The court was keen to highlight that they were not establishing a blanket rule for vicarious liability cases involving relatives.
In summary, DJ, aged ten, was abandoned by his parents in 1980 and went to live with his maternal aunt and uncle, Mr and Mrs G. In 2018 DJ alleged that he had been sexually assaulted by Mr G every other week between 1980 and 1986 and sought compensation from the local authority (LA) asserting that the LA was vicariously liable for Mr G’s acts. Mr G denied the allegations.
The case was decided against DJ at first instance and then again on appeal. However, his second appeal was successful. The issue to be determined by the Court of Appeal (CoA) was whether the LA could be held vicariously liable for torts of a foster carer who was related to the claimant.
By way of background, in 1979 it was described that DJ and his father were living an “itinerant lifestyle” travelling between family and friends. His mother lived in Scotland. Mr and Mrs G expressed an interest in looking after him. On 4 January 1980 he went to live with them and financial and material assistance was provided by the LA. In April 1980, at the LA’s suggestion, Mr and Mrs G applied to become DJ’s foster carers. A police check revealed Mr G had been convicted of three sexual offences in 1966 whilst he was a teenager. However, it was felt that they did not stand in the way of the foster application. A fostering assessment was completed and approved by the LA. DJ was received into care under s.1 of the Children Act 1948 on 1 August 1980. However, parental rights remained with the parents. In January 1984, parental rights for DJ vested in the LA as concerns were raised about DJ’s mother, who had got back in touch and was considered unfit to have care of DJ. DJ stayed with Mr and Mrs G until he was 21. Social workers regularly visited DJ until he turned 18.
The CoA held that from 1 August 1980, DJ was in the care of the LA and from that point the LA was under a statutory duty to care for him. The LA had recruited and selected Mr and Mrs G as foster carers. Therefore, the court held that the relationship between Mr and Mrs G and the LA was akin to employment and further, all five ‘incidents’ identified by Lord Phillips in the Christian Brothers case are satisfied. Therefore, the claimant’s second appeal was upheld.
Whilst the CoA decision means the claimant’s claim can now proceed, the court was keen to highlight that they were not establishing a blanket rule for vicarious liability cases involving relatives.
It is important to note the events of this case took place before the passing of the present day legislation, namely the Children Act 1989.
For more information on the implications of this case, contact our insurance lawyers.