Factual and Procedural Background
The case concerns a claim against a local authority for vicarious liability arising from torts committed by foster carers who were relatives of the child. In 1980, the local authority arranged for the Plaintiff, then aged ten and abandoned by his parents, to live with his maternal aunt and uncle ("the Foster Carers"). After a fostering assessment, the Foster Carers were approved and the Plaintiff was received into care by the local authority. Parental rights were assumed by the local authority in 1983. The Plaintiff lived with the Foster Carers until his early twenties.
Decades later, in 2018, the Plaintiff alleged sexual assault by the Foster Carer and brought a claim against the local authority asserting vicarious liability. The issue was first heard as a preliminary matter, with the local authority prevailing at first instance and on appeal. The present appeal challenges those decisions.
Legal Issues Presented
- Whether a local authority can be vicariously liable for torts committed against a child by a foster carer who is a relative of the child.
- The nature of the relationship between the local authority and foster carers related to the child and whether it is "akin to employment" for vicarious liability purposes.
- The application of the principles established in Armes v Nottinghamshire County Council and subsequent case law to foster carers who are relatives.
Arguments of the Parties
Appellant's Arguments
- The judge erred in stating the Foster Carers were not recruited and selected by the local authority; evidence showed they applied and underwent a full fostering assessment.
- Excessive weight was given to the absence of special training, which was a local authority decision based on circumstances.
- The judge wrongly found the Foster Carers were carrying on an activity distinct from the local authority’s statutory obligations, overlooking that the local authority made decisions about the Plaintiff's placement.
- The judge and recorder improperly gave determinative weight to the Foster Carers’ motives for fostering, which is irrelevant for vicarious liability.
- The judge incorrectly focused on the relationship between the Plaintiff and the Foster Carers rather than the relationship between the Foster Carers and the local authority.
- All relevant features of a relationship akin to employment were present, making the situation materially indistinguishable from Armes.
Respondent's Arguments
- The case was rightly decided as doubtful on the "akin to employment" issue, justifying consideration of policy reasons.
- The Foster Carers acted principally in the interests of their family, not as part of the local authority's enterprise, distinguishing this case from Armes.
- The local authority had minimal involvement in the initial placement, which was a family arrangement facilitated but not chosen by the authority.
- Motive matters because the Foster Carers were caring for their nephew, not acting as employees or quasi-employees of the local authority.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Armes v Nottinghamshire County Council [2017] UKSC 60 |
Established that a local authority can be vicariously liable for torts committed by unrelated foster carers; left open the question regarding related carers. |
Used as the foundational case to assess whether vicarious liability applies to related foster carers; distinguished on facts. |
| Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 |
Modern tests for vicarious liability, including the "akin to employment" test and policy considerations. |
Guided the court’s analysis of the relationship and policy factors relevant to vicarious liability. |
| Cox v Ministry of Justice [2016] UKSC 10 |
Clarified the rationale for vicarious liability beyond employment relationships, focusing on integration and benefit to defendant. |
Applied to assess whether the Foster Carers’ activities were integral to the local authority’s business. |
| Various Claimants v Barclays Bank plc [2020] UKSC 13 |
Further development of the "akin to employment" test and policy considerations. |
Cited as part of the evolving law on vicarious liability. |
| BXB v Trustees of the Barry Congregation of Jehovah's Witnesses [2023] UKSC 15 |
Comprehensive summary of modern vicarious liability principles and policy considerations. |
Guided the court’s framework for analysis; cited by Lambert J on appeal. |
| MXX v A Secondary School [2023] EWCA Civ 996 |
Confirmed that relationships akin to employment can arise outside formal employment and that motive is irrelevant. |
Supported the court’s rejection of motive as relevant to the "akin to employment" test. |
Court's Reasoning and Analysis
The court analysed the relationship between the local authority and the Foster Carers over three distinct phases of the Plaintiff’s residence. Initially, before the Plaintiff was formally "in care," the placement was informal and facilitated by the local authority under a duty to promote child welfare, but no statutory care obligations or fostering arrangements existed. The court concluded the relationship was not akin to employment during this phase.
From 1 August 1980, when the Plaintiff was formally received into care and the Foster Carers were approved following assessment, the local authority owed statutory duties to the Plaintiff and discharged them through the Foster Carers. The court found that the Foster Carers were recruited and selected by the local authority specifically to care for the Plaintiff, even if only for him and not as general foster carers. The local authority supervised and monitored the placement, paid allowances, and had control over contact arrangements.
Despite the Foster Carers’ familial relationship with the Plaintiff and absence of special training, the court held these factors were not determinative. Motive was deemed irrelevant to the "akin to employment" test. The relationship was integral to the local authority’s statutory child care functions and bore the hallmarks of a relationship akin to employment.
The court rejected the lower courts’ views that the Foster Carers were acting independently or as a family unit separate from the local authority’s business. It emphasized that the relevant relationships for vicarious liability were those between the local authority and the Plaintiff, and between the local authority and the Foster Carers, not the familial relationship between the Plaintiff and the Foster Carers.
Applying the five policy factors identified in Christian Brothers, the court found all were satisfied, supporting the imposition of vicarious liability. The court distinguished this case from placements by parents or other family members not approved or recruited by the local authority.
The court limited its decision to the specific facts and statutory regime in place at the time, noting it did not address the modern legal framework post-Children Act 1989.
Holding and Implications
The court allowed the appeal and set aside the order dismissing the Plaintiff's claim, holding that the local authority was vicariously liable for torts committed by the Foster Carers who were relatives of the Plaintiff after he was formally received into care and the carers approved.
The decision clarifies that vicarious liability can arise in fostering arrangements involving relatives, depending on the statutory context and nature of the relationship with the local authority. However, the court expressly limited the ruling to the facts and legal regime applicable at the time and did not establish a general rule applicable under current law. No new precedent was laid down for cases under the present statutory framework.