The Best Interests of the Child?

Abstract

The common policy of the Australian and Canadian governments of removing Aboriginal children from their families and placing them in institutions is now well documented. The key basis for such removals was a policy of assimilation. As a consequence of these revelations, litigation has been undertaken by members of the stolen generations in both Canada and Australia. This article considers the key cases in Canada and Australia in regard to three entwined strands of such claims: vicarious liability, non-delegable duties and duty of care. While the plaintiffs in the leading Canadian cases were ultimately successful under at least one of their heads of claim, the approaches in these cases in regard to the Crown’s liability for breach of the duty of care and non-delegable duties is inconsistent. Thus, even in Canada, key legal issues pertaining to the Crown’s liability for the Aboriginal residential school experience continues to be unresolved. Within this framework, the article also considers the key Australian decisions where the plaintiffs’ claims against the Crown for vicarious liability and breaches of duty of care were rejected. The discussion in this article indicates that the doors for legal redress are not closed to members of the Australian stolen generation. This article also focuses on whether there was a breach of any such alleged duty of care arising out of the Canadian and Australian removal policies. This is potentially important in both jurisdictions, not just Australia, as the plaintiffs in the Canadian cases that have been determined to date were physically and/or sexually abused whilst detained in institutions pursuant to this removal policy. Thus the main focus in those cases has been on whether the assaults constituted actionable breaches.