Local authority loses appeal against £200k award of damages to foster family whose rights were interfered with

About this case:

• Citation:
  [2024] SAC (Civ) 27
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Derek Pyle

The parents and their three foster children, one of whom was aged under 16, raised the action seeking declarator that there had been interferences with their separate rights under Article 8 ECHR. The appellants admitted liability for the claim but challenges the sheriff’s decision on the extent of that admission and the awards she had made.

The appeal was heard by Sheriffs Principal Derek Pyle and Nigel Ross, and Appeal Sheriff Wendy Sheehan. Crawford KC and Byrne KC appeared for the appellant and Munro, advocate, for the respondents.

Erroneous and misleading

In 2012, the first and second respondents became the foster parents of one girl and two boys, all of whom were brought into the care system by the appellant. The council had a fostering contract with an independent agency, which in turn entered into a contract with the respondents. The eldest child suffered from attachment disorder, and her two younger brothers suffered from ADHD.

Due to the challenges faced by the children, the respondents decided to enrol them into a local private school on the basis that all the monies they received from the fostering agency would go towards their fees, with all remaining living expenses being paid from their own pocket. The relationship between the council and the respondents later broke down, partially due to underlying prejudice on the part of the council’s Social Work Department against the decision to send the children to private school.

In January 2017 an incident occurred at the school which resulted in a deterioration in the behaviour of the eldest child, then aged 15. She was removed from her foster parents’ home in December 2017, and a unilateral decision was taken by the council to end the child’s placement with the respondents without any discussion. Erroneous and misleading statements were made against the respondents, including a false allegation of sexual impropriety being levelled at the first respondent.

Before the sheriff, the respondents offered to prove that the acts of omissions of the appellant and its social workers gave rise to unnecessary interference in their family life. It was eventually admitted by the appellant that they were liable for the pursuers’ claim, albeit in the middle of a lengthy proof and after the submission of evidence found to be patently false.

Senior counsel for the appellant submitted that the sheriff had misdirected herself in law in making the award of damages. She did not address whether the appellant’s conduct led to the breakdown of the placement and seemed to approach matters on the basis of restitutio in integrum. Further, there was no evidence that the admitted breaches caused the breakdown of the eldest child’s placement.

Balance of probabilities

Delivering the opinion of the court, Sheriff Principal Pyle said of the appellant’s criticisms of the sheriff: “Ultimately, awards of non-patrimonial loss under the Convention are essentially a jury question. We do not consider that the sheriff has failed to take into account relevant considerations, taken into account irrelevant considerations or otherwise made an error of law. The awards are within the range of awards which were open to her.”

He continued: “Nor do we consider that the sheriff fell into error in her approach to determining whether an award of patrimonial loss should be made. Indeed, she has approached the matter in accordance with the ECHR Practice Directions on Just Satisfaction Claims, which expressly endorses the restitutio in integrum principle as being the appropriate one.”

Turning to causation and quantum, the Sheriff Principal said: “It was unnecessary for [the sheriff] to determine whether the eldest child would definitely have taken advantage of support which ought to have been offered to her, or whether she would have remained within the appellants’ home and family. The test is the balance of probabilities. In any event, the child herself in her evidence, as the sheriff found, considered that the only reason the placement ended was as a result of the decision taken unilaterally by the appellant.”

He concluded: “On the evidence the sheriff was entitled to prefer that of the respondents, namely that a bespoke arrangement had been agreed and that but for the volte-face by the appellant and the other causes of the breakdown of the placement the respondents would have received the sums they spoke to.”

The appeal was therefore refused, with the awards of damages of £8,000, £61,277.80 and £131,107.06 remaining standing.