DJ v Barnsley MBC – Yet another Extension of Vicarious Liability?

Readers will recall that in Armes v Nottinghamshire County Council [2017] UKSC 60 the Supreme Court held that a local authority can be vicariously liable for torts committed against a child by a foster carer who is not related to the child but specifically left open the question whether vicarious liability can arise where the child and the foster carer are related.

In DJ v Barnsley MBC and another [2024] EWCA Civ 841 the Court of Appeal was asked that very question. In a judgment dated 23 July 2024 the court allowed the claimant’s appeal and held that a local authority can be vicariously liable for torts committed against a child by a foster carer who is also a relative (and generally referred to as a kinship carer).

Background to the case

The key events date back to the 1980s. After the claimant had been abandoned by his parents, the local authority arranged for him to reside with his maternal aunt and uncle whom he had not previously met.  The local authority carried out a foster carer assessment of the aunt and uncle and subsequently approved them as foster carers.

It was not until 2018 that the claimant alleged that he had been sexually assaulted by his uncle during the foster care period.  He duly issued a civil claim, asserting that the local authority was vicariously liable for the uncle’s assaults.

At first instance Recorder Myerson QC dismissed the claim on the basis that the relationship between the kinship foster carers and the local authority was not akin to employment, given that the aunt and uncle would not have fostered the claimant had he not been a relative.  It was also noted that the claimant chose to stay with his aunt and uncle after his 18th birthday rather than live independently with local authority support. That was interpreted as further evidence that the claimant regarded his foster carers as his family.  The High Court (Mrs Justice Lambert) agreed with Recorder Myerson’s ruling. The claimant appealed to the Court of Appeal.

Court of Appeal judgment

The Supreme Court case of Barclays Bank plc v Various Claimants [2020] UKSC 13 sets out the two-stage test for establishing whether a person and/or organisation can be held vicariously liable for the torts of another:  For vicarious liability to exist, there must be a relationship that is “akin to employment” between the wrongdoer and the organisation.  Secondly, there must be a sufficiently close connection between that relationship and the wrongdoing of the person who has committed the tort.

Having regard to the above case, in DJ the Court of Appeal confirmed that the key to determining whether vicarious liability arose was in assessing the relationship between the local authority and the claimant, as well as the relationship between the local authority and the foster carers.  The Court of Appeal was satisfied that the two-stage test was met.

Allowing the appeal, the Court of Appeal accepted the claimant’s argument that the foster carers’ motive in agreeing to foster the claimant was irrelevant to the question of whether the local authority could be vicariously liable:

 ‘Motive is not relevant to determining whether the relationship between the local authority and the foster carer is “akin to employment’ (paragraph 64).

The relevant features to establish whether the relationship was akin to employment (the stage 1 test for vicarious liability) as identified in the case of Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB (Respondent) [2023] UKSC 15 were all present in DJ.  The BXB case set out the following relevant features to be considered when establishing whether the stage 1 test is met:

-          Whether the work is being paid for.

-          How integral the work carried out by the tortfeasor is to the organisation.

-          The extent of control the organisation had over the tortfeasor.

-          Whether the work being carried out is for the organisation’s benefit.

-          The situation regarding the appointment and termination of the role/work.

The relationship between DJ’s kinship foster carers and the local authority was found to be “akin to employment” having regard to the above features as set out in the Supreme Court case of BXB.

The stage 2 test for establishing vicarious liability, which is the “close connection” test is much more straightforward.  It was obvious that the aunt and uncle in DJ had pastoral/caring responsibilities to the Claimant and there was a sufficiently close connection between those responsibilities and the context in which the abuse was said to have occurred.

Further, the sense-checking policy considerations set out by Lord Phillips in the Christian Brothers case were satisfied. It was fair, just and reasonable to impose vicarious liability. Once the claimant had been received into care and his aunt and uncle had been approved as his foster carers, their care of DJ was integral to the local authority’s business of discharging its statutory duties towards him.

Importantly, the Court of Appeal make it very clear (paragraph 69) that they have reached their decision based upon the specific facts of the case:

‘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.  We heard no submissions on that topic…. We therefore echo the observation of Lord Reed in Armes (at paragraph 72) that “it would not be appropriate in this appeal to address the situation under the law and practice of the present day, on which the court has not been addressed, and which would also require a detailed analysis”.

Forbes Comment:

It is important to note that this decision is fact specific.  Whether a local authority will be vicariously liable for the actions of kinship carers will very much depend on the circumstances of the case.  Each case will need to be carefully analysed and assessed on its own facts.

It remains to be seen whether the defendant in DJ will seek permission to appeal to the Supreme Court for further clarification of the law regarding vicarious liability and kinship carers.  In the meantime, local authorities should continue to ensure that they are making the appropriate arrangements for their Looked After children in accordance with their statutory duties and child protection responsibilities.