SARGENT V WALSALL METROPOLITAN BOROUGH COUNCIL AND OTHERS Unreported 27th June 1985 Court of Appeal
This case concerned a child, who was born in 1972. Her mother left her with her father, who was arrested and imprisoned. She and her brother were taken into care under section 1 of the Children Act 1948 by the First Defendant. They were boarded out by the council with the Second and Third Defendants. There was no allegation before the Court of Appeal that the First Defendant, the local authority was negligent in selecting these foster parents, nor that the council exerted inadequate and improper supervision of them. Whilst the child was with her foster parents, she suffered severe burns to the soles of her feet and was in hospital for some time. The trial judge found that the foster mother had been negligent on the principle of res ipsa loquitur but dismissed any claim against the local authority.
The Claimant submitted that whilst the First Defendant was not negligent, it was nonetheless responsible for any negligent act which had been committed by either of the foster parents in the course of their acting as foster parents – on the footing of vicarious liability. That submission was rejected by the trial judge.
Lord Justice Oliver said that it was not suggested that there was a relationship of principal and agent or of a sufficient proximity between the foster parents and the local authority to make the local authority liable for the acts of the foster parents. There was no authority one way or the other, which really assisted in this case. Reference had been made to section 1 of the Children Act 1948 and the Boarding Out of Children Regulations 1955, which were made under that Act, as well as evidence of the structure within the local authority of its Social Services Department and of the terms upon which the child was boarded out and how the system of inspection worked. It was submitted that there was a chain of command, which furnished a sufficiently close relationship to establish vicarious liability.
Oliver LJ said that this submission was a startling one. It would mean that any foster parent who accepted the care of a child and for instance took the child to school and had an accident, would subject the local authority to liability.
Reference was made to sections 1, 2, 11, 12 and 13 of the 1948 Act. Oliver LJ pointed to Section 13, which allowed the local authority to board out a child with a number of persons, including their own parent. That would mean that if the parent was negligent, the local authority would be negligent. That would be a very odd result. Reference was also made to the 1955 regulation, which provided a detailed statutory code including the approval of foster parents and the requirement for them to sign an undertaking to care for the child.
Oliver LJ said that the statute and the regulations showed quite clearly that this was a statutory scheme and that the relationship between the child and the local authority, and the one between the child and the foster parents was regulated simply and solely by the provisions of the statutory scheme. That was entirely inconsistent with the notion that the foster parents were in any way the agents of the local authority in carrying out their duties. The foster parents were the means by which the local authority carried out its own duty. Therefore the trial judge had come to the right conclusion in this case.
Lord Justice Balcombe agreed commenting that he was not aware of any alternations of the relevant provision under the current legislation, namely the Child Care Act 1980, which would have led to any different conclusion.