Bringing-Them-Home-Report-Web

page 211; see also Ex parte Earl of Ilchester 1803-1813).The fiduciary must refrain from harming the ward, must protect the ward from harmand must provide for his or her education (Batley 1996 page 188). There is an obligationof maintenance (Mathew v Brise 1851). Where harm is caused by an employee or adelegate of the fiduciary, the fiduciary is ‘vicariously liable’.A fiduciary cannot escape liability for breach of his or her duties to a ward or otherdependent child by showing that the custody of the child was transferred to someone else.For example, a Protection Board might claim it was not its fault that its wards wereinadequately educated or were exploited or abused while they were living at a church-runorphanage or in foster care. The claim would fail. The legislation did not authorise theBoards to delegate their fiduciary duties and common law does not permit suchdelegation because a ward is especially vulnerable and dependent (Reynolds v Lady Tenham1723, Burnie Port Authority v General Jones 1994 page 62).At the same time, a person with physical custody of the child was also likely to havebeen in a fiduciary relationship because of the child’s dependence and the custodian’sdiscretionary powers, for example, regarding the child’s accommodation andmaintenance, education and employment and extent of contact with family members.This applies, for example, to the management of a church-run orphanage or traininghome where forcibly removed children were placed.The table opposite sets out the statutory obligations created by legislation thatestablished fiduciary relationships between Protectors or Protection Boards and forciblyremoved Aboriginal children (or in some cases all Aboriginal children).The Protectors and other officials were obliged to refrain from causing physicalharm to forcibly removed children, to protect the children from any such harm, to provideindividually and in each child’s best interests for their custody and maintenance, and toprovide for education. Paul Batley suggests that the duty should be broader in the case offorcibly removed children, extending to their emotional well-being, because their parentshad been denied the opportunity to perform this function. In other words, the duty isgreater because the child is entirely and solely dependent on the Board for all thenecessities of both life and psychological and emotional development (1996 page 191).If the nature of the obligation depends on the nature of the relationship, then it is arguable that theBoard’s absolute control over the physical and emotional wellbeing of the child supports therecognition of a duty to provide for the essential needs of the child (page 191).We can readily identify three ways in which Protectors and Boards failed in theirguardianship duties to Indigenous wards or children to whom they had statutoryresponsibilities. In many cases the agents or delegates of the State similary breachedtheir fiduciary duties: missions, church institutions, forster carers and ‘employers’.1. They failed to provide contemporary standards of care to Indigenous children whensuch standards of care were provided to non-Indigenous children in similar