Council Vicariously Liable for Foster Care Historic Sexual Abuse
Allegations and convictions for historic sexual abuse dominate our headlines. From the allegations made against Harvey Weinstein in recent weeks, to the Savile inquiry, to the fraught Independent Inquiry into Child Sexual Abuse in England and Wales, historic sexual abuse claims, and how we deal with them, is a pressing concern for our society.
At Tuckers, we have specialist expertise in defending those who are accused of causing harm to children. We understand that historic sexual abuse cases can be incredibly challenging for everyone involved. In particular, it can be difficult to analyse and assess evidence and attribute liability. That is why if you are under investigation for historic sexual abuse, you should be represented by criminal defence solicitors with extensive experience dealing with these cases.
Historic sexual abuse is an unsettled area of law, which is constantly developing. At Tuckers we were, therefore, very interested in last month’s UK Supreme Court judgment concerning a local authority’s liability for abuse that occurred in foster care.
The Case – Armes v Nottinghamshire County Council
Natasha Armes is a woman who was in care in the 1980s. She is now 40 years old but as a child she was physically, emotionally and sexually abused by foster carers. She was in the care of Nottinghamshire County Council between the ages of 7 and 18. She had two foster care placements where abuse occurred. Between 1985 and 1986, she experienced physical and emotional abuse and between 1987 and 1988 she was sexually abused.
Natasha Armes took her case originally to the High Court and the Court of Appeal – where she lost the case. The question then came before the Supreme Court, which had to decide whether the Council could be held liable for the actions of the foster carers.
It was argued that the local authority could be held responsible on two grounds:
First, that it had a duty, which it could not delegate, to ensure that reasonable care is taken for the safety of children in care when they are with foster parents. This argument was rejected, as it was held that this would put “too demanding a responsibility” on the local authority, and would create additional complications within the care system. For example, if a child in care was spending time with their parents or grandparents, the local authority could be held responsible for any lack of care shown by these relatives. The concern of the local authority to avoid this liability may mean that it is less willing to let children stay with these relatives temporarily, which in turn could conflict with the duty of the local authority to promote the welfare of the child.
The second argument made was that the local authority was vicariously liable for the actions of the foster carers. This is a principal that is often applied in relationships between employers and employees. The employer may not have committed the wrong himself or herself, but they are responsible for the actions of their staff.
It was held that the foster carers were not carrying out an independent business on their own – they were recruited, selected and trained by the local authority and the local authority also supervised the fostering. It was therefore found that the abuse was committed while the foster parents were carrying out an activity for the benefit of the local authority, and a clear line between the foster parents and the local authority could be drawn.
It was also held that the placement of the children with foster parents created a risk, which made the children particularly vulnerable to abuse. The local authority had a significant degree of control over the foster parents. The local authority could inspect, supervise and remove.
It was also significant that most foster carers would not be able to pay a substantial award of damages. Councils, on the other hand, would be in a much stronger position to compensate victims.
On this basis, it was ultimately held that Nottinghamshire County Council in this instance, and local authorities more generally, could be held liable for abuse carried out by foster carers. Natasha Armes is therefore entitled to damages, which are yet to be determined.
The Impact of the Case
The importance of this decision cannot be overstated. Before this case, local authorities were only liable if they had actually been negligent, for example, by not properly supervising the foster parents. This was not the case here. Now, following this judgment, Councils can be responsible for wrongdoing by foster carers the same way that they can be liable for actions of directly employed staff – such as social workers. In the past, councils could be responsible for abuse in a children’s home, but not in foster care. This has now changed.
If foster care abuse has been widespread, many Councils across the country must be prepared to meet the financial consequences of these actions head on. It is likely that there will be many more cases in this vein. If you are a carer or Council accused of harm, we can provide expert advice and representation.
Expert Historic Sexual Abuse Legal Advice in Manchester
At Tuckers Solicitors, we are experts in all aspects of this area of law. In cases such as these, it is important that you instruct lawyers who have an awareness of the issues at play and the complexity of historic sexual abuse cases.
We offer a 24 hour, 7 day a week service. Our Special Casework Team, headed up by Richard Egan, are ready to deliver expert legal advice and assistance.
We understand that it is important in these cases that you have access to high quality legal advice from the very outset. Tuckers can provide this.