Bringing-Them-Home-Report-Web

the affair has so worked on the mother’s mind that she has had several seizures of fits since theabduction of their children.… the lads were got from their employers, brought into court and committed without eitherparent knowing of it or having any opportunity to be present, to intimate their mind in the matter… [the father] is strongly opposed to their detention in the industrial school, being of the opinionthat they will probably fret themselves ill there (quoted by Mattingley and Hampton 1992 onpage 159).The Superintendent of a South Australian boys’ home recorded in 1964 that,… he was only held down in town by bluff, and was not a Ward of State … (document suppliedwith confidential submission 179, South Australia: man removed with his brother to apredominantly non-Aboriginal Church of England Boys’ Home as an ‘experiment inassimilation’).Breach of guardianship dutiesThe treatment of children while under ‘protective’ guardianship, or in the care andcustody of a Protector or Protection Board, was often officially recognised at the time asintolerable. Many children suffered greatly while in the ‘care’ of the State. Supervision oftheir placement in institutions or foster care was inadequate to protect them from brutaltreatment and often abuse. Yet these ‘carers’ were placed by law in a position – a‘fiduciary relationship’ – in which they owed legal obligations of care and protection tothe children. The fiduciary duty was ‘to care for, protect and rear’ the ward (KM v HM1992 page 323).A fiduciary relationship exists where one party is dependent or vulnerable and theother has discretionary powers over the first.[T]he critical feature of these relationships is that the fiduciary undertakes or agrees to act for oron behalf of or in the interests of another person in the exercise of a power or discretion whichwill affect the interests of that other person in a legal or practical sense. The relationship betweenthe parties is therefore one which gives the fiduciary a special opportunity to exercise the poweror discretion to the detriment of that other person who is accordingly vulnerable to abuse by thefiduciary of his position (Justice Mason in Hospital Products Ltd v United States SurgicalCorporation 1984 at pages 96-97).The duties of a fiduciary may be spelt out in the legislation creating the fiduciaryrelationship. Where the legislation leaves gaps, these are filled by the common law.The most obvious fiduciary relationship is that between a child and his or herguardian. At common law the relationship of guardian and ward was identical to that offather and child, with the additional obligations that the guardian who is not a parent musttake into account the parent’s wishes regarding the religion and education of the child andmust ‘teach the infant dutiful feeling towards a surviving parent’ (Halsbury 1955 Volume 21