Historic abuse claim fails against foster parents

03 June 2021
Warning: This article contains details about sexual assault and abuse which may be upsetting for some readers. Reader discretion is advised.

The case involved a claim of historic sexual abuse and failure to help after notification, arising out of a foster parent / child relationship.

In Issue

  • Whether a duty of care was owed by each of the defendants (as foster carers/parents) to the plaintiff (as a child); and
  • Whether there was a breach of that established duty of care by reference to numerous findings of fact in a difficult and complex evidentiary matrix.

The background

The plaintiff resided with the defendants, her foster parents (her aunt and uncle), between 5 March 2009 and January 2012, having been placed with them following a break down in her relationship with her parents. The assaults, which were the subject of the claim, were alleged to have occurred over a period of more than two-and-a-half years when the plaintiff was between 16 and 18 years of age.

The claim was for damages to compensate the plaintiff for the alleged trespass to her person in the form of sexual assaults perpetrated by the first defendant (her foster father and uncle), and against the second defendant (her foster mother and aunt) for failing to take reasonable precautions to protect her from the alleged assaults.

The decision at trial

Duty of care

The judge delivered an ex-tempore judgment on day 2 of the hearing, in response to the defendants’ submission that there was no extant duty of care known to law because the allegations arose out of the parent/child relationship. His Honour determined that a duty of care was owed by each of the defendants to the plaintiff. In summary, his Honour stated:

“This is not an action against moral duties of conscientiousness of parenthood. It is an action alleging the most deplorable physical and emotional assaults by one individual on a child, the individual standing in the duty borne relationship of vulnerability of the child, they being a Foster Carer and loco parentis”.

His Honour held that it was the situation which created the enforceable duty, not the relationship itself. For information on the reasons for that decision, please contact the author.

Breach of duty of care

The core issue for determination in this case was whether the plaintiff had proved the allegations of sexual assault at the hand of the first defendant, and if the plaintiff was successful as to the first issue, whether the second defendant was notified of the first defendant’s sexual assault of the plaintiff. The second defendant’s defence was to deny both (1) that the first defendant sexually assaulted the plaintiff and (2) that the plaintiff had notified the second defendant of the alleged assaults.

With respect to proof of the allegations, his Honour remarked [at 24] that he was “to be conscious of the grave nature of the allegations when considering the answer to whether or not the evidence persuades me on the balance of probabilities”.

A hurdle for a plaintiff in historic abuse cases can be the accuracy and reliability of their recollection. With that in mind it was uncontested that the plaintiff suffered from complex mental health issues, and the defendants submitted that the plaintiff’s mental health issues gave insight to the unreliability of her evidence.

His Honour impressed that the plaintiff did not appear to be falsely constructing stories and her struggle to answer questions were not feigned for the purposes of the hearing. Despite this his Honour concluded that the “(inexact and indefinite) differences of description of the sexual assault would be unlikely to have been made by the plaintiff if she was possessed of a real recollection” and ultimately found that on the balance of probabilities, and taking into account the gravity of the allegations, the allegations were not made out.

It followed that as the alleged abuse by the foster father was not made out, the foster mother did not breach her duty of care owed to the plaintiff.

Implications for you

As can be the case with these types of matters, the judgment included a detailed analysis of the plaintiff’s evidence and factual inconsistencies, and rulings as to assessment of credibility and testimony of witnesses.

In this context the decision serves as a reminder of the sometimes unpredictable nature of litigation, particularly in cases of alleged abuse, where a claimant may have difficulty recollecting events bearing in mind the passing of time and the nature of the allegations involved.

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