Until last week, the law has failed children who have been abused whilst in foster care, providing them with no avenue for financial redress though the civil courts in the form of abuse compensation. Local authorities could only be held to be legally responsible if negligence was proved, but that is notoriously difficult in abuse cases. This left many survivors of abuse in foster care with no legal remedy whatsoever.
Gaping hole in legislation
There has been a gaping hole in the legislation, in that local authorities could not be held to be legally responsible for abuse to a child by foster carers, whereas it could be held responsible for abuse in a children’s home. This, despite the fact that it is the local authority who places the child in foster care in the first place, and has immense control over the child’s life in foster care.
So until now, if a child has been abused in a children’s home run by a local authority, they could sue the local authority for damages, whereas if they are suffer abuse in foster care they could not. Victims abused in both residential care and foster care could recover abuse compensation for the harm they suffered at the hands of staff workers in the children’s home, but not for the harm they suffered at the hands of foster parents.
Anomalous situation put right
The Supreme Court finally put this anomalous situation right last week in the landmark case of Armes v Nottinghamshire County Council. Natasha Armes now 40, had been in local authority care from age seven to 18 in the 1980s where she had been abused by 2 separate foster care families. She argued that the Council was legally responsible for the harm she suffered at the hands of her foster carers which included physical, emotional and sexual abuse. 8 years of seeking justice were finally rewarded when the highest court in the land ruled Nottingham Council was liable, despite being found not to be negligent in connection with the selection or supervision of the foster carers. The local authority were said to be vicariously liable. In other words the Council is legally responsible because foster carers are deemed to be carrying out the local authority’s purpose or enterprise, as they are akin to employees of the Council.
I have long felt the law needs updating. No longer are children in care placed in children’s homes, it being recognised that children are best placed in family environments. So, for some decades now the trend in social work practice has been to place children in the community in foster care. Thankfully, institutions of the past accommodating scores of children have been closed down. Now only mainly smaller residential units remain, with the majority of children being placed with foster carers so that they can live relatively integrated lives in the community. The fact that there has been no legal responsibility by the body which places these children in foster carer has always vexed me.
Prevalence of abuse in foster care
In 2014 York University and the NSPCC did a major study on abuse in residential and foster care, which revealed shocking truths, including that between 2009 and 2012 on average there were between 450 and 550 cases of proven abuse every year in foster care. It was found that most of the abuse or neglect – more than 88% - was perpetrated by carers. In a third of these cases the child was physically harmed and a further 11% were sexually abused.
Shockingly, more than two out of five foster carers in proven abuse cases had been subject to previous allegations – yet they were still caring for children.
With the conviction rate for sexual offences in the UK still appallingly low, the statistics this research has relied upon are bound to be only a small proportion of the actual abuse that goes on in foster care.
Foster care victims urged to speak out after ruling
In a BBC interview Natasha Armes has urged all victims of abuse at the hands of their foster carers to speak out, saying it was “not too late” for other victims to come forward.
This long-awaited judgment brings consistency and clarity to the law, and welcome justice to all those children past, present, and future who suffer heinous acts of abuse in all its forms at the hands of foster parents. It is hoped that there will be heightened vigilance on the part of the local authority to any indication of abuse in foster care, and appropriately robust response when abuse is detected or disclosed, so that vulnerable children will be safe when these ‘home-based professionals’ act out a ‘public parent in private household’. However laudable foster carers are (and I have the utmost respect for them), the local authority cannot escape legal responsibility once they hand vulnerable children over into their care.