The issue of vicarious liability for foster parents in cases where there have been allegations of sexual abuse remains a fertile ground for litigation with another judgment handed down this week, whilst the Supreme Court is likely to hear the appeal in NA in early 2017.
In VN & SN v London Borough of Brent, VK & AK  EWHC 936 (QB). the claimants alleged that they were physically, sexually and emotionally abused by their foster carers.
It was contended on behalf of the claimants that the defendant local authority was:
- Negligent in its approval and supervision of the foster carers and placement of the claimants; and
- Strictly liable on the basis of vicarious liability and a non delegable duty.
Sir Robert Nelson found that the claimants had not established their allegations of abuse. However in obiter comments he noted that had abuse been established he would have been bound by the NA decision and thus have rejected the claimants’ arguments on both vicarious liability and non delegable duty. He considered that the claimants attempt to distinguish their claim from that in NA did not succeed because “the Children Act 1989 and subsequent regulations did not affect the heart of the decision in NA.”
It is clear that vulnerable children when placed in foster care should be safe and any abusive behaviour can only be condemned. However extending vicarious liability or the doctrine of a non-delegable duty to cover foster parents seems to be an extension too far because of the wider implications that would have for the ability of foster parents to provide a family environment to the children in their care. It is clear however that this will continue to be a subject for consideration by the courts and in due course possibly by the IICSA.
Amy Clarke, associate