Father whose baby son drowned on kinship placement allowed proof in action against local authority

About this case:

• Citation:
  [2024] CSOH 35
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Weir

Tommy Cruickshanks raised the action against Glasgow City Council after his child, referred to as AB, drowned while in the care of his grandmother, who was averred to have alcohol issues known to the defenders. The defenders argued that the pursuer’s averments were not sufficient to be able to establish any kind of liability on their part.

The case was heard by Lord Weir in the Outer House of the Court of Session. Khurana KC appeared for the pursuer and Pugh KC and Blair, advocate, for the defenders.

Beyond the scope

On 25 August 2018, AB was living with his grandmother Agnes Kerr pursuant to a kinship care placement approved by the defenders. On that date, for reasons unknown but believed to be connected to Mrs Kerr being hungover and asleep at the material time, her adult daughter Kayleigh was given responsibility for the child’s care. At some point, she placed the child in a bathtub and left him unattended, during which time he drowned.

It was averred by the pursuer that he had frequently raised safety concerns with the defenders concerning Agnes Kerr’s misuse of alcohol and care of her own children. An appropriate kinship assessment would have confirmed these issues, and despite these concerns the defenders had discontinued support visits provided by a third-party organisation. The claim was expressed based on the defenders’ social workers being at fault et separatim to Agnes Kerr, who was not convened as a defender. An additional case was pled based on vicarious liability.

It was submitted for the defenders that there were no averments to justify the conclusion that Mrs Kerr was in a relationship akin to employment with them. In any event, the duties the pursuer sought to impose on her were too broad in scope, and what befell the child was beyond the scope of the harm from which the defenders could be reasonably said to be under a duty to protect him from.

For the pursuer it was submitted that the test to be applied at this stage was whether the pursuer’s averments were incapable in law of supporting the claim. None of the cases relied on by the defenders supported their proposition that there could never be vicarious liability in the context of a kinship placement. The scope of the duty assumed by the defenders ought not to be viewed in the abstract but would be shaped by the factual circumstances surrounding the child’s placement.

Status is unclear

In his decision, Lord Weir said of the defenders’ case: “I do not read the case law as going so far as to exclude vicarious liability in all cases where kinship carers are concerned. The most that can be said is that the court might be slow to find that it would arise in the context of arrangements in which family members are involved in the care of a looked-after child. It is not for the court at this stage to determine finally whether the relationship between the defenders and the Kerrs was ‘akin to employment’ but rather whether on a proper consideration of the pleadings the pursuer will inevitably fail to prove that it was.”

He continued: “In the instant case the pursuer has the disadvantage of being one step removed from whatever arrangements were put in place. But the answer to the question whether the defenders ought to be held vicariously liable for the acts and/or omissions of Agnes Kerr and Kayleigh Kerr is embedded in the arrangements which were put in place, and in the absence of evidence on what they were I am not prepared to hold, at least at this stage, that the pursuer is bound to fail in his attempt to assert that they should be so.”

On the case for direct liability, Lord Weir observed: “This is a case where the status and terms of the kinship placement with Agnes Kerr are unclear. The facts ought, therefore, to be established before the scope of the defenders’ duty of care is determined. I therefore decline at this stage to give effect to the defenders’ submission that the scope of duty question must be answered in the negative and the direct action against the defenders dismissed.”

He concluded: “It would appear from the pleadings that the circumstances in which Kayleigh Kerr came to be responsible for the care of the child are largely unknown to both the pursuer and the defenders. I am not therefore prepared to form any concluded view as to whether her involvement, whatever it was, amounted to something new or unexpected. Having determined that, in respect of the other arguments skilfully advanced on behalf of the defenders, the court ought to hear evidence then it seems to me that this issue ought to be treated in the same way.”

Lord Weir therefore allowed a proof before answer on the whole of the pleadings.