On 18 July 2023, the High Court handed down its judgment in DJ v Barnsley Metropolitan Borough Council [2023] EWHC 1815 providing clarification of the position regarding claims brought in vicarious liability against family foster placements.
The case concerned Stage 1 of the two-stage test for the imposition of vicarious liability, i.e. whether the relationship between the defendant and the tortfeasor was one of employment or “akin to employment”.
Since the judgment in Armes v Nottingham County Council [2017] UKSC 60, it has been established that vicarious liability extended to foster parents, despite foster parents not being employees of the local authority. However, the position was less clear-cut in the context of children placed with family.
In January 1980, aged nine and following the breakdown of his parents’ marriage, the claimant was placed by Barnsley MBC in voluntary care with Mr and Mrs G, who were the claimant’s aunt and uncle, with the wife being the claimant’s mother’s sister. Mr and Mrs G became the claimant’s foster parents and the claimant remained with the family for many years. It is relevant in this case that, prior to Christmas 1979, the claimant had never met AG or his wife, and didn’t know they existed.
During the placement, the claimant alleges that he was sexually abused by his uncle AG. AG was also in the proceedings as the Part 20 defendant.
The claimant alleged that the defendant was vicariously liable for the actions of AG.
On 13 August 2021, a trial of the preliminary issue of whether vicarious liability could apply took place. The claimant relied on Armes in support of his assertion that Barnsley MBC was vicariously liable for the tortious acts of AG. The defendant argued that Armes did not apply in these circumstances as they were relatives of the claimant. Instead, the defendant argued that similar conclusions could be drawn as those drawn when children in care are placed in the care of their own family. This circumstance was addressed at paragraph 71 of Armes. The claimant’s claim was struck out by Mr Recorder Myerson KC on the basis that the relationship between the defendant and AG was not akin to employment and, therefore, vicarious liability could not apply. The claimant appealed the Order to the High Court where it was heard by Lambert J.
Lambert J dismissed the claimant’s appeal.
Lambert J observed that in potential “akin to employment” cases such as this, the court should consider those “features of the relationship” which are similar to, or different from, a contract of employment. These may include: “whether the work is being paid for in money or in kind; how integral to the organisation was the work carried on by the tortfeasor; the extent of the defendant’s control over the tortfeasor in carrying out the work; whether the work is being carried out for the defendant’s benefit or in furtherance of the aims of the organisation; what the situation is with regard to appointment and termination and whether there is a hierarchy of seniority into which the relevant role fits”. She added that in difficult cases it is necessary to consider the balance of the policy reasons underpinning the imposition of vicarious liability. These are the so-called incidents outlined by Lord Phillips in The Catholic Child Welfare Society and Others v Various Claimants and The Institute of the Brothers of the Christian School and others [2012] UKSC 56.
In this case, some features of the relationship suggested it was “akin to employment”. These included the fact that Mr and Mrs G were both interviewed for the role, that they were monitored and supervised and that there were regular reviews of the claimant’s welfare, health, conduct, appearance and progress. However, other features pointed in the opposite direction, such as the fact that they were “not recruited for the role … or selected by the local authority” and that they were not “trained for the role”.
Consequently, this was one of those difficult cases where it was necessary to consider the incidents referred to in the Christian Brothers case, in particular, whether Mr and Mrs G’s care for the claimant “was integral to the business of the defendant or whether it was sufficiently distinct from the activity of the defendant to avoid the imposition of vicarious liability”. Like the Recorder, Lambert J considered that there was a sufficiently sharp line between what Mr and Mrs G were doing and the activity and business of the defendant. In her view, the most compelling factor was the context in which they came to be involved. Mr and Mrs G took the claimant in because other family members were unable or unwilling to do so; not only that there was a clear inference that they would not have done so “had he not been their nephew”. As such, Mr and Mrs G “were intending to and, in fact, did, raise their own nephew because he was their nephew and that their purpose was to raise him as part of the family of which he was a member and in the interests of the family, including the claimant”. Other evidence included the fact that Mr and Mrs G “used family photographs to remind the claimant that he was with his family and to demonstrate family links in order to settle him” and that they appeared “to be encouraging of the claimant maintaining contact with his wider family”.
Although Lambert J did not accept all the Recorder’s findings, none fatally undermined his conclusion “that Mr and Mrs G were engaged in an activity which was more aligned to that of parents raising their own child and that the activity was sufficiently distinct from that of the local authority exercising its statutory duty”. As such the defendant could not be vicariously liable.
Although each case turns on its facts, the judgment strongly indicates that family fostering arrangements in which a child is raised as a family member will not satisfy Stage 1 of the vicarious liability test. Consequently, the judgment further limits the expansion of vicarious liability, which at one time was said to be ‘on the move’.
Of course, this does not prevent claims potentially being brought in negligence. Local authorities may, therefore, face such claims in negligence, although these will be more difficult to prove as there is no automatic liability for the tortious act, as there would be in vicarious liability. Instead, claimants will have to prove a breach of a duty of care owed to them by the local authority. This will require the claimant to prove that the local authority knew or ought to have known about the wrongful act. Although such claims may be presented, and at times may be successful, this is a welcome limitation to the expansion of vicarious liability into a family situation which is very far removed from an employment relationship.
This case is particularly relevant in the context of the ‘Stable Homes, Built on Love’ report which was published in February this year. This report recommends an expansion of kinship carers, and encourages placement with family members where possible, with £9 million to be invested into developing such placements. Placements with family members are, therefore, likely to increase and this judgment provides some welcome clarity as to the legal position regarding such placements.
For more information, please contact:
Anna Churchill - Senior File Handler
Email: achurchill@keoghs.co.uk
Daniel Tyler - Associate
Email: dtyler@keoghs.co.uk