Trevorrow State of South Australia

Executive summary

This memorandum addresses the breach of duty of care by the State of South Australia. According to the Supreme Court in the Trevorrow v State of South Australia case, the State of South Australia breached the duty of care by placing the plaintiff, Bruce Trevorrow under foster care without the consent of the plaintiff’s parents. The court upheld the ruling by the lower court which indicated that APB and by extension the State of South Australia owed a duty of care to the plaintiff and by placing him under foster care without due process, it breached this duty.

Brief summary of facts

The facts which result in alleged breaches in this case arise from the wrongful placement of the plaintiff, Bruce Trevorrow, an aboriginal, in foster care. On 25th December 1957, Trevorrow then aged 13 months fell ill and needed medical attention. His father, Joseph Trevorrow, requested the plaintiff to be taken to hospital. The plaintiff was taken to Adelaide Children’s Hospital where he was diagnosed with gastro-enteritis and treated. On 6th January 1958, the plaintiff was discharged and immediately placed under foster care with his foster parents being Mr and Mrs Davies. The placement was carried out by APB (Aboriginal Protection Board) without the consent of the plaintiff’s parents. The plaintiff lived with the foster parents until he was 10 years before he was returned to his biological mother. For all this time, APB did not inform the plaintiff’s parents of his whereabouts even after efforts by the parents to learn what happened to their son.

The legal rules the Supreme Court applied

There are a number of legal rules that the Supreme Court applied in determining whether the State of South Australia owed a duty of care to the plaintiff. The first one is Aboriginal Act of 1934. Section 10 of the Aboriginal Act of 1934 provides that APB was to be legal guardian of aboriginal children irrespective of whether a child has parents or any other living relative. This law stipulated that APB was to pay attention to the needs of Aboriginal children. These needs included education, health, and safety. Based on the provisions of section 10 of the 1934 Act, the Supreme Court established that APB and by extension the State of South Australia had a duty of care for Aboriginal children.

Another legal rule that the Supreme Court applied in determining whether the State of South Australia owed a duty of care to the plaintiff is the Aboriginal Affairs Act of 1962. The Aboriginal Affairs Act, like the Aboriginal Act of 1934 required the Aboriginal Affairs Board which replaced the Aborigines Protection Board to pay attention to the needs of the Aboriginal children and ensure that they are protected. The Aboriginal Affairs Act replaced the Aboriginal Act of 1934.

The Maintenance Act is also another legal rule that the Supreme Court applied to determine if the State of South Australia owed a duty of care to the plaintiff. The Maintenance Act is aimed to ensure the welfare of children and destitute individuals in Australia. The Act also indicates that the government should provide financial assistance to women in order to enable them care for their children. By its provisions, the Maintenance Act implies that the State of South Australia has a duty of care for Aboriginal Children.

Lastly, Supreme Court applied the Children’s Protection Act 1936 to determine whether the State of South Australia owed a duty of care to the plaintiff. This Act relates to the protection and punishment of children. With respect to protection of children, the Act indicates that any individual or party that has the custody, control, care or is in charge of a child and who ill-treats, abandons, neglects, or exposes the child to danger or mistreatment, shall be liable before court of law. In the case of the plaintiff, APB was in charge of aboriginal children and its responsibility was to ensure that aboriginal children are not neglected, ill-treated, or exposed to any form of danger. Based on its mandate, the Supreme established that APB and the State of South Australia as a whole, owed a duty of care to the plaintiff.

Facts considered by court to determine breach

There are a number of facts that the court considered in determining the breach of duty of care. One of them was the role of Aboriginal Protection Board. According to the court, the section 10 of the 1934 Act mandated the Aboriginal Protection Board with the role of acting as a guardian to the aboriginal children. According to section 10, it is role of APB to ensure that aboriginal children are protected from any harm, are provided with education, and have a decent life. Based on this, the court analysed the actions of APB to determine whether the actions of the institution resulted in the protection of the plaintiff or otherwise. Based on its analysis, the court found that breached the duty of care since it placed the plaintiff under foster care without his parent’s consent. In addition, APB actions were not aimed to protect the plaintiff since he was not in any danger or was he living in harmful conditions. At the time of being placed in foster care, the plaintiff was living with his parents who were taking good care of him. There was no indication of the plaintiff living under undesirable conditions. While the family was poor, the parenting that the plaintiff was getting from his parents was satisfactory. The plaintiff was not suffering from malnutrition at the time of being placed under foster care. This implies that the parents were providing enough food for plaintiff. In addition, after placing the plaintiff under foster care, APB did not follow up to determine whether the plaintiff was being taken good care of by his foster parents. As such, the court concluded that APB breached the duty of care when dealing with the plaintiff.

Another fact that the court considered is whether the State of South Australia had a duty of care to the plaintiff. The court determined that the State of Australia had a duty of care towards the plaintiff through the Aboriginal Protection Board. The court established that since APB was a creation of the state and it was answerable to the state, the actions of the board directly implicated the State of South Australia. As such, based on the actions of APB, the State of South Australia breached the duty of care.

Another fact that the court considered was whether the plaintiff suffered any harm due to the actions of APB. The court established the actions of APB resulted in harm to the plaintiff. Bruce Trevorrow suffered from alcoholism and depression as a result of being placed under foster care. As Bruce admitted, growing in foster care contributed to him suffering from depression and alcoholism. This is because after living under foster care for 10 years, Trevorrow was taken back to his parents. Having lived under foster parents for 10 years, Trevorrow found it hard to adapt to his biological parents. Since the foster parents and his biological parents were from different cultural backgrounds and settings, Trevorrow struggled to adapt to his natural home having lived most of his childhood under a different social and cultural setting. In addition, he had grown up knowing that his foster parents were his real parents since in the 10 years he lived under the foster parents, he did not meet his real parents. Due to the sudden shift from one environment to another, Trevorrow suffered psychologically making him to resort to drinking and crime.

Due to his psychological and behavioural problems, his biological mother could not continue to live with him. She thereby sent him away. For majority of his youth, the plaintiff lived in mental homes, reformatories, and centres for disturbed youth. The court established that the plaintiff suffered from psychological disorders throughout his life because he was removed from his parents at infancy. Since the APB was responsible for the removal and the psychological problems suffered by the plaintiff later in his life, the court found that APB breached the duty of care.

The court also considered whether APB foresaw the risks involved in removing the plaintiff from his biological parents and placing him under foster care. The court established that APB had knowledge of the possible risks involved in separating a child from the mother. According to the court, professionals at that time understood the importance of attachment process between a baby and its mother. The court also stated that professionals at time were aware of the psychiatric injury risks involved due to termination of the attachment process between a mother and a child. The court concluded that APB should have considered the psychological repercussions of its actions before removing the plaintiff from his biological parents. The court observed that it was reasonable for APB to enquire about the plaintiff’s family and the reason why the plaintiff was taken to hospital before making the decision to place the plaintiff under foster care. By failing to contact the plaintiff’s family or even making enquiries concerning the plaintiff’s family, the court established that APB breached its duty of care.
The court also considered whether APB used reasonable care in order to prevent the harm that befell the plaintiff. The court established that APB did not use reasonable care that another individual or institution in its position would have applied to prevent harm to the plaintiff. The court established that the APB placed the plaintiff under foster care without considering the possible repercussions. The court also established that the placement of the plaintiff under foster was carried out without the parents’ consent. Lastly, after placing the plaintiff under foster care, APB did not permit the plaintiff’s biological parents to see him or have him back, when such an action would have prevented the psychiatric injury that the plaintiff suffered later in his life. Based on this fact, the court found that APB breached the duty of care when handling the plaintiff.
Lastly, the court looked at the alternatives that were available and ones that APB could have employed in order to prevent the harm that befell that plaintiff. The court established that the APB had a number of alternatives that it could have applied to prevent harm to the plaintiff. One of the alternatives was seeking the permission of the plaintiff’s parents in order to place him under foster care. The court established that APB did not seek consent from the plaintiff’s

parents before placing him under foster care. Seeking permission from the plaintiff’s parents would have ensured that the plaintiff remains with his foster parents all his life thereby avoiding the situation of him having to adapt to another social and cultural environment. Another alternative that APB could have used, according to the court, was giving the plaintiff back to his parents. After being placed under foster care, the plaintiff’s parents began searching for him, trying to find out what happened to their child. However, APB refused to inform the plaintiff’s parents that the plaintiff had been placed under foster care. APB did not also make any effort to give the plaintiff back to his parents even after learning that the parents were willing to take their child back and bring him up in the way they understood best. This would have prevented the situation of the plaintiff having to go back to his parents later in life and suffering from psychological problems due to the inability to adapt to his natural home

The last alternative that APB could have used to prevent harm to the plaintiff was to bring about the transition to his parents slowly. Having knowledge of the possible psychological effects the sudden change in the environment would have on the plaintiff, APB should have tried to inform the plaintiff about his real parents and even enquired from him whether he desired to go back to his real parents or whether he preferred to remain with foster parents. However, APB simply handed him to his mother without putting in place measures that would enable him to cope with the change.

After the case was presented to the lower court, the court, in its analysis, found that APB and by extension, the State of Australia was liable for a number of offences. They include breach of duty of care, false imprisonment, breach of fiduciary duty, procedural fairness, and misfeasance of public office. For example, the lower court found APB culpable of wrongful detention of the plaintiff since it placed Trevorrow under foster care without the consent of his parents and refused to allow the parents to have custody of their baby even after they showed the willingness to do so. With respect to the misfeasance of public office, the lower court established that APB misused its power since while it had control over the welfare of the aboriginal children, it did not have the power to decide the custody of the plaintiff. In addition, the prevailing conditions at the time did not warrant the placement of the plaintiff under foster care since the plaintiff’s parents were alive, willing, and able to take care of the plaintiff.

After the State of Australia appealed the case at the Supreme Court, the Full Court of the Supreme Court upheld a number of judgments by the lower court. Significant among them was the upholding of the breach of duty of care by APB and by extension the State of South Australia. The Full Court of the Supreme Court agreed with the lower court’s analysis that APB breached its duty of care in the way it handled the plaintiff. According to the Full Court, the duty of care is attached to the process of deciding when and how to exercise powers vested on APB under the 1934 Act in removing the plaintiff from his parents’ custody and placing him under foster and then supervising the fostering before returning the plaintiff to his parents. The Full Court indicated that the duty involved APB taking reasonable care to ensure that no harm is caused to the plaintiff. The Full Court concluded that APB knew of the risks involved in separating the child from his mother yet went ahead with the placement of the plaintiff under foster care. As such, like the lower court, the Full Court of the Supreme Court found that APB and by extension the State of South Australia breached the duty of care in placing the plaintiff under foster care.

Conclusion

Basically, this case involved the wrongful placement of the plaintiff under foster care by APB. The legal rules that the Supreme Court applied to determine whether the State of South Australia owed a duty of care to the plaintiff include the Aboriginal Act, the Maintenance Act, the Children’s Protection Act, and the Aboriginal Affairs Act. The facts that the court considered in determining the breach of duty of care include whether APB and the State of Australia were responsible for the plaintiff, whether the plaintiff suffered any form of injury from the actions of APB and by extension the State of South Australia, whether APB were aware of the risks involved and whether there any alternatives that that APB could have taken in handling the situation. In the end, the Supreme Court upheld the ruling of the lower court that APB and by extension the State of South Australia owed a duty to the plaintiff yet breached that duty by placing the plaintiff under foster care without due process.

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