Imagine two scenarios; in the first, a 10-year-old school child was attending swimming lessons as part of a school class but the lessons were provided by a third party known as Direct Swimming Services. The child was not properly supervised and got into difficulties in the water and suffered a severe brain injury.
In the second scenario, a child was placed with two sets of foster parents between 1985 and 1988 and she suffered abuse in both placements.
The swimming pool case is Woodland v Essex County Council (2015) a decision of the Supreme Court on appeal. The Claimant won against the local authority because of the existence of five factors making it reasonable to impose a duty which the local authority could not delegate to Direct Swimming Services.
1. The claimant was a vulnerable child requiring protection
2. The claimant was in the care or custody of the school
3. The Claimant had no say in how the education authority acted
4. Though the Education Authority delegated its supervisory role to Direct Swimming Services
5. Though Direct Swimming had been negligent, the Education Authority was liable.
One might have thought that those five factors applied with equal force to the local authority in the foster care case but that case is NA v Nottingham County Council (2015) and in that case, the claimant failed. The Court of Appeal said that the provision of family life was not in the remit of a local authority, and fostering was a function it had to entrust to others. The local authority had discharged, not delegated, its duty and a distinction had to be drawn between a case of negligence and a case of direct abuse or assault and there was no legal precedent in English law for establishing a non-delegable duty of protection from assault. The relationship between a foster carer and a local authority was not akin to an employer and employee relationship which would make it reasonable to impose a duty. The claimant is appealing to the Supreme Court.