2 SCR 403. In the case of KLB, Chief Justice McLachlin said that foster parents were essentially independent and that they were intended to give the child a proper family life. They did not have to check with the state before making day-to-day decisions. If it were otherwise, they would not have the authority that children came to expect from parents. That was part of the rationale for refusing to impose vicarious liability on the government.

In New Zealand, the Court of Appeal has been more favourable to the concept as seen in S v Attorney General [2003] 3 NZLR 450. In that case the court agreed that not recognising vicarious liability where the state had only formally taken responsibility for the children would result in the very regime designed to protect children being undermined. That case was distinguished in A v Roman Catholic Archdiocese of Wellington & Ors [2008] NZCA 49. The claimant was a child in care, who was placed with caregivers in the school holidays where she was sexually abused.

The Court of Appeal held there was no principled basis to impose vicarious liability upon the primary care providers for the sexual abuse of A during holiday placements. The Australian High Court has also expressed difficulty with the concept of vicarious liability in abuse cases (New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4).

Therefore, at present English law is likely to be resistant to the imposition of vicarious liability on local authorities or fostering agencies in relation to abuse perpetrated by foster carers.

Opposing arguments

There are still a number of counter arguments. The Sargent, X v Bedfordshire and H v Norfolk cases pre-date the case of Lister, as well as cases such as D v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151 [2004] 2 WLR 58. In addition, the reality of modern foster care is more complex than simply providing a child with a family life. Moreover the 'family life' was precisely the kind of aspiration that was found in care homes run by organisations such as Barnardos, which were split up into family groups with housefathers and housemothers.

In the UK, there are several different types of foster placements; for instance, emergency, respite, remand, short and long-term placements. Some placements simply involve support and guidance being given to natural parents to help them look after their children better. The majority of foster carers are not treated as employees of the care authority. They are entitled to allowances to cover the cost of caring for children in their home, plus extra allowances for certain items based on the needs of the child.

They also receive an income tax exemption. However, as one might expect, they are very heavily regulated. The two main statutes are the Children Act 1989 and the Care Standards Act 2000, from which come the Fostering Services Regulations 2002. These regulations govern the control and direction of foster parents and they are extremely detailed, more so it might be said than the majority of standard employment contracts. It might also be said that the degree of control exercised by the care authority is in fact akin to that of an employment contract.

There may also be a number of vicarious liability cases where the relationship between master and servant is unconventional. For example, in the case of Hawley v Luminar Leisure Ltd & Others [2006] QBD 307, the Court of Appeal held (on the facts) that such a relationship could exist between the owner of a nightclub and a doorman employed by a security company, even though the owner and the security company were two separate bodies.

At present I am not aware of any cases coming before the courts on this issue. A case brought for abuse by a foster carer might well succeed on negligence in any event. The case of Sargent was interesting in so far as it involved an injury where there was no explanation for the injuries sustained by the child while in foster care. Consequently, vicarious liability was the only route to compensation. We can only wait to see what a future court makes of the same argument.