Abuse in Foster Care and Potential Liability for Local Authorities: Can liability be imposed through vicarious liability or a non-delegable duty?

Abstract

In NA v Nottinghamshire County Council [2015] EWCA Civ 1139 the claimant attempted to sue the Nottinghamshire local authority through vicarious liability or alternatively non-delegable duties for the abuse she suffered at the hands of foster parents in two separate homes that she was placed in. This paper analyses the NA decision which rejected local authority liability under either claim. The article attempts to delineate an understanding of both doctrines, which remain contested within the judicial and academic communities. Through this understanding, and analysis of case law attempting to set down methodology and form within both doctrines, the article will show that recent decisions in both areas have followed instrumentalist reasoning rather than being based on principle. In an age where claims of abuse within foster care are likely to become more prevalent these questions need to be analysed and considered carefully in order to preserve the integrity of both private law doctrines, as well as to provide reasonable and justifiable precedent for future claims and claimants. The author argues that the better theory is that liability should have been imposed on the local authority under the non-delegable duty claim which works both in principle and in policy.