In 1980, the local authority in Barnsley arranged for DJ, then ten years old, to live with his maternal aunt and uncle, Mr and Mrs G, after he was abandoned by his parents. The local authority carried out a foster assessment over the next few months and, in August 1980, DJ was received into care. In 1983, the local authority assumed parental rights for DJ under the legislation in force at the time. The law was subsequently reformed by the Children Act 1989.
In 2018, DJ alleged he had been sexually assaulted by Mr G as a child and brought a claim against the local authority.
Lawyers for DJ contended there was no material difference between this case and that of Armes v Nottinghamshire County Council [2017] UKSC 60, [2017] All ER (D) 87 (Oct) where the Supreme Court held a local authority vicariously liable where torts were committed by a foster carer who was not related. They argued the situation regarding appointment, termination and local authority control were effectively the same.
The local authority countered that the case could be distinguished from Armes because the Gs acted principally in the interests of their family and the situation was not akin to employment.
Delivering the main judgment in Barnsley Metropolitan Borough Council v DJ (for and on behalf of the estate of AG) [2024] EWCA Civ 841, [2024] All ER (D) 108 (Jul) however, Lady Carr, the Lady Chief Justice, said: ‘In our view, after 1 August 1980, the preponderance of factors points clearly to the relationship between the local authority and the Gs being akin to employment.’
The Lady Chief Justice added: ‘We are not laying down a general rule that a local authority will always be vicariously liable for torts committed by foster carers who are related to the child. Furthermore, in allowing this appeal, we do not intend to give any indication about the circumstances in which vicarious liability might arise under the present legislation and regulatory regime.’
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