Foster care is typically regarded as a place of safety where vulnerable young people can have the support and care they need, while feeling protected and secure.
For local authorities, foster parents have traditionally played a vital role in providing children with the comfort of a ‘proper’ home, nurturing them in a time of need.
There’s no doubt foster care is a vital component in tackling the ongoing problem of looking after those children, but the case of one teenager, whose time in foster care in England was marred by abuse and sexual assault, is challenging the basis of the professional relationship between local authorities and carers and has again considered the circumstances in which a relationship akin to employment exists such that “employers” will be held financially responsible for the inappropriate actions of people carrying out work on their behalf.
Earlier this month a Nottingham woman who was abused as a child by foster parents won her Supreme Court battle against the local authority responsible at the time for her care.
In what’s been described as a landmark ruling, the court decided Nottinghamshire County Council was “vicariously liable” for the abuse suffered by Natasha Armes when it placed her with two separate foster carers in the 1980s.
Her claim against the local authority was initially rejected by both the High Court and Court of Appeal. However in the Supreme Court, judges ruled 4:1 that the local authority could be held vicariously liable for the abuse, although they were not negligent in the selection or supervision of foster carers, nor otherwise at fault.
Prior to this ruling, local authorities were not held vicariously liable for the actions of foster carers as it has been argued that they were not typical employees and instead foster carers were running their own, independent businesses.
According to the Supreme Court, however, that’s no longer the case. But how does this English ruling affect Scotland?
Vicarious liability typically places responsibility for an employee’s actions – or inaction – with their employer. However, this concept has, in recent years, developed beyond traditional employment relationships and has also, south of the Border, expanded to include activities by someone in a position akin to employment such as an office holder or a volunteer, subject to the activity in question having a ‘close connection’ to the employment.
Suffice to say that, although not binding on the Scottish courts, the recent Supreme Court decision, and other developments in the law of vicarious liability south of the Border, would be considered persuasive should a similar case now come before a Scottish judge or sheriff.
The impact here could be significant, coming as the spotlight turns to non-recent abuse cases.
Last month the Limitation (Childhood Abuse) (Scotland) Act came into force, bringing to an end the three year limitation rule for civil compensation claims in cases of abuse to under 18s resulting in personal injury. It opened the door to actions related to incidents dating back decades.
Organisations are at greater risk than ever before of facing litigation for acts of abuse committed by others, decades ago. In addition, the range of people for whom an organisation may be liable may be wider than once thought.
While the legal barriers fall and a path to justice becomes accessible for more victims and survivors, organisations and institutions need to consider what may have happened in their past and how they can not only ensure it does not happen again but also make adequate recompense.
Frank Hughes is a partner with BLM