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Armes v. Nottinghamshire CC [2017] UK SC

As a 7 year old the claimant was taken into care by the defendant local authority. In 1985 she was placed by them in the care of foster parents Allison. She was physically and emotionally abused by Mrs. Allison who inflicted grossly excessive violence on her. She was then placed in foster care with the Blakely family. Mr. Blakeley sexually abused her over a period of around two years.  The child had been fostered in terms of a care order under the Child Care Act 1980.  The statutory duty was to safeguard her and promote her welfare throughout childhood.

The Supreme Court were faced with three questions:-

  1. was the local authority under a non-delegable duty of care (analogous to an employer’s obligation to provide a safe system of work) and therefore directly liable in damages for a failure to safeguard.
  2. if not, were they vicariously liable for the deliberate abuse by both sets of foster parents? i.e. was the strict liability inherent in a vicarious liability finding to be  imposed in a situation where they were not at fault?
  3. otherwise were they simply liable in the law of negligence i.e. a failure to take reasonable care in either the selection of foster parents or the supervision of those parents.

The role of foster parents was  described in the judgment as that of “home-based professionals – acting as public parents in a private household”.  The leading judgement was delivered by Lord Reed. He found no scope for a non-delegable duty, thus affirming the status quo. But in a break with authority he did impose vicarious liability, following the recent Supreme Court case of Cox v. Ministry of Defence [2016] UK SC 60.  

He rejected the floodgates argument, turning it on its head. If there were a flood of claims arising from this kind of  behaviour, then the public interest demanded to know about them. In the one dissenting judgement, Lord Hughes stated that local authorities in reality committed the children to independent carers. Any liability should be fault based.

It remains to be seen whether the floodgates will open. One can only hope that the circumstances for the Armes child were wholly exceptional.  It  is not difficult to imagine negligence based cases for lesser acts or omissions against local authorities by persons in foster care. And of course in Scotland the Limitation (Childhood Abuse) Act 2017 means that even historic cases can now be taken.

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