Precedents Cited

The judgment extensively references precedents from both Scottish and English law to navigate the complexities of vicarious liability in kinship care settings. Key cases include:

• Various Claimants v Barclays Bank plc [2020] AC 973: Established a two-stage test for vicarious liability, focusing on the nature of the relationship and the connection between the wrongful act and that relationship.
• Armes v Nottinghamshire County Council [2018] AC 355: Addressed whether foster carers are in a relationship akin to employment, setting a benchmark for evaluating vicarious liability in kinship care.
• DJ v Barnsley Metropolitan Borough Council [2023] EWHC 1815 (KB): Highlighted differences between foster parents and kinship carers, particularly regarding recruitment and training.
• CK v South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191: Discussed legal causation and the concept of intervening acts breaking the chain of liability.
• Harris v Perry [2009] 1 WLR 19: Clarified the extent of a duty of care in supervisory roles, emphasizing that constant surveillance is not required.

These precedents influenced the court's approach in determining whether Glasgow City Council could be held liable for the actions of the carers.

Legal Reasoning

Lord Weir applied the two-stage test from Various Claimants v Barclays Bank plc to assess vicarious liability:

• Stage 1: Determine if the relationship between the council and the carers is akin to employment.
• Stage 2: Assess if there is a sufficiently proximate connection between the relationship and the wrongful act.

The court found that the relationship between the council and Agnes Kerr did not resemble that of an employer and employee, primarily because Mrs. Kerr was a family member rather than a recruited and trained foster carer. Similarly, Kayleigh Kerr's role lacked the formal structure and oversight typically associated with employment. Consequently, without a clear employment-like relationship, vicarious liability was not automatically applicable.

Furthermore, regarding the scope of duty of care, the court acknowledged that while the council had a responsibility to assess and monitor kinship placements, the exact nature of this duty was contingent upon the specifics of the placement agreement, which were not fully delineated in the pleadings.

On legal causation, the court noted that the direct actions of Kayleigh Kerr could be seen as an intervening act, potentially breaking the chain of liability. However, without detailed evidence on the circumstances leading to the child's supervision, a definitive conclusion could not be reached at this stage.

Impact

This judgment has several potential implications for future cases involving kinship care:

• Clarification of Vicarious Liability: The case underscores the stringent criteria required to establish vicarious liability for local authorities in kinship care settings, emphasizing the necessity of an employment-like relationship.
• Duty of Care Scope: It highlights the importance of clearly defining the scope and terms of kinship care placements to ascertain the extent of the local authority's duty of care.
• Evidence Requirements: The decision emphasizes the need for comprehensive evidence regarding the placement arrangements and the roles of individual carers to determine liability effectively.
• Policy Considerations: The judgment reflects ongoing policy debates about the balance between supporting kinship carers and ensuring adequate protections for children, potentially influencing future legislative reforms.

Overall, the case sets a precedent for rigorous scrutiny of kinship care arrangements and the responsibilities of local authorities, potentially leading to more robust safeguards for children in such placements.