In this blog, Megan Griffiths of 12KBW considers the Court of Appeal’s decision in DJ v Barnsley on the first stage of the vicarious liability test, relevant to employers’ liability claims beyond those against local authorities for abuse and neglect in care.

In recent years the appellate courts have frequently been asked to determine the scope of a local authority’s liability for neglect or abuse in the home. They have mostly been asked to clarify and consider in what circumstances a local authority assumes responsibility for a child who is neglected or abused by their biological parents i.e. in what circumstances they owe a duty to protect the child from harm. They have answered with a clear narrowing of the circumstances in which an assumption of responsibility can arise without a care order in place, almost to a vanishing point.

The appellate courts have also been asked, to a lesser extent, to consider a local authority’s vicarious liability for neglect or abuse in a foster placement. It has been settled since Armes [2017] UKSC 60 that a local authority is vicariously liable for neglect or abuse in a foster placement where the foster parent is not related to C, colloquially referred to as a commercial foster placement. But Armes identified and declined to resolve a grey zone: what about a foster placement with someone who is related to C, for example their grandmother, or their uncle?

DJ v Barnsley

This was the issue which arose in DJ [2024] EWCA Civ 841. At first instance the claim was dismissed on the basis that D was not vicariously liable for familial foster parents. This was upheld on appeal to the High Court. However, on appeal to the Court of Appeal, in a judgment handed down on Monday, this was reversed.

In DJ, C was a child who spent his early years in the care of his biological parents. When he was around 9 years old, they divorced and both effectively abandoned him. In January 1980 D, the local authority, placed him with his maternal aunt and uncle under an informal and voluntary arrangement. By August 1980 D had assessed and approved them as foster parents and C became a child “in care” meaning that D had a positive statutory duty to provide him with care, and did so through the foster placement with his aunt and uncle. His aunt and uncle were only approached by D to become his foster parents because of their familial relationship with him and they were only willing to be foster parents for him: that is, they were not interested in fostering a child they were not related to. In 1983 D obtained “parental rights” for C, the predecessor of the concept of “parental responsibility” which was introduced by the later Children Act 1989. C lived with his aunt and uncle as his foster parents until he became an adult and for a period of time after that. C’s case was that he had been sexually abused by his uncle throughout the time that he lived with him, so from January 1980 onwards.

The issue on vicarious liability at first instance, in the High Court and the Court of Appeal was whether stage 1 of the test was met: whether the relationship between D and the foster parents was of or akin to employment. It was considered in light of Armes in which the Supreme Court ruled that local authorities were vicariously liable for commercial foster parents but left familial foster parents as a grey zone.

In Armes the question of vicarious liability for familial foster parents was raised by Lord Hughes in his dissenting judgment and consequently commented upon by Lord Reed on behalf of the majority.

In his dissenting judgment Lord Hughes referred to the growing and endorsed practice of placing children with family members where possible including as foster parents. He considered that the “reality” was “that any member of the extended family, or close friend, who undertakes the care of children in need, is doing so in the interests of the family, not as part of a local authority enterprise” [87 with emphasis added]. His view was that this pointed against vicarious liability for the deliberate and abusive actions of foster parents.

In his majority judgment Lord Reed acknowledged Lord Hughes’ dissenting views. He made clear that D would not be vicariously liable if the abuse was perpetrated by C’s parents even in the course of a placement, because “they would have been carrying on an activity (raising their own child) which was much more clearly distinguishable from, and independent of, the child care services carried on by the local authority than the care of unrelated children by foster parents recruited for that purpose” [71]. He considered it inappropriate to make a ruling on familial foster parents which was not the subject of that appeal and would have required a detailed analysis, but said “it is sufficient to say that, for the reasons explained by Lord Hughes, the court would not be likely to be readily persuaded that the imposition on a local authority of vicarious liability for torts committed by parents, or perhaps other family members, was justified” [72 with emphasis added].

The key points from the Court of Appeal’s decision in DJ, allowing the appeal to find the local authority was vicariously liable for abuse perpetrated by C’s uncle foster parent, were:

  • C’s placement could be broken down into three. In the first period (informal temporary arrangement) D had not assumed responsibility so there was no vicarious liability. This is in line with the narrowed scope for an assumption of responsibility without a care order or parental responsibility (or equivalent) being transferred to a D. But in the second period (foster arrangement whilst parental rights remained with C’s parents) and the third period (foster arrangement with parental rights transferred to D), C was a child “in care”, D had statutory obligations to provide him with care, D did so by the foster placement, the foster placement was integral to D’s business activities, and so D was vicariously liable for abuse perpetrated in that foster placement [58-63].
  • It was relevant that D recruited and selected the foster parents to be C’s foster parents. It was true that they had only done so for C and not any other child in need of fostering, but that was itself not relevant, because C was in fact a child under D’s care who needed fostering [60].
  • It was relevant that it was open to D to conclude that they were not suitable to be foster parents: D was not simply ratifying a pre-existing arrangement [60].
  • It was relevant that D regularly monitored and supervised the foster placement and C’s health, welfare and progress [61].
  • It was irrelevant that the foster parents were only motivated to foster because of the fact that C was their nephew i.e. that they were not interested in fostering unrelated children. The relationship between C and the foster parents was not the central relationship for determining stage 1 of the vicarious liability test [64]. This was a starkly different approach to the courts’ below who saw the motive as a significant factor against vicarious liability.
  • It was irrelevant that in this case D had not provided the foster parents with training: they “seemingly took the view that in the circumstances they did not require any specific training” [61]. The implication seems to be that D took a positive decision not to provide training, and that if D had considered it necessary it would have provided it.

Comment

This is a significant decision. It effectively places familial foster placements on all fours with non-familial foster placements. It will affect any and all existing claims arising from abuse or neglect by familial foster parents, sexual or otherwise, and which had poor prospects of success prior to the Court of Appeal’s decision. Despite the Court of Appeal’s attempts at [69] to limit the breadth of their decision by stating that it was fact sensitive, only considered the law in force at the relevant time (pre Children Act 1989) and that they were “not laying down a general rule”, this author’s view is that they have in practice laid down a general rule. The key facts are likely to be common to almost all cases with familial foster parents (for example, all familial foster parents will have been assessed and approved by D, the placement will be monitored and reviewed by D), and the thrust of the relevant law was transposed into the Children Act 1989.

The decision is also important for stage 1 of the vicarious liability test more generally. It adds to the bank of decisions on how stage 1 is to be applied. It is notable that the Court of Appeal did not refer to the presence, absence or nature of payments at all in reaching its’ conclusion that stage 1 was met. The effect is to strengthen the potential for vicarious liability in cases with no payments or ad hoc payments from a D to a tortfeasor.

We will watch with interest to see if permission to appeal to the Supreme Court is sought or granted.

Megan Griffiths practices in personal injury and clinical negligence with a particular specialism in claims arising from abuse in care and other settings.

The judgment in Armes v Nottinghamshire County Council [2017] UKSC 60 is here.
The judgment in DJ v Barnsley Metropolitan Borough Council [2023] EWHC 1815 (KB) is here.
The judgment in DJ v Barnsley Metropolitan Borough Council [2024] EWCA Civ 841 is here.