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Armes v Nottinghamshire County Council
Factual and Procedural Background
The Claimant, who had been committed to the care of the Defendant local authority in 1985 pursuant to successive statutory care orders, was placed with two sets of foster parents (Foster Parents A between 1985-1986 and Foster Parents B between 1987-1988). During those placements she suffered serious physical, emotional and sexual abuse in the foster homes. It was accepted that the Defendant had exercised reasonable care in selecting and supervising the foster parents.
The Claimant issued proceedings contending that the Defendant was liable for the foster parents’ torts on two alternative bases: (1) breach of a non-delegable duty of care and (2) vicarious liability. The High Court (Judge Males) rejected both bases but disapplied the limitation period. The Court of Appeal affirmed that decision. The Claimant appealed to the Supreme Court.
Legal Issues Presented
- Whether the Defendant owed a non-delegable duty of care to ensure the Claimant’s safety while she was in foster care, rendering the Defendant directly liable for the foster parents’ abuse.
- Whether the Defendant was vicariously liable for the intentional torts committed by the foster parents against the Claimant.
Arguments of the Parties
Claimant's Arguments
- The statutory relationship created by the care order imposed a personal, non-delegable duty on the Defendant analogous to that owed by hospitals and schools in Woodland v Essex County Council.
- Even if no non-delegable duty existed, the relationship between the Defendant and the foster parents was “akin to employment” on the criteria in Various Claimants v Catholic Child Welfare Society, justifying vicarious liability.
Defendant's Arguments
- The Defendant’s statutory role was to arrange foster care, not personally to provide day-to-day parenting; the duty was therefore delegable.
- The foster parents acted independently, were not under the Defendant’s detailed control and did not perform the Defendant’s “business activity”; consequently the relationship was not analogous to employment.
- Imposing strict liability would be unfair, financially onerous and might discourage the use of foster placements that are generally in children’s best interests.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Various Claimants v Catholic Child Welfare Society (“Christian Brothers”) [2012] UKSC 56 | Five-factor test for when a relationship is “akin to employment” for vicarious liability | Primary framework for analysing whether foster parents’ relationship with the Defendant could attract vicarious liability |
| Cox v Ministry of Justice [2016] UKSC 10 | Clarified and refined the five factors; emphasised integration and risk creation | Used to reassess the foster-care relationship and to downplay the necessity of close control |
| Woodland v Essex County Council [2013] UKSC 66 | Criteria for imposing a non-delegable duty of care | High Court found all five criteria present; Supreme Court agreed criteria relevant but held overall duty too broad here |
| Caparo Industries plc v Dickman [1990] 2 AC 605 | “Fair, just and reasonable” test | Lower courts treated this as a separate stage for non-delegable duty; Supreme Court held separate stage unnecessary |
| KLB v British Columbia [2003] 2 SCR 403 | Canadian authority denying vicarious liability for foster parents’ abuse | Relied on by lower courts; Supreme Court distinguished it as based on different policy emphasis |
| State of New South Wales v Lepore [2003] HCA 4 | Questioned whether non-delegable duty extends to intentional torts | Highlighted in argument but Supreme Court rejected restriction to negligence only |
| S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150 | Earlier English decision rejecting vicarious liability for foster parents | Supreme Court regarded reasoning (agency test) as outdated |
| S v Attorney General (NZ) [2003] 3 NZLR 450 | New Zealand authority imposing vicarious liability for foster parents’ abuse | Cited as policy support for imposing liability |
| Myton v Woods (1980) 79 LGR 28 | Statutory duty versus duty to arrange services | Illustrated that only duties personally incumbent on a defendant can be non-delegable |
| Carmarthenshire CC v Lewis [1955] AC 549 | Standard of reasonable care for those in loco parentis | Supported view that parents owe ordinary, not strict, duty of care |
| Harris v Perry [2008] EWCA Civ 907 | Reasonable-parent standard in family settings | Used to contrast ordinary parental duty with proposed strict liability |
| Surtees v Royal Borough of Kingston upon Thames [1991] 2 FLR 559 | Caution against imposing exacting negligence standards within families | Referenced in dissent to caution against expanding strict liability |
| Barrett v Enfield LBC [2001] 2 AC 550 | Local authority responsibilities and policy considerations | Cited in both majority and dissent regarding parental analogy |
| Morris v CW Martin & Sons Ltd [1966] 1 QB 716 | Non-delegable duty can be breached by deliberate wrongdoing | Used to rebut suggestion that only negligence could breach such a duty |
| Port Swettenham Authority v TW Wu & Co [1979] AC 580 | Non-delegable duty extends to deliberate wrongs; criticised Cheshire v Bailey | Supported majority rejection of Defendant’s argument on intentional torts |
| Cheshire v Bailey [1905] 1 KB 237 | Earlier view limiting liability where servant joins thieves | Cited only to show it was wrong in light of later authority |
| Lister v Hesley Hall Ltd [2001] UKHL 22 | Scope of vicarious liability for child abuse in residential settings | Illustrated that family-like settings can attract vicarious liability |
| Bazley v Curry [1999] 2 SCR 534 | Risk-creation rationale for vicarious liability | Discussed in comparison with UK approach; deterrence less central in UK law |
| E v English Province of Our Lady of Charity [2013] QB 722 | Vicarious liability where priest–bishop relationship lacked close control | Example of liability without micro-management, countering Defendant’s control argument |
| Turberville v Stampe (1697) 1 Ld Raym 264 | Historical basis for employer liability via deemed authorisation | Cited as part of doctrinal lineage of vicarious liability |
| Bartonshill Coal Co v McGuire (1858) 3 Macq 300 | Early statement of employer responsibility | Quoted in explanation of integration rationale |
| Duncan v Findlater (1839) 6 Cl & Fin 894 | Integral-activity justification | Referenced in historical survey of the doctrine |
| Broom v Morgan [1953] 1 QB 597 | Cost-spreading justification for vicarious liability | Cited within discussion of historical rationales |
Court's Reasoning and Analysis
Non-delegable duty: Judge Reed (for the majority) held that although the five Woodland criteria were formally satisfied, the statutory scheme indicated that the Defendant’s duty was to arrange, supervise and, if necessary, terminate foster placements—not personally to provide day-to-day care. Extending a strict, guarantee-type duty to the Defendant would be “too broad and too demanding,” risk conflicting with statutory objectives favouring family placements and would not accord with parental analogies recognised by section 10 of the governing statute. Accordingly, no non-delegable duty arose.
Vicarious liability: Applying Christian Brothers as refined in Cox, the majority assessed five factors:
- Integration & Benefit: Foster parents delivered core childcare services integral to the Defendant’s statutory enterprise.
- Risk Creation: Placement decisions created a relationship of authority and trust that inherently carried a risk of abuse.
- Control: While daily routines were autonomous, the Defendant exercised significant powers of approval, inspection, supervision and removal.
- Ability to Compensate: Foster parents typically lacked resources or insurance; the Defendant possessed both.
Balancing these factors, the majority concluded it was fair, just and reasonable to impose vicarious liability. They rejected the Court of Appeal’s focus on the absence of micro-control and dismissed deterrence-based objections advanced from Canadian authority. Judge Hughes dissented, emphasising the independence of foster families, potential chilling effects on family placements and the undesirability of importing strict liability into family life.
Holding and Implications
HOLDING: Appeal ALLOWED. The Defendant local authority is vicariously liable for the torts committed by the foster parents; no non-delegable duty was found.
Implications: The decision establishes that, under historical statutory schemes, UK local authorities can be vicariously liable for intentional abuse perpetrated by foster parents, even absent negligence in selection or supervision. While confined to the statutory and practical context examined, the ruling potentially broadens compensation avenues for survivors of foster-care abuse and signals that public bodies may bear strict liability where foster care is integral to discharging statutory child-care functions. No new principle concerning non-delegable duties was created.
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