Local authorities must be very concerned about the spate of recent cases in which parents, other family members and former ‘looked after children’ have sought damages for the alleged failure by an authority to exercise their powers lawfully or for abuse suffered whilst in their care. In these cases, courts have had to explore the potential liability of authorities in a variety of different contexts and to balance the legitimate claims of those who have been disadvantaged or abused against the increasingly limited public resources available to provide Children’s Services.

Northamptonshire County Council v AS & Others [2015] EWHC 199, Keehan J

Damages were claimed for breaches of the family’s Article 6 and Article 8 ECHR rights. The child, aged 15 days, was placed with foster carers purportedly pursuant to s.20 Children Act 1989. The local authority decided to apply for a care order 4 months later but the application was not issued for a further 5 ½ months. Thereafter, the local authority failed to assess extended family members, failed properly to plan for the child or to comply with court orders for the filing of evidence. Keehan J was scathing about the conduct of the local authority and approved agreed damages awards of £12,000 to the child, £4,000 to the mother and £1,000 to the grandparents.

Williams v Williams [2015] EWHC 2629, Robert Francis QC

The child’s parents claimed damages for misfeasance in public office, breach of statutory duty, negligence, religious discrimination and breach of Article 8 ECHR in respect of the actions of the local authority in keeping their children in care, purportedly under s.20 Children Act 1989. The case involved allegations of physical abuse by the father which eventually formed the basis of charges which were withdrawn when the prosecution offered no evidence against him. Robert Francis QC awarded the parents £10,000 each because when they had signed the s.20 agreement, they had not been fully informed of their right to take their children away from local authority accommodation or to take independent legal advice. Their agreement or acquiescence had not been fairly obtained. However, the claim in negligence failed because the local authority had honestly believed that there was a valid s.20 consent in place. It had taken decisions and implemented actions solely for the purpose of protecting the children against risks which it reasonably believed required protective steps to be taken. The claims for religious discrimination and misfeasance in public office were also dismissed.

NA v Nottinghamshire County Council [2014] EWHC 4005, [2015] 2 FLR 671 Males J & [2015] EWCA Civ 1139 Black, Tomlinson & Burnett LJJ

A 37 year old Claimant alleged that during her childhood she had been physically abused within one foster placement and then physically and sexually abused in another. At the time she made no allegations but now brought proceedings claiming that the local authority was responsible for the abuse she had suffered in foster care. The claims were time barred and had been since 1998. Males J disapplied the limitation period holding that a fair trial of the claims was possible. Although the Claimant’s allegations of abuse were made out, on the balance of probabilities, the claims of negligence failed. His decision was upheld by the Court of Appeal. It was held that the local authority were not vicariously liable for the actions of the foster carers. The control they exercised was at a higher or macro level. Day to day family life was a matter for the foster carers. The relationship was not analogous to that of an employer and employee. Nor was this a case where there was a non-delegable duty of care. The local authority had entrusted to these foster families the day-to-day delivery of accommodation within a family unit. This was not something which the authority itself could provide.

Courts are becoming increasingly robust with local authorities about breaches of the ECHR rights of children and families within the court process. The message about the misuse of s.20 accommodation and the unjustifiable delays in bringing and prosecuting care proceedings has been sent out loud and clear, by the President and the senior judiciary. Any local authority that ignores this message is likely to find itself penalised in damages.

However, the courts are much more circumspect about allowing claims in respect of historic abuse or claiming wider breaches by the local authority in the exercise of its statutory powers. Judges are only too aware of the financial pressures upon local authorities and the risk of ‘opening the floodgates’ to actions brought by former abused children or disgruntled families. In this context it is widely recognised that there is not much left ‘down the back of the sofa’.

No doubt there will be more cases in this area as litigants attempt to test out the boundaries of the emerging jurisprudence.