Court ruling leaves councils open to foster care negligence claims

By Barbara Speed

| 16 January 2014

A Supreme Court ruling could leave councils liable for the neglect or abuse of children or young people living in foster care and independently owned care homes, an expert in negligence law has warned.

Children neglected by foster carers could be able to sue the council who placed them for damages as a result of a recent legal ruling. Image: Morguefile

The ruling, delivered in October but only recently published, involved the case of a 10-year-old state school pupil who nearly drowned during a swimming lesson run by a private contractor in 2000.  

The Supreme Court ruled that Essex County Council could be held liable for her injuries as they owed her a “non-delegable” duty of care even though she was not in their direct care at the time.

In previous cases of this kind, the liability would have rested with the contractor running the swimming lessons, but in this case the court ruled that as the lesson was part of the curriculum and during school hours, the school could be liable.

Malcolm Johnson, a clinical negligence solicitor with Blake Lapthorn, said that this precedent could be used in cases involving mistreatment in foster care or privately owned residential homes, as councils could be seen to have "non-delegable" duty of care towards these children even if they are cared for on a day-to-day basis by private contractors or individuals.

Currently, a child who experienced mistreatment in foster care would have a claim against their carer, while children who were in council-run children’s homes can make a claim against the local council.

Johnson says the distinction does not make sense. “The children are essentially in the same situation, so it doesn’t make sense that the claims would be different.”

In the Essex Council case, a court had previously ruled that the education authority could not be liable for damages because it had contracted out the service. But the Supreme Court ruling paves the way for the appellant, now in her 20s, to sue the council for damages.

Consequently, Johnson advised councils outsourcing core functions to check the service standards of private contractors thoroughly and make sure they hold adequate insurance.

He added: “This is a truly dramatic development in the law for local authorities. This judgment reflects the fact that public bodies now outsource so much work.

“This decision may be indicative of the direction in which the courts are moving and could also have significant implications for charities, schools and churches that provide care and support for children and adults.”

In making the Supreme Court ruling, Lord Sumption, explained that the principle would not apply to school trips or extra-curricular activities.

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