The court concluded that the allegations that the defendant was negligent in failing to take sufficient steps to protect the claimant from her birth family were extremely vague and did not sufficiently set out what the social workers ought to have done in the circumstances. This claim was also not supported by expert evidence, which concluded that the defendant’s approach to the claimant and her family was not negligent as it was, at a time when resources were extremely scarce, standard practice. The claimant’s claim that the defendant was vicariously liable for the abuse perpetrated by the foster parents also failed on the basis that an essential part of foster parents’ roles is independence from the defendant, and so the foster parents were not, to any material degree, under the defendant’s control. Finally, the court held that it would not be fair, just or reasonable to impose a non-delegable duty of care on the defendant, as to do so would impose a heavy financial burden on an organisation providing a critical public service and would also result in onerous and unnecessary checks on prospective foster parents. Fostering releases children from the control of the local authorities and this is risky, but with this risk comes the new benefit of family life: Woodland v Swimming Teachers Association  UKSC 66,  AC 537 considered.
This is a difficult case where the claimant had clearly been wronged but, sadly, could not establish fault in law. The court was quite clearly concerned that if it had made a judgment similar to the case of Woodland and held the defendant had a non-delegable duty towards the claimant, it could have enormous consequences. Local authorities would become more risk averse and vulnerable children in need of urgent foster care would have suffered tremendously.
Sana Bibi and Ellen Lucas, Anthony Gold