LAMBERT AND ANOTHER V CARDIFF COUNTY COUNCIL[2007] EWHC 869 (QB)
FACTS:-
The claim concerned the placement of a teenage girl by the Defendant with the Claimant foster carers, Mr and Mrs Lambert between 1991 and 1993. He made false allegations of sexual misconduct against Mr Lambert and launched a campaign of harassment against the Claimants which caused them both psychiatric injury.
JUDGEMENT:-Judge Hickinbottom considered each head of claim.
a) False representation by the council that it would indemnify the Claimants for all damage caused by such a child.
b) Breach of contract in failing to insure the Claimants against their loss
c) There was a duty of care to effect insurance, to provide information relating to the child, to take reasonable steps to control that child and to advise and support them.
Hickinbottom J said that this claim straddled two Acts, the Childcare Act 1980 and the Children Act 1991. The other relevant regulations were the Boarding Out of Children (Foster Placement) Regulations 1988, which were replaced by the Foster Placement (Children) Regulations 1991. Reference was also made to the Arrangement for Placement of Children (General) Regulations 1991
Hickinbottom J then considered the witnesses. He did not doubt the sincerity of Mr and Mrs Lambert, but he did have considerable concerns about the reliability of the evidence given by Mrs Lambert. He went over their history and their path to becoming professional foster carers. They had fostered for another council, before getting into a dispute with that local authority. They then fostered children for Gwent County Council. They also contacted the Defendant to enquire about fostering for that authority, and they were asked whether they would foster challenging adolescents. There were training sessions prior to approval.
The Claimants alleged that during various meetings with the Defendant prior to being taken on as foster parents, they were assured that they would be covered for all damage caused by a foster child. Hickinbottom J said that he was entirely satisfied that no such representation had been made. Neither of the Claimants could recall the precise conversation.
There was then a written agreement between the parties as to fostering. There were three agreements put in evidence before the court. Hickinbottom J found that the Claimants had signed the second one, and that this agreement had been superseded by the third agreement.
A girl “A” was placed with the Claimants. She came from an extremely troubled background and the recommendation was that she should not be placed with other children. The Claimants alleged that no-one had told them that A had previously made allegations of sexual abuse. However Hickinbottom J found that a council employee had in fact passed all relevant information (including the fact that A had made such an allegation) to the Claimants.
The misrepresentation claim
For the reasons set out above, Hickinbottom J did not accept that the Defendant had made the representations on which the Claimants said that they relied. The possibility of personal injury of any kind was not in the mind of either Mr or Mrs Lambert.
The contractual claim
One of the operative Agreements between the Claimants and the Defendant contained a clause that the Defendant would insurer the carer and his/her family against loss, personal injury or damage caused by a child. That part of the claim turned on two issues, (i) whether the provisions of these agreements were enforceable as private law contracts and (ii) whether the personal injury suffered by the Claimants was covered by the obligation to insure. Hickinbottom J referred to W v Essex County Council [1999] Fam 90 where the court held that the foster parent agreement was not a contract, because it was entered into pursuant to a statute not on terms that were freely negotiated. The court followed Norweb plc v Dixon [1995] 1 WLR 636. Similar comments were made in A v Essex County Council [2004] 1 WLR 1881.
However even if the contract were enforceable, the insurance obligation was limited and would have covered the Claimants.
The tort claims
Hickinbottom J repeated the test in Caparo Industries plc v Dickman [1990] 2 AC 605. The court in S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150 had said that a local authority could not be vicariously liable for the actions of a foster carer. However that did not mean that there was no duty of care at all, and the council had conceded that there was some duty. The issue was (i) the scope of that duty (ii) whether the duty was breached on the facts (iii) whether that breach caused any damage in terms of actionable loss.
Hickinbottom J decided that there was no duty to insure or indemnify. The agreement in place set out the scope of that insurance.
In relation to the failure to provide information, Hickinbottom J referred to the case of A v Essex County Council [2004] 1 WLR 1881 where it was held that (i) the authority did not owe a duty in respect of its decision as to the extent of the information which should be given to the parents (ii) a duty was owed to pass on such information as the authority decided should be given to the parents. It was clear from the evidence that the Defendant considered a prior history of sexual abuse, or a history of abuse against other children to be discloseable information. In the view of Hickinbottom J that was the duty envisaged by A v Essex in this case.
The Claimants had been told by the Defendant that A was disturbed. Even if they had not done so, Hickinbottom J felt that it would not have made any difference to the Claimants, since they had already said that they were willing to take on disturbed children.
However the Defendant was in breach for failing to notify the Claimants about an allegation of sexual abuse made by A against the father of a school friend. In the view of Hickinbottom J this would have made no difference. The Claimants had been involved with a foster child, who had made an allegation of sexual abuse which the Claimants believed to be false. Having been told of one allegation of sexual abuse by A, it was unlikely that the Claimants would have refused to take her, having been told of another incident. They were aware from the start that A was full of fantasizing and that she had made allegations of sexual abuse. They could have withdrawn from the foster placement at that point, but did not do so. They had also had training in “safe caring” and they were committed to caring for adolescent children.
In relation to the information about A being abusive to other children, again Hickinbottom J felt that this would have made no difference.
It was also said that the Defendant owed the Claimants a duty of care to control A. Hickinbottom J was unconvinced that any such duty existed since it would conflict with the duty owed by the local authority to foster children, and such children were not in the day to day control of the authority.
Damage to the Claimants was not foreseeable.
As for the failure to advise and support, the evidence was clear that the Defendant reasonably advised and supported the Claimants after the end of A’s placement with them.
The Claimants claim must fail.
FACTS:-
The claim concerned the placement of a teenage girl by the Defendant with the Claimant foster carers, Mr and Mrs Lambert between 1991 and 1993. He made false allegations of sexual misconduct against Mr Lambert and launched a campaign of harassment against the Claimants which caused them both psychiatric injury.
JUDGEMENT:-Judge Hickinbottom considered each head of claim.
a) False representation by the council that it would indemnify the Claimants for all damage caused by such a child.
b) Breach of contract in failing to insure the Claimants against their loss
c) There was a duty of care to effect insurance, to provide information relating to the child, to take reasonable steps to control that child and to advise and support them.
Hickinbottom J said that this claim straddled two Acts, the Childcare Act 1980 and the Children Act 1991. The other relevant regulations were the Boarding Out of Children (Foster Placement) Regulations 1988, which were replaced by the Foster Placement (Children) Regulations 1991. Reference was also made to the Arrangement for Placement of Children (General) Regulations 1991
Hickinbottom J then considered the witnesses. He did not doubt the sincerity of Mr and Mrs Lambert, but he did have considerable concerns about the reliability of the evidence given by Mrs Lambert. He went over their history and their path to becoming professional foster carers. They had fostered for another council, before getting into a dispute with that local authority. They then fostered children for Gwent County Council. They also contacted the Defendant to enquire about fostering for that authority, and they were asked whether they would foster challenging adolescents. There were training sessions prior to approval.
The Claimants alleged that during various meetings with the Defendant prior to being taken on as foster parents, they were assured that they would be covered for all damage caused by a foster child. Hickinbottom J said that he was entirely satisfied that no such representation had been made. Neither of the Claimants could recall the precise conversation.
There was then a written agreement between the parties as to fostering. There were three agreements put in evidence before the court. Hickinbottom J found that the Claimants had signed the second one, and that this agreement had been superseded by the third agreement.
A girl “A” was placed with the Claimants. She came from an extremely troubled background and the recommendation was that she should not be placed with other children. The Claimants alleged that no-one had told them that A had previously made allegations of sexual abuse. However Hickinbottom J found that a council employee had in fact passed all relevant information (including the fact that A had made such an allegation) to the Claimants.
The misrepresentation claim
For the reasons set out above, Hickinbottom J did not accept that the Defendant had made the representations on which the Claimants said that they relied. The possibility of personal injury of any kind was not in the mind of either Mr or Mrs Lambert.
The contractual claim
One of the operative Agreements between the Claimants and the Defendant contained a clause that the Defendant would insurer the carer and his/her family against loss, personal injury or damage caused by a child. That part of the claim turned on two issues, (i) whether the provisions of these agreements were enforceable as private law contracts and (ii) whether the personal injury suffered by the Claimants was covered by the obligation to insure. Hickinbottom J referred to W v Essex County Council [1999] Fam 90 where the court held that the foster parent agreement was not a contract, because it was entered into pursuant to a statute not on terms that were freely negotiated. The court followed Norweb plc v Dixon [1995] 1 WLR 636. Similar comments were made in A v Essex County Council [2004] 1 WLR 1881.
However even if the contract were enforceable, the insurance obligation was limited and would have covered the Claimants.
The tort claims
Hickinbottom J repeated the test in Caparo Industries plc v Dickman [1990] 2 AC 605. The court in S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150 had said that a local authority could not be vicariously liable for the actions of a foster carer. However that did not mean that there was no duty of care at all, and the council had conceded that there was some duty. The issue was (i) the scope of that duty (ii) whether the duty was breached on the facts (iii) whether that breach caused any damage in terms of actionable loss.
Hickinbottom J decided that there was no duty to insure or indemnify. The agreement in place set out the scope of that insurance.
In relation to the failure to provide information, Hickinbottom J referred to the case of A v Essex County Council [2004] 1 WLR 1881 where it was held that (i) the authority did not owe a duty in respect of its decision as to the extent of the information which should be given to the parents (ii) a duty was owed to pass on such information as the authority decided should be given to the parents. It was clear from the evidence that the Defendant considered a prior history of sexual abuse, or a history of abuse against other children to be discloseable information. In the view of Hickinbottom J that was the duty envisaged by A v Essex in this case.
The Claimants had been told by the Defendant that A was disturbed. Even if they had not done so, Hickinbottom J felt that it would not have made any difference to the Claimants, since they had already said that they were willing to take on disturbed children.
However the Defendant was in breach for failing to notify the Claimants about an allegation of sexual abuse made by A against the father of a school friend. In the view of Hickinbottom J this would have made no difference. The Claimants had been involved with a foster child, who had made an allegation of sexual abuse which the Claimants believed to be false. Having been told of one allegation of sexual abuse by A, it was unlikely that the Claimants would have refused to take her, having been told of another incident. They were aware from the start that A was full of fantasizing and that she had made allegations of sexual abuse. They could have withdrawn from the foster placement at that point, but did not do so. They had also had training in “safe caring” and they were committed to caring for adolescent children.
In relation to the information about A being abusive to other children, again Hickinbottom J felt that this would have made no difference.
It was also said that the Defendant owed the Claimants a duty of care to control A. Hickinbottom J was unconvinced that any such duty existed since it would conflict with the duty owed by the local authority to foster children, and such children were not in the day to day control of the authority.
Damage to the Claimants was not foreseeable.
As for the failure to advise and support, the evidence was clear that the Defendant reasonably advised and supported the Claimants after the end of A’s placement with them.
The Claimants claim must fail.