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Cite as: [2016] PTSR 580, [2016] QB 739, [2016] 2 FLR 1050, [2015] EWCA Civ 1139, [2016] 2 WLR 1455, [2015] WLR(D) 457, [2016] Fam Law 171, [2016] 1 FCR 419

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		Neutral Citation Number: [2015] EWCA Civ 1139
		Case No: B3/2014/4264

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM DISTRICT
REGISTRY
MR JUSTICE MALES
1NG90726

Royal Courts of Justice
Strand, London, WC2A 2LL

12/11/2015

B e f o r e :

LADY JUSTICE BLACK
LORD JUSTICE TOMLINSON
and
LORD JUSTICE BURNETT
____________________

Between:

	NA	Appellant
	- and -
	Nottinghamshire County Council	Respondent

____________________

Christopher Melton QC and Philip Davy (instructed by Uppal Taylor Solicitors) for the Appellant
Steven Ford QC and Adam Weitzman (instructed by Browne Jacobson Solicitors) for the Respondent
Hearing date: 14 July 2015
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Tomlinson:

The Appellant Natasha Armes, who has waived the anonymity to which she would otherwise be entitled, has lead a tragic life. She was born in July 1977. The judge below, Males J, observed, with good reason, that she had had a very unhappy childhood and that her unhappy childhood experiences had cast a long shadow over her life. This appeal is concerned with two episodes in her early life. From the age of seven until achieving her majority she was in the care of the Defendant local authority. In the exercise of its powers the local authority placed her into foster care with Mr and Mrs A between 25 March 1985 and 27 March 1986, and with Mr and Mrs B between 23 October 1987 and 23 February 1988. This appeal is concerned with the question whether the local authority is liable in respect of her physical abuse by Mrs A and her sexual abuse by Mr B. It is unnecessary for present purposes to go into the details, although they are to be found in the judge's comprehensive and careful judgment, [2014] EWHC 4005 (QB). It suffices to say that her treatment by Mrs A was cruel and her treatment by Mr B utterly despicable.

The Appellant suggests that the local authority is liable to her either because it is vicariously liable for the torts of the foster carers or because it owed to her a non-delegable duty of care to ensure that she was protected from harm. The judge rejected both arguments. So far as concerns vicarious liability, he considered that it was a crucial and essential feature of foster care that the local authority has no relevant control over the foster parents as to the manner in which, on a day to day basis, the foster parents provided to the child family life, bringing up the child as a member of their own family. That feature was inimical to the imposition of vicarious liability. So far as concerns non-delegable duty, the judge concluded that it would not be fair, just and reasonable to impose such a duty on the local authority. The Appellant challenges these conclusions. The Respondent local authority seeks to uphold them, and argues that the imposition of a non-delegable duty is additionally precluded by the circumstance that the local authority had not "delegated" to the foster carers a function which is an integral part of its own positive duty assumed towards the Appellant and that the foster carers could not therefore be said to be exercising the local authority's own care of the Appellant and the element of control that goes with it. Essentially, as I understand it, the argument is that the lack of control which precludes vicarious liability militates equally against the imposition of a non-delegable duty.

It is worth emphasising that we are on this appeal concerned and concerned only with the liability of this local authority for these events in the period 1985-1988, which in turn must be evaluated in the light of the legislative framework in the context of which the local authority exercised its powers. That legislative framework has since changed, and nothing that we say in relation to the position which obtained in 1985-1988 is of any necessary relevance to the position today. I recognise of course that there may be other cases of historic abuse to which our decision is relevant.

I turn therefore to the contemporary legislative framework which, as the judge observed at paragraph 160 of his judgment, defines the relationship between a local authority and foster parents, although it also defines the relationship between a local authority and a child in its care. The judge summarised the legislation in a manner which is acknowledged to be accurate and I propose therefore gratefully to adopt his summary:-

"Fostering – the legal framework

160. For both arguments, vicarious liability and non-delegable duty, the starting point is the status of foster parents. The relationship between a local authority and foster parents is defined by statute. The important statutes in this case are the Children and Young Person Act 1969 (CYPA 1969) and the Child Care Act 1980 (CCA 1980), which applied before the coming into force of the Children Act 1989 in October 1991 when the claimant was 14 years old. The claimant came into the care of the defendant local authority under section 1 of the CYPA 1969 which provided for the circumstances in which a care order could be made. These included the court being of the opinion that a child was being ill-treated.

161. Section 24 of the CYPA 1969 (and subsequently section 10 of the CCA 1980 which was in the same terms) set out the powers and duties of a local authority when a care order was made, which (in short) were "the same powers and duties with respect to a person in their care by virtue of a care order … as a parent or guardian would have". From the date of the first interim care order, therefore, the defendant assumed parental responsibility for the claimant.

162. Part III of the CCA 1980 dealt with the treatment of children in the care of local authorities. The general duty to a child in care was identified in section 18(1) and was that "in reaching any decision as to a child in their care, a local authority shall give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood", giving "due consideration" to the child's own wishes, "having regard to his age and understanding".

163. Section 21 specified the various ways in which a local authority could discharge its "duty to provide accommodation and maintenance" for a child in care. It provided for a range of possibilities, including (a) fostering with approved foster parents (described in the section as "boarding out"), (b) a children's residential home, of which there were two kinds, community homes and voluntary homes, (c) living with a parent, and (d) living with a relative or friend:

"(1) A local authority shall discharge their duty to provide accommodation and maintenance for a child in their care in such one of the following ways as they think fit, namely, -

(a) by boarding him out on such terms as to payment by the authority and otherwise as the authority may, subject to the provisions of this Act and regulations thereunder, determine; or

(b) by maintaining him in a community home or in any such home as is referred to in section 80 of this Act; or

(c) by maintaining him in a voluntary home (other than a community home) the managers of which are willing to receive him;

or by making such other arrangements as seem appropriate to the local authority.

(2) Without prejudice to the generality of subsection (1) above, a local authority may allow a child in their care, either for a fixed period or until the local authority otherwise determine, to be under the charge and control of a parent, guardian, relative or friend.

(3) The terms, as to payment and other matters, on which a child may be accommodated and maintained in any such home as is referred to in section 80 of this Act shall be such as the Secretary of State may from time to time determine."

…

165. Section 22 provided for the Secretary of State to make regulations for the welfare of children who were boarded out. The relevant regulations were the Boarding-Out of Children Regulations 1955 (as later amended although the amendments are not material) which prescribed the circumstances in which children might be boarded out and the supervisory duties of the local authority. The fundamental purpose of boarding-out appears from regulation 1 and the undertaking which foster parents were required to give, set out in the Schedule to the regulations. This was that a child was placed with foster parents "to live in their dwelling as a member of their family". The undertaking was that "We/I … having … received … CD … into our/my home as a member of our/my family undertake that – we/I will care for C.D. and bring him/her up as we/I would a child of our/my own". Thus the whole concept of fostering was to give a child something regarded by society as precious, namely the experience of family life.

166. The regulations required the local authority to visit the foster home and gave it the duty to remove a child if it appeared that boarding-out was no longer in the child's best interest, while a supervising visitor was empowered to remove a child immediately if he or she considered that conditions in the home endangered the child's health, safety or morals. However, the regulations did not give the local authority or its visiting social workers day-to-day control over the way in which the foster parents provided care for the child. That was a matter for the foster parents, consistently with the objective of giving the child a normal experience of family life."

It is relevant to note that whilst the foster parents are required to undertake to "look after his/her health and consult a doctor whenever he/she is ill and will allow him/her to be medically examined at such times and places as [the council] [the organisation] may require," nonetheless the Regulations at paragraph 8 impose upon the local authority the duty to make adequate arrangements for a child who is boarded out to receive medical and dental attention as required. It should also be remembered that it will be the local authority that decides on the level of contact with the birth family, whether or not the child can go on holiday, whether the child may have a passport, whether the child may go on school trips or make overnight stays with friends, as explained in unchallenged evidence given at trial.

The foster placement with Mr and Mrs B was on what is, I assume, a fairly conventional basis. When the Appellant arrived there was one other foster child in the home, a girl D of 5 and therefore about five years younger than the Appellant. D was subsequently adopted by Mr and Mrs B. Mr and Mrs B also had two sons, then aged 13 and 11 respectively. Mr and Mrs B had been fostering for some years.

The placement with Mr and Mrs A was on a somewhat different basis. Mr and Mrs A had been fostering children since 1973, therefore for 12 years by the time of the Appellant's placement with them. Numerous children had been placed with them on both short and long term basis. Mr and Mrs A generally had a large number of children with them at any given time and their home had been given the status of "Family Group Foster Home". The Appellant and her sister were two of nine or ten children being fostered by Mr and Mrs A at this time. They had in addition four children of their own. Whilst I recognise that families of 13 or 14 children are not unknown, I was not hitherto aware that fostering arrangements could take this form. A local authority review held on 21 March 1986, i.e. right at the end of the period of interest, concluded that the A family was to be particularly used for short term placements for children under 10. Inherent in both the judge's findings at paragraph 38 of his judgment as to the scale of Mr and Mrs A's fostering activities and in the decision reached by the local authority on 21 March 1986 is that the fostering arrangements in place at the home of Mr and Mrs A must have given rise to a fairly rapid turnover of foster children and moreover have given rise, at any rate after March 1986 if not before, to a community predominantly under the age of 10. This has given me pause for thought as to the implications of this arrangement for the proper analysis of the relationship between the local authority and "Family Group Foster Parents" as Mr and Mrs A are described in a document of October 1979. I do not mean by this observation to cast any doubt upon the value of the service that Family Group Foster Parents may have been able to offer and may continue to offer. My reservation is as to the appropriateness of the analogy with normal family life. However, it was not suggested in argument that the local authority's liability in respect of Mrs A fell to be analysed in any manner differently from that in respect of its liability in respect of Mr B, and I shall proceed accordingly.

At the outset of the discussion it is worth reminding oneself that the Appellant's pleaded case was that the local authority had failed to exercise reasonable care both in the selection of Mr and Mrs A and Mr and Mrs B as foster parents for her and in the supervision of these placements during the periods for which they lasted. Those allegations were the subject of a successful summary judgment application by the local authority from the outcome of which there has been no appeal. Consequently, as the judge observed at paragraph 6 of his judgment, "the allegations involving Mrs A and [Mr B] fall to be considered on the basis that the Defendant's social workers in fact exercised reasonable care in placing the Claimant with these foster parents and in supervising the placements, but that unknown to them and despite their exercise of reasonable care, physical and emotional abuse in the first case and physical and sexual abuse in the second case were taking place."

Vicarious liability

The judge not unnaturally adhered closely to the approach adopted by Lord Phillips of Worth Matravers in his judgment in Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1. He identified as the relevant issue whether the relationship between the local authority and the foster parents was sufficiently akin to an employment relationship to be capable of giving rise to vicarious liability. It was accepted that if it was, there was a relevant connection linking that relationship and the acts of abuse by Mrs A and Mr B.

The judge cited paragraph 35 of Lord Phillips' judgment, in which Lord Phillips identified the paradigm indicia of a relationship capable of giving rise to vicarious liability:-

"35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee's activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer."

The judge noted en passant two decisions, including one of this Court in 1985, to the effect that a local authority was not vicariously liable for injuries suffered as a result of the negligence or abuse of foster parents. The reasoning in S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150 was expressed in terms of agency, the Court holding that foster parents were not agents of the local authority. The judge considered however that the reliance in that case by this Court on the whole purpose of fostering being to replicate family life as being "inconsistent with any notion that the foster parents are in any way agents of the local authority in carrying out their duties" was equally applicable in rebutting the notion that there existed between the local authority and the foster carer a relationship akin to an employment relationship.

The judge included an extensive citation from the judgment of the majority of the Supreme Court of Canada in KLB v British Columbia [2003] 2 SCR 403 delivered by McLachlin CJ in which the Court concluded that the government was not vicariously liable for acts of physical abuse by foster parents with whom it had placed children in care. In discussing the extent to which the government enjoyed that control over foster parents which characterised an employment relationship the Chief Justice said this:-

"23. These factors suggest that the government is not vicariously liable for wrongs committed by foster parents against the children entrusted to them. Foster families serve a public goal – the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society. However, they discharge this public goal in a highly independent manner, free from close government control. Foster parents provide care in their own homes. They use their own 'equipment', to use the language of Sagaz. While they do not necessarily 'hire' their own helpers, they are responsible for determining who will interact with the children and when. They gave complete control over the organization and management of their household; they alone are responsible for running their home. The government does not supervise or interfere, except to ensure that the child and the foster parents meet regularly with their social workers, and to remove the child if his or her needs are not met.

24. The independence of the foster family is essential to the government's goal of providing family care. If foster parents had to check with the state before making ordinary day-to-day decisions, they not only would be less effective as parents, but would be unable to deliver the spontaneous, loving responses and guidance that the children need. Foster families must be left to arrange their own family routine, in their own way. They must deal with day-to-day challenges and problems by working them out within the family, and by sharing responsibility for doing this, demonstrating to foster children that it is possible to resolve difficulties by working together. Moreover, foster children must know that their foster parents have this responsibility. Only in this way can foster children come to understand that authority figures can be loving and consistent and worthy of trust. Foster parents cannot function as loving and consistent authority figures unless they have some authority to exercise. Hence, while foster parents act in furtherance of a public purpose, they must operate independently of day-to-day state control if they are to meet the goals of foster care.

25. The fact that foster parents must operate so independently in managing the day-to-day affairs of foster children and in resolving the children's immediate problems, and the fact that they exercise full managerial responsibility over their own household are indications that, in their daily work, they are not acting on behalf of the government. It is also important to note, in this connection, that they do not hold themselves out as government agents in the community; nor are they perceived as such. Although foster parents are indeed acting in the service of a public goal, their actions are too far removed from the government for them to be reasonably perceived as acting 'on account of' the government in the sense necessary to justify vicarious liability.

26. This conclusion finds confirmation in the fact that imposing vicarious liability in the face of a relationship of such independence would be of little use. Given the independence of foster parents, government liability is unlikely to result in heightened deterrence. Exacting supervision cannot prevent abuse when the supervising social worker is absent, as must often be the case in a private family setting. Nor is stricter monitoring a real option. Governments can and do provide instruction and training to foster parents. They can and do put in place periodic monitoring. They can and do encourage social workers to develop communication between social workers and foster children. These are now standard practice and are encouraged by direct liability. But given the nature of foster care, governments cannot regulate foster homes on a day-to-day basis. Imposition of vicarious liability can do little to deter what direct liability does not already deter. Not only would imposing vicarious liability do little good; it could do harm. It might deter governments from placing children in foster homes in favour of less efficacious institutional settings. And it would raise the question of why the government should not be vicariously liable for other torts by foster parents such as negligent driving causing injury to a foster child. While these concerns might not be insurmountable, they tend to confirm the conclusion that the relationship between foster parents and the government is not close enough to support a finding that the government is vicariously liable."

The judge summarised his own conclusions by reference to those of the Canadian Supreme Court in this way:-

"176. I respectfully agree with this reasoning which although stated by reference to Canadian law and practice applies with equal force to the statutory and regulatory regime applicable in this country at the relevant time. In short, applying the tests referred to in the Various Claimants case, the decisive point is that the defendant local authority not only does not have control over the foster parents, whether to direct what they do or how they do it, but that it is essential to the whole concept of foster parenting that the local authority should not have that control. The foster parents' role is to provide family life, bringing up the child as a member of their own family. That is only possible if a foster parent enjoys independence from direction by the local authority and autonomy to determine how the child should be parented.

177. Although the first and fourth features identified by Lord Phillips are present (the local authority is more likely to have the means to compensate a claimant and will have insurance, and by placing the child with the foster parents the local authority will have created the risk of abuse being committed by the foster parents), the remaining features are not. The foster parent does not provide family life on behalf of the local authority; rather the local authority promotes the welfare of the child by placing it in a home where it can be expected to benefit from family life. The provision of and participation in family life is not part of the activity of the local authority. The foster parents are not to any material degree under the control of the local authority."

I would sound a note of caution over the judge's reference to insurance. As I understand it the judge had no evidence as to the insurance cover available to or habitually enjoyed by local authorities, let alone that available or typically held in the 1980's. No doubt employer's liability insurance can be assumed to have been in place but would not be relevant. Whether standard liability insurance against the consequences of negligence would enure to the benefit of a local authority held vicariously liable for the negligence or intentional conduct of a foster parent has for obvious reasons not been tested. It can of course be accepted that a local authority will ordinarily be more likely to have the means to compensate a victim than will a foster parent, but I caution against the introduction of the availability of insurance as a factor in the debate. It may be a relevant factor, but we have no evidence as to its availability.

The principal attack made by Mr Christopher Melton QC upon the judge's reasoning was twofold. First, he was critical of the judge's approach to the issue of control, which, he noted, is in any event no longer determinative. He submitted that whilst the idea underpinning foster care may be the emulation of family life, the reality is very different for the very reason that the local authority remains in loco parentis and moreover has a level of control over what foster parents may or may not do which, he suggested, goes way beyond that enjoyed by the Institute of Brothers over its members which was the relationship under examination in the Catholic Child Welfare case. Second, Mr Melton submitted that the activities of foster parents are central to the enterprise of a local authority – the foster parents may be "homeworkers" but they are sufficiently integrated into the organisational structure of the enterprise.

I reject these submissions for essentially a single reason. The provision of family life is not and by definition cannot be part of the activity of the local authority or of the enterprise upon which it is engaged. Family life is not capable of being so regarded, precisely because inherent in it is a complete absence of external control over the imposition or arrangement of day to day family routine, save insofar as is provided by the general law or by ordinary social conventions. The control retained by the local authority is at a higher or macro level. Micro management of the day to day family life of foster children, or of their foster parents in the manner in which they create the day to day family environment, would be inimical to that which fostering sets out to achieve, for the reasons expressed by McLachlin CJ at paragraph 24 of her judgment. The control retained by the local authority, over and above the proper selection of foster parents and adequate supervision of the placement which is here not in issue, is thus irrelevant to the risk of abuse occurring during the unregulated course of life in the foster home. In the Catholic Child Welfare case Lord Phillips described the relationship between the Brothers and the Institute as "closer than that of an employer and its employees." The manner in which the Brother teachers were obliged to conduct themselves as teachers was dictated by the Institute's rules. There is in my view not the remotest of analogies to be drawn between that situation and the relationship of local authority to foster parents.

Non-delegable duty

On this aspect of the case the judge was guided by the recent decision of the Supreme Court in Woodland v Swimming Teachers Association and Others [2013] UKSC 66, [2014] AC 537. The judge identified as the relevant issue whether the local authority could be taken to have assumed responsibility for the exercise of due care by third parties to whom it delegated the performance of its duty to protect the Appellant from harm.

The judge cited paragraph 23 of Lord Sumption's judgment in Woodland in which he suggested that the paradigm indicia of a situation in which such an assumption of responsibility may be found are as follows:-

"(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.

(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him."

The judge also cited Baroness Hale's cautionary reminder at paragraph 38 that judicial statements or perhaps distillations of this sort are not to be treated as if they were statutes and can never be set in stone.

The judge regarded all five indicia as here present. He therefore turned to the next stage of the enquiry, encapsulated by Lord Sumption at paragraph 25 of his judgment as follows:-

"25. The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so. But I do not accept that any unreasonable burden would be cast on them by recognising the existence of a non-delegable duty on the criteria which I have summarised above."

The judge gave seven reasons for his conclusion that it would not be fair, just and reasonable to impose a non-delegable duty on the local authority which I hope I fairly summarise as follows:-

1. An abused child does have a remedy in law against an abusive foster parent and some foster parents will have the means to satisfy a judgment against them. Children abused by foster parents are thus no worse off than those abused by anybody else, including natural parents, for whom there is no question of vicarious responsibility;

2. Imposition of a non-delegable duty would impose an unreasonable financial burden on local authorities providing a critical public service. The provision of compensation for historic cases would impact upon the ability of the authority to maintain its provision of foster care resources;

3. Imposition of a non-delegable duty would, consciously or sub-consciously, promote "risk averse foster parenting";

4. There is a fundamental distinction between placement with foster parents and placement in a children's home. The former provides the experience of family life which is the cultural norm in our society. The latter does not. It is inherent in foster care placements that the local authority does not have the same control over the day to day lives of children in foster care that it has over children in residential homes. That is a benefit to the children in foster care and is necessary in order to give them the experience of family life which is the purpose of fostering. As fostering necessarily involves a release of the control which the local authority has over a child, it may in a sense be regarded as inherently risky. But with the risks come the benefits which life in a children's home cannot provide. Provided that all necessary reasonable care has been taken to ensure that the foster parents and the placement are suitable, those are risks which will generally be worth running in order to obtain for a child the benefits of family life. Members of the public would not struggle to understand that different considerations apply to the legal responsibilities of local authorities in the two situations, and would not regard it is unacceptable for liability to exist in one case and not in the other. It does not therefore follow that a child placed with foster parents ought as a matter of policy to have the same no-fault remedy against a local authority as a child placed in a residential home who is abused by local authority employees;

5. It would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including its own parents. The Appellant accepted that it would not be right to make the local authority liable for breach of a non-delegable duty in the case of ill-treatment by natural parents with whom the child in care is allowed to live, it being very common for a child in local authority care and for whom the local authority therefore has parental responsibility to be allowed to live with its natural parents either full time or for part of the time, as had in fact happened to the Appellant at another period with which we are not now concerned. Once it is recognised that the local authority's liability on the basis of a no-fault non-delegable duty should not extend to all cases where in the exercise of its parental responsibility it places a child with a family, the better view is that there should not be a non-delegable duty in such cases at all and that the ordinary principles of tort law (including the principle of vicarious liability) should govern the local authority's liability;

6. There are not here present two factors which weighed with the Supreme Court in Woodland – (i) a potential unfair distinction between those who can pay the fees for private education and thereby obtain the benefit of a contractual non-delegable duty of care and those who cannot pay and (ii) a local authority once having provided a service itself but subsequently deciding to outsource provision of the relevant service;

7. The majority in the KLB case had concluded that the applicable Canadian legislation provided no basis for imposing a non-delegable duty to ensure that no harm to children in care comes through the abuse or negligence of foster parents.

The Appellant contends that the judge lost sight of the significance of the presence of the paradigm five defining features, each of which needed to be re-evaluated in the context of whether it is fair, just and reasonable to impose a non-delegable duty. The strongest policy consideration is, she submits, that victims of childhood abuse following removal from their homes by reason of parental inadequacy should have meaningful recourse to the civil justice system. The judge had been wrong to compare the position of a child abused outside the context of local authority care, where the five defining characteristics which are a pre-requisite to the imposition of a non-delegable duty would not have been present. The judge gave inappropriate weight to the potential financial burden on local authorities as to which there was inadequate evidence and which could in any event be met by insurance. It was artificial to distinguish between those abused in children's homes, who would have a remedy, and those abused in foster care, who would not.

The local authority for its part submitted that the judge had been wrong to regard it as having delegated to the foster parents a function which is an integral part of the positive duty which it assumed towards the Appellant. The foster parents were not exercising, for the purpose of the function delegated to them, the local authority's care of the Appellant and the control which goes with it. The judge had himself observed in the context of vicarious liability that "the foster parent does not provide family life on behalf of the local authority" [177] and should have recognised that the function of providing foster care is not one which the local authority either can or is obliged to perform. Swimming lessons in Woodland, by contrast, could have been and formerly had been provided by employees of the local authority.

The duty which the judge here found had been delegated to the foster parents was the duty which it was common ground the local authority owed to the child, a duty to take reasonable steps to protect the child from harm. In my judgment the judge here fell into error. In my view the judge was concentrating on the wrong function and the wrong duty. The circumstance that the local authority exercised care in the selection of the foster parents, care in the supervision of the placement and retained its overarching powers to which I have already referred suggests to me that the local authority did not attempt to divest itself of its duty to take reasonable steps to protect the child from harm. Mr Steven Ford QC submitted that the "function" or duty on which the judge should have concentrated was that imposed on the local authority by section 21 of the Child Care Act 1980 to provide accommodation and maintenance for a child in its care. One way in which that duty could be discharged was by "boarding out" (i.e. fostering) but by definition fostering is not a function which is an integral part of the positive duty assumed by the local authority because the local authority cannot itself provide foster care, but only arrange for it to be provided by others.

I agree with Mr Ford. In order to be non-delegable a duty must relate to a function which the purported delegator, here the local authority, has assumed for itself a duty to perform. Fostering is a function which the local authority must, if it thinks it the appropriate choice, entrust to others. By arranging the foster placement the local authority discharged rather than delegated its duty to provide accommodation and maintenance for the child. True it is that the local authority entrusted to the foster parents the day to day delivery of accommodation, but accommodation within a family unit was not something which the local authority could itself provide and this cannot properly be regarded as a purported delegation of duty. It was inherent in the permitted choice of foster care that it must be provided by third parties.

It follows that I would dismiss the appeal on the non-delegable duty ground on the basis that no such duty of the local authority was engaged. That renders it unnecessary for me to express a view on the judge's conclusion that it was not in any event fair, just and reasonable to impose such a duty. However for my part I was not persuaded that the judge gave inappropriate weight to the factors which I have summarised at paragraph 20 above. In particular I see great force in the fifth reason. Allowing a child in its care, either for a fixed period or until the local authority otherwise determines, to be under the charge and control of a parent, guardian, relative or friend is an option afforded to a local authority by section 21 (2) of the 1980 Act to which, on the evidence, resort is commonly made. I agree with the judge that no distinction is to be derived from the circumstance that foster parents have to be approved by the local authority. If the local authority decides to allow a child in its care to be under the charge and control of a natural parent or person other than a foster carer, that decision necessarily carries with it a considered conclusion that the carer is a suitable person. It would be unprincipled for liability to attach to the local authority on what is essentially a "no-fault" basis in the one case but not the other.

The local authority advanced both before the judge and before us a further argument to the effect that the local authority, on the assumption that it had delegated its duty of care to take reasonable steps to prevent harm accruing to the child, could not be liable for the deliberate rather than careless conduct of a foster carer. The judge did not need to deal with this argument although he indicated that he would have rejected it. On my approach to the case the point does not arise and I express no view on it. The argument will of course be available to the local authority should the case go further.

I would dismiss the appeal.

Lord Justice Burnett:

For the reasons given by Tomlinson LJ and Black LJ I agree that the application of the principles explained by the Supreme Court in Various Claimants v. Catholic Church Welfare Society and others [2012] UKSC 56, [2013] 2 AC 1 leads to the conclusion that the circumstances of this case do not give rise to vicariously liability for the assaults perpetrated upon the Claimant by Mrs A and Mr B. To my mind, those principles are also consistent with the approach of the Supreme Court of Canada when it rejected the contention that the Canadian public authority with care of children was vicariously liable for the physical abuse by foster parents with whom they had been placed: KLB v. British Colombia [2003] SCR 404.

I agree also that there is no relevant non-delegable duty in play in these proceedings, with the result that the appeal should be dismissed.

Before determining in any given situation whether there is a non-delegable duty, it is necessary to identify the duty owed by the person concerned which is said cannot be delegated. The judge considered that the local authority was "under a duty to care for the child – to promote its welfare and to protect it from harm". A local authority does not accept an unqualified duty when a child is taken into care. I would accept the judge's formulation subject to the duties being qualified by "reasonable practicability".

The Claimant is here suggesting that the local authority's duty to protect a child from harm has the practical effect of making it strictly liable for any harm deliberately inflicted upon the child who is in its care, by those looking in fact after it. The Claimant submits that the local authority has a duty not to assault children in its care (albeit it could do so only through its servants or agents); and that duty is non-delegable. Placing a child with foster parents is only one option open to a local authority when a child is not accommodated in a residential home run by the local authority itself. For example, children in care are frequently placed with their natural parents or close relatives. They could be placed at a boarding school during term time or in a care home not run by the local authority. I did not understand the Claimant to be suggesting that a non-delegable duty not to assault should operate in these circumstances. It may be that the Claimant would accept that it would not be fair, just and reasonable to impose such a duty, although no principled distinction was identified. The "fair just and reasonable" formulation is generally used when considering the tort of negligence and the imposition of a duty of care. The legal obligation not to assault another is an absolute one imposed by the criminal law.

The English cases concerning non-delegable duties cited to us were all concerned with the question whether a duty of care should be non-delegable. They were cases about negligence. None was concerned with assault. The doctrine of vicarious liability has developed in recent decades to impose liability upon a defendant for the criminal act of another in limited circumstances. That development, reflected in the Supreme Court judgments in Various Claimants, is subject to control mechanisms judged to be necessary to achieve a proper distribution of liability which reflects current legal policy. We have been shown no case where the concept of a non-delegable duty has been successfully relied upon to found a cause of action for assault rather than negligence.

The only circumstances in which a claimant might need to pray in aid a non-delegable duty of care would be if the vicarious liability route to success in the litigation had failed. That was the position in Woodland v. Swimming Teachers Association [2013] UKSC 66; [2014] AC 537, in the KLB case and also in the Australian case of State of New South Wales v. Lepore 212 CLR 511 decided by the High Court of Australia in 2003. These Commonwealth cases concerned allegations of assault and arguments that there was a non-delegable duty to protect children from intentional harm. The need to rely upon a non-delegable duty of that nature arose only because vicariously liability could not fix the relevant public authority with liability.

I find it very difficult to imagine circumstances in which a court could conclude that there was no vicarious liability for an assault but then go on to fix a defendant with liability for breach of a non-delegable duty not to assault the claimant. If, applying the principles summarised in the Various Claimants case (with their carefully calibrated policy considerations), there is no vicarious liability for an assault upon a child in care, I do not consider that the common law should impose liability via this different route.

There is powerful persuasive authority for that approach in Lepore. That case concerned sexual abuse of a pupil by a teacher. There was originally no allegation and no finding of vicarious liability. The case had been tried at first instance before the decision of the House of Lords in Lister v. Hesley Hall Ltd [2002] 1 AC 215 which recognised that vicarious liability might attach in such cases. It was in those circumstances that the question of a non-delegable duty extending to assault arose in Lepore. The case of Lister was considered in the final appeal before the High Court of Australia. The court concluded that there was no vicarious liability on the part of the state for the sexual assault, supported by a wide range of reasoning. There were differing views about whether the school owed a non-delegable duty of care to its pupils. Only one justice, McHugh J, in agreement with the Court of Appeal of New South Wales, concluded that the non-delegable duty of care was such that it made no difference whether harm was intentionally or negligently inflicted. The remaining justices who expressed a view concluded that the difference was all important.

Non-delegable duties of care have been recognised by the common law to avoid the restrictions on liability which flow from the application of the rules ordinarily governing vicarious liability. They result in "employers" being held liable for the negligence of independent contractors and others in respect of whom the employer is not vicariously liable. The background was summarised by Lord Sumption in Woodland between paragraphs 3 and 7. Non-delegable duties were not recognised or developed by the common law for the purpose of expanding the content of the underlying duty of care and have hitherto been considered in the context of negligence.

The Appellant seeks to disconnect the non-delegable duty from the law of negligence and impose a new form of strict liability. The justification for such a step appears to be that foster parents may not be in a position to satisfy a claim for damages and costs if sued directly. Whether that is right or wrong in general, in my judgment it provides too insubstantial a ground for a significant extension of the law in this area, which might have wide implications.

I have had the advantage of reading in draft the judgment of Black LJ and note her hesitation in holding that, as a matter of principle, the law should not recognise a non-delegable duty not to assault. Whatever may be the nature and scope of the duty engaged in this appeal, I agree with the reasons given by the judge why, in policy terms, the imposition of a non-delegable duty would not be fair, just and reasonable in the circumstances contended for by the Appellant. Furthermore I agree with the further elucidation of those reasons found between paragraphs 60 and 65 of the judgment of Black LJ.

To my mind a further important consideration is that the relationship between local authorities and children in care arises in the context of statutory duties. It is legitimate to consider whether the non-delegable duty contended for is consistent with the statutory scheme.

In the KLB case the Supreme Court of Canada was concerned with circumstances of abuse perpetrated by foster parents on children in care. Liability was established, subject to limitation arguments, because there had been negligence on the part of the public authority in the assessment and supervision of the foster parents. I have noted the Court's conclusion that the case for extending vicarious liability to the relationship between the public authority and foster parents was not made out. Additionally, the Supreme Court was unable to accept that the statutory scheme in Canada could found a non-delegable duty to make sure that no harm came to children in care through the deliberate abuse, or negligence, of foster carers. The Court looked at the statutory scheme from which the powers and duties of the responsible public body flowed and concluded that it could not support a non-delegable duty relating to abuse (or, indeed, negligence). Its reasoning is persuasive.

The principal features of the statutory scheme applicable in England were set out by the judge and are quoted by both Tomlinson and Black LJJ. Both section 24 of the Children and Young Persons Act 1969 and section 10 of the Child Care Act 1980 (the governing provisions for this Appellant) provided that the local authority had the same powers and duties as a parent or guardian. Section 18(1) of the 1980 Act required "first consideration" to be given to "the need to safeguard and promote the welfare of the child" when making any decision relating to the child. That is a duty which attaches to the decision making relating to a child. Section 21 of the same Act imposed the duty to provide accommodation and maintenance. In my judgment, none of these provisions provides any foundation for the non-delegable duty contended for. Indeed, in tying the powers and duties to that of a parent or guardian it seems to me that the statutory scheme is inconsistent with the nature of the non-delegable duty contended for by the Claimant. Parents who let their children stay away from home, for example by going on holiday with friends or relations, could not sensibly be fixed with liability for an assault on the basis of a non-delegable duty. Similarly, if they arranged for their child to stay with friends or family to be near a school (a familiar arrangement in parts of rural Scotland) there could be no such non-delegable duty, any more than if a child were at a boarding school.

I accept that in the context of the scope of a duty of care owed by a local authority to a child in its care "the comparison between a parent and a local authority is not an apt one" for the reasons given by Lord Hutton in Barrett v. Enfield London Borough Council [2001] 2 AC 550 at 588. See also paragraph 25(6) of the judgment of Lord Sumption in Woodland. However, the difference of approach when considering questions which arise in the context of duties of care in negligence provides no basis for imposing the non-delegable duty in issue in this appeal. The reasoning which supports the conclusion that the duty of care owed to a child by a local authority should not necessarily reflect the parallel duty owed by a parent, to my mind does not read over to deliberate infliction of harm. If, as is uncontroversial, parents would not be saddled with a non-delegable duty of this sort, that conclusion provides strong support for the proposition that a local authority should not be either.

Like Tomlinson and Black LJJ I would dismiss the appeal.

Lady Justice Black:

I have had the advantage of reading the judgments of Lord Justice Tomlinson and Lord Justice Burnett in draft and I agree with them that the appeal should be dismissed.

Vicarious liability

I shall say very little about the issue of vicarious liability. Like my Lords, I am not persuaded by the submissions of the Appellant in this regard. For vicarious liability to exist, there would have to be (1) the necessary relationship between the foster parents and the local authority and (2) the requisite close connection between that relationship and the abuse that they committed (see paragraph 21of Lord Phillips' judgment in Various Claimants v Catholic Church Welfare Society, supra, and also paragraph 88 where he proceeds to apply what he has distilled from the authorities in the preceding paragraphs). I do not consider that the relationship between the foster parents and the local authority was of the required nature. It was not, to my mind, sufficiently akin to employment. Although the significance of control in the relationship has changed over the years, it remains a relevant aspect of the assessment of whether there is vicarious liability. Certain aspects of the care of a child by foster parents are, and were at the relevant time, regulated and the local authority have a supervisory duty over the placement, which can be ended if they consider it appropriate. But the essence of the arrangement is, just as it was at the time with which we are concerned, that the child is placed with the foster parents to live with them as a member of their family. The child's day to day life is in the charge of the foster parents, who are expected to give the child as normal an experience of family life as they can. The degree of independence that this gives the foster parents is not indicative, in my view, of a relationship giving rise to vicarious liability.

Non-delegable duty

Both Lord Justice Tomlinson and Lord Justice Burnett conclude that the Appellant cannot establish liability by the route of non-delegable duty but they reach this conclusion for different reasons. Tomlinson LJ considers that the focus should be on the local authority's duty under section 21 of the Child Care Act 1980 to provide accommodation and maintenance for a child in their care which, on his analysis, the local authority did not delegate but discharged by placing the child with foster parents. Burnett LJ considers that the relevant duty is a duty of the local authority "to care for the child – to promote its welfare and to protect it from harm" (as Mr Justice Males found at paragraph 193), which Burnett LJ would qualify by "reasonable practicality". Central to Burnett LJ's approach is the fact that the Appellant suffered deliberate assaults by the foster parents. He rejects the notion that such non-delegable duty as the local authority has gives rise to strict liability for deliberately inflicted harm or, putting it another way, he considers that there was no non-delegable duty not to assault the claimant.

My analysis would be slightly different from either of these approaches, although arriving at the same end point. I freely admit, however, that I have found the whole question of non-delegable duty difficult in this case, including (but not limited to) the issue of which of the local authority's duties under the statutory care scheme is/are relevant in this particular context.

When looking to see whether the local authority's obligation to a child in their care included anything that could properly be identified as a non-delegable duty of the type contemplated in Woodland v Swimming Teachers Association and others [2013] UKSC 66 [2014] AC 537, it is important to remember that there is no question but that the local authority exercised reasonable care in placing the Appellant with the foster parents and supervising the placements. What is under consideration is abusive activity by the foster parents which was occurring unbeknown to the local authority, despite them having discharged their part of the arrangement competently, and in an environment over which they had limited control. However, in my view, none of these factors necessarily rules out the existence of a non-delegable duty. As to control, as Lord Sumption observed at paragraph 24 of the Woodland case, "[w]here a non-delegable duty arises, the defendant is liable not because he has control but in spite of the fact that he may have none". As to the absence of fault on the part of the local authority, in non-delegable duty cases, the duty extends beyond being careful, to procuring the careful performance of work delegated to others (see, for example, paragraph 5 of the Woodland case); I look in due course at the implications of the fact that the conduct of the foster parents was deliberate rather than negligent.

Males J held that implicit in the whole concept of taking a child into care was a duty on the local authority to care for the child, promoting its welfare and protecting it from harm (paragraph 193). He considered that that was not limited to a duty to care for the child's material needs by providing accommodation and maintenance. That particular duty was, he thought, discharged by placing the child in appropriate accommodation pursuant to section 21 of the Child Care Act 1980 but, he said, "the broader aspects of the duty remain". In his view, "[c]are and protection of the child from harm, which is an integral part of the overall duty, is delegated to the foster parent or other person with whom the child is placed" (paragraph 195). Broadly speaking, I agree with him although, whereas he reached his conclusion on the basis that the local authority's duty was implicit in the care scheme, I think there are express statutory provisions which give rise to it.

I have in mind the duty imposed on the local authority by section 24(2) of the Children and Young Persons Act 1969 (later replaced by section 10 of the Child Care Act 1980 which was in the same terms). As material, the provision was as follows:

"A local authority shall, subject to the following provisions of this section, have the same powers and duties with respect to a person in their care by virtue of a care order …. as his parent or guardian would have apart from the order…."

This function of the local authority was "additional to the functions which are conferred on the authority in respect of a child" by Part II of the Children Act 1948/Part III of the Child Care Act 1980 (see section 24(7) of the Children and Young Persons Act 1969 and section 12(2) of the Child Care Act1980). Part II of the 1948 Act included, at section 12, the general duty of the local authority to exercise their powers so as to further the child's best interests. Part III of the 1980 Act included section 18 which imposed a general duty on the local authority, in reaching any decision as to a child in their care, to give first consideration to the need to safeguard and promote his welfare throughout his childhood.

Identifying the local authority's duty as the same as that of a parent gives rise to as many questions as it answers. A parent owes a duty of care to his child and may be liable for failing to protect the child from injury. However, the courts are anxious not to impose an impossibly high standard of care in an ordinary domestic setting and, when considering the liability of a local authority for the exercise of its parental responsibility towards a child in care, the comparison between a local authority and a parent is not necessarily apt because the local authority has to make decisions in relation to the child of a nature which a parent does not have to make, as Baroness Hale observed at paragraph 41 of the Woodland case, with particular reference to Surtees v Kingston upon Thames Borough Council [1992] PIQR P101 and Barrett v Enfield London Borough Council [2001] 2 AC 550, 588. I am not sure that much would be gained by further examination here of the precise attributes of the local authority's duty when, for reasons I shall endeavour to explain, I would not consider it appropriate to hold that there is a non-delegable duty in this case even if the circumstances which might give rise to such a duty all appeared to be present.

Those circumstances can be found set out by Lord Sumption in a passage beginning at paragraph 22 of the Woodland case, where he developed his consideration of the boundaries of the exceptional situations in which a non-delegable duty arises. The five indicia which he set out in paragraph 23 can be found above in paragraph 17 of Lord Justice Tomlinson's judgment. Males J considered that all of these indicia were present.

The local authority accepted that the first two were present and I agree that they were. The Appellant was a child and there was an antecedent relationship between her and the local authority by virtue of the care order which, independently of what happened at the foster parents' homes, placed her in the actual care, custody or charge of the local authority rather than of her parent. The local authority had a significant degree of control over her and, given the practicalities of the situation and the statutory provisions governing their duty to children in their care, I would impute to the local authority a positive duty to protect her from harm.

I agree with Males J that the third element was also present. The Appellant had no control over how the local authority chose to perform their obligations i.e. whether personally (for instance by placing her in a local authority children's home) or through third parties such as foster parents; her wishes were at most a relevant factor in their decision as to what provision to make for her.

Debate was generated by the fourth element, that is that the defendant has delegated to a third party a function which is an integral part of the positive duty which he has assumed towards the claimant and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it. I am inclined to agree with Males J that this was present, given that I see the local authority's duty as wider than simply the provision of accommodation and maintenance, extending to other aspects of care. As I see it, the local authority delegated to the foster parents the obligation to care for the Appellant as a parent or guardian would, which was an integral part of the positive duty which they had assumed towards her and, on a day to day basis, the foster parents were exercising the local authority's care of her and the element of control that went with it.

The fifth element is that the third party has been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him. Males J was prepared to accept that this was satisfied, notwithstanding the local authority's submission that deliberate assaults could not involve any breach of delegated duty.

The deliberate character of the foster parents' conduct is an important feature in Burnett LJ's determination that this is not a case where there is liability for breach of a non-delegable duty. I find myself less decided about that than he is. Certainly, Lord Sumption expressed himself in the terminology of "reasonable care", describing the issue in the case as follows:

"4. The issue on this appeal is, however, nothing to do with vicarious liability, except in the sense that it only arises because there is none. On the footing that the local authority was not vicariously liable for the negligence of Mrs Stopford, Ms Burlinson or Ms Maxwell, the question is what was the scope of the authority's duty to pupils in its care. Was it a duty to take reasonable care in the performance of the functions entrusted to it, so far as it performed those functions itself, through its own employees? Or was it a duty to procure that reasonable care was taken in their performance by whomever it might get to perform them? On either view, any liability of the education authority for breach of it is personal, not vicarious."

and continuing , in the following paragraph:

"The expression "non-delegable duty" has become the conventional way of describing those cases in which the ordinary principle [that the law does not in the ordinary course impose personal, as opposed to vicarious, liability for what others do or fail to do] is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others."

However, the Woodland case involved negligence on the part of those involved in teaching the claimant swimming. It did not involve deliberate conduct of the type with which we are concerned here and it is not therefore surprising that the principles that emerged were formulated in these terms. The local education authority had a duty to take reasonable care in the performance of the functions entrusted to it. That is the duty that it could not delegate and that was Lord Sumption's focus. In the present case, the relevant duty is one that is established by statute and it is different in nature. Depending on precisely how it is viewed, it could possibly extend to a duty not to assault the child (reflecting the parent's duty not to assault the child), and on that analysis, that duty not to assault the child would be the duty entrusted to the foster parents by the local authority.

Although no case has been found which extends liability for breach of a non-delegable duty into the realms of criminal activity, there can undoubtedly be tortious liability for the criminal act of another. Lister v Hesley Hall Ltd [2002] 1 AC 215 established that vicarious liability can extend to liability for a criminal act (vicarious liability of the owners of a school for sexual abuse committed on pupils by the warden of a boarding house). True it is that such vicarious liability will only arise if the relevant criteria which "ensure that a remedy for harm caused by abuse is provided by those that should fairly bear that liability" are satisfied (Various Claimants v Catholic Child Welfare Society, paragraph 83). It is, of course, important that liability for breach of a non-delegable duty should also be defined so that it falls upon those who should fairly bear it. But liability for non-delegable duty goes further than vicarious liability and is a different concept from it. As Lord Sumption said in paragraph 4 of the Woodland case (see above), it only arises because there is no vicarious liability. Accordingly, I do not find it as difficult as Burnett LJ to contemplate that assault might give rise to liability for breach of a non-delegable duty in circumstances where the defendant was not vicariously liable for the assault.

I do not propose to take my discussion of this point any further because it seems to me that consideration of the five features set out in Lord Sumption's paragraph 23 should not be undertaken in a limbo. This is because the question of liability for non-delegable duty has got to be approached having very much in mind what he said at paragraph 25 of the Woodland case:

"The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so."

Lord Sumption explained why he considered that no unreasonable burden would be imposed in that case. In this case, however, I am of the view that to impose a non-delegable duty on a local authority would be unreasonably burdensome and, in fact, contrary to the interests of the many children for whom they have to care.

I therefore find myself in agreement with Males J's conclusion about this aspect of the case. I take into account the desirability of providing a remedy of substance for someone in the Appellant's position. Nothing that I say here should be taken as suggesting that I am anything other than deeply conscious of the dreadful treatment she has suffered and sympathetic to the lasting impact that it must have had upon her. However, there are powerful reasons against the imposition of liability in circumstances such as the present ones.

It is a fundamental principle of social work practice that children are best placed in a family environment. If they cannot live with their parents, the majority of children are therefore likely to benefit most from a foster placement. Careful screening of prospective foster parents, training, supervision of the foster family, proper checks and balances in relation to the foster parents' practice, and regular contact between social services and the child all play their part in ensuring that the child is safe with the foster parents. If, through the duty that it places upon the local authority, the law of negligence improves the chances of these safeguards being rigorously maintained, it is a very good thing. But, as this case demonstrates, even proper care on the part of the local authority cannot always prevent harm coming to the child from the foster parents. It seems to me that the imposition of liability for the actions of the foster parents by means of a non-delegable duty, operating in the absence of negligence on the part of the local authority, would be likely to provoke the channelling of even more of the local authorities' scarce resources into attempting to ensure that nothing went wrong and, if such were possible, into insuring against potential liability (see paragraph 201 of Males J's judgment). Particularly influential in my thinking is the fear that it would also lead to defensive practice in relation to the placement of children. Local authorities would inevitably become more cautious about taking the risk of placing children with foster parents and may possibly place some children who would otherwise have had the benefit of a foster home in local authority run homes instead, simply in order that the local authority can exert greater control over their day to day care. Males J dealt with this at paragraph 204 of his judgment. It was referred to also in the Canadian case of KLB v British Columbia [2001] SCR 404, in the context of vicarious liability, at paragraph 26.

The imposition of liability on the local authority might also give rise to another undesirable consequence for children. Important amongst the ways in which, under the statutes of the time, the local authority could discharge its duty to provide accommodation for the child was by allowing the child to live with a parent or relative (see section 21(2) of the Child Care Act 1980). If the local authority had a non-delegable duty towards a child in their care under a care order, making them liable for abusive actions on the part of a foster parent, there seems little principled basis for saying that they would not also be liable for such actions on the part of a parent with whom the child had been placed in this way. That sort of strict liability might well, it seems to me, affect the willingness of the local authority to take what would otherwise be seen as the manageable risk of allowing the child to live at home, thus reducing the chance of reuniting the child with his or her own family where that would, in fact, benefit the child. That is the point made by Males J at paragraph 206.

To these points, I would add that it is material, when considering a possible non-delegable duty rather than liability in negligence, to remember that the local authority has the powers and duties of a parent. I raised earlier my uncertainty as to what the precise implications of this are in the context of non-delegable duty. However, whatever they may be, I think it appropriate to bear in mind that a parent would not have a strict liability for harm caused by someone to whom he or she had entrusted the child's care, for instance a nanny or, to take Burnett LJ's examples, friends or relations. If the local authority's powers and duties under statute are those of a parent, and where it is day to day care by a third party that is under consideration rather than strategic and management decisions on the part of the local authority, it is difficult to see why the local authority's liability should be more onerous than a parent's.

I acknowledge that although I am quite clear in my conclusion that the judge was right that the imposition of a non-delegable duty would not be fair, just and reasonable, I have not expressed firm views about the precise nature of the duty that should be considered to be at the heart of the non-delegable duty argument or about all of the five indicia of non-delegable duty. As Baroness Hale observed at paragraph 28 of the Woodland case, the common law is a dynamic instrument, but caution is needed in developing it. The law in relation to non-delegable duties is still evolving, as the Woodland case itself showed, and it seems to me preferable that I should only determine those matters which are essential to the determination of the appeal which, for the reasons that I hope appear from the preceding paragraphs, I would dismiss.