[1] Child migration in this paper refers to the practise by which unaccompanied children generally under the age of 16 without relatives in Australia, were brought to Australia from the United Kingdom under schemes approved by the various Australian governments. Children from Malta also were sent to Australia. Although I will not be dealing with the Maltese child migration scheme, in many respects it was similar to the British scheme and thus what I say here is also relevant to the Maltese child emigrants
[2] Although child migration from Britain to Virginia commenced in 1618.
[3] Senator Murray is himself a British child migrant to Rhodesia, as it was then known.
[4] Australian Senate Community Affairs References Committee, Lost Innocents: Righting the Record (AGPS Canberra 2001).
[5] Western Australian Legislative Assembly, Select Committee into Child Migration Interim Report (Western Australian State Publisher Perth 1996).
[6] UK House of Commons Health Committee, The Welfare of Former British Child Migrants (HC Paper No 755 1997-98).
[7] L Forde, J Thomason and H Heilpern, Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions (Queensland State Publishers Brisbane 1999) and L Forde, J Thomason and H Heilpern, Closed Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions (Queensland State Publishers Brisbane 2000).
[8] These cases are refer to at above n 4, 219-25,312- 13. An Australian lawyer, Adrian Joel, is considering the option of a class action.
[9] I prefer to avoid the use of the term as it invites unnecessary and time consuming debate on what 'stolen' and 'generations' mean.
[10] Refer to Human Rights and Equal Opportunity Commission, Bringing them home (AGPS Canberra 1997); and T Buti, 'Bringing them home - well not just yet' (1999) 6 JCULR 61.
[11] Refer to Southern Communities Advocacy Legal and Education Services, Submission to National Inquiry into Children in Immigration Detention http://www.humanrights.gov.au/human_rights/children_detention/submissions/scales.html; DIMIA, Submission to National Inquiry into Children in Immigration Detention http://www.immi.gov.au/illegals/hreoc/index.htm; and Hon Philip Ruddock (Minister for Immigration and Multicultural and Indigenous Affairs), Current Issues: HREOC Children in Detention Inquiry: Public Hearings - fact versus fiction, http://www.minister.immi.gov.au/borders/detention/hreoc_index.htm
[12] For further information on the history of British child migration to Australia, refer to above n 4, 11-70. Also see P Bean and J Melville, Lost Children of the Empire (Unwin Hyman London 1989) 110-50; B Coldrey, 'Child Migration and the Catholic Church' (1993) 79 Journal of the Royal Australian Historical Society 199; A Gill, Orphans of the Empire: the shocking story of child migration to Australia (Random House Sydney 1998); and above n 5, 15-48.
[13] Eekelaar, J, '"The Chief Glory": The Export of Children from the United Kingdom' in N Lowe and G Douglas (eds) Families Across Frontiers (Kluwer Academic Publishers Netherlands 1996) 539, 541.
[14] Above n 4, 15.
[15] Ibid,16.
[16] Ibid, 62.
[17] Above n 6, para 13. This figure was agreed to by the Queensland Commission of Inquiry into Abuse of Children in Queensland Institutions, above n 7, 32.
[18] See above n 4, 13, 64.
[19] Canada drastically restricted its intake in the mid 1920's amid waning public support and the after-effects the 'cautious' Bondfiled Delegation Report - M Bondfield, Report to the Secretary of State for the Colonies President of the Oversea Settlement Committee: from the Delegation appointed to obtain Information regarding the System of Child Migration and Settlement in Canada (1924 Cmd 2285).
[20] Above n 7, 32.
[21] See 122 Parl. Debs (3rd Series), cols. 1328-1331 (1852)
[22] Above n 14, 541.
[23] Above n 4, 56.
[24] BM Coldrey, Child Migration: Consent of Parents to their Children's Emigration: The Legal and Moral Dimension (Tamanaraik Press London 1996) 40.
[25] Ibid, 46-7.
[26] Above n 4, 57.
[27] Poor Law Amendment Act 1850 (UK).
[28] Above n 25, 41.
[29] Above n 13, 4.
[30] Above n 14, 551.
[31] Above n 5, 42.
[32] Above n 25, 41.
[33] Above n 4, 57.
[34] Ibid, 59.
[35] Above n 4, 21.
[36] Above n 5, 30.
[37] Above n 4, 21.
[38] Submission of the Department for Family and Children's Services (WA), to the Senate Community Affairs References Committee for their report entitled "Lost Innocents: Righting the Record.
[39] A Dickey Family Law (3rd ed LBC Information Services North Ryde 1997) 323. For further discussion on the meaning of guardianship, custody, care and control and parental responsibility, refer to Neale v Coloquhoun [1944] SASR 119, 129; Wedd v Wedd [1948] SASR 104, 106-7; Capodici v Capodici (1967) 12 FLR 129, 135-136; Hewer v Bryant [1970] 1 QB 357, 373; In the Marriage of Newbery (1977) 27 FLR 246, 248; In the Marriage of McEnearney [1980] FLC 90-866, 75,501; In the Marriage of Chandler [1981] FLC 91-008, 76,112-76, 113; Youngman v Lawson [1981] NSWLR 439, 445-46; Fountain v Alexander (1982) 150 CLR 615, 626-627; A Dickey, Family Law (3rd ed LBC Information Services North Ryde 1997) 324.
[40] W Blackstone, Commentaries on the Laws of England in Four Books (Oxford Clarendon Press 1765-1769) Vol 1 434-35, 448; GW Knowles, A Treatise on the Law and Practice Relating to Infants (4th ed London Sweet & Maxwell 1926; WGW White, 'A Comparison of Some Parental and Guardian Rights' (1980) 3 Can J Fam L 219; Bennet v Minister of Community Welfare [1990] Aust Torts R 68,155, 68,090.
[41] J v C [1970] 669, 697; Fountain v Alexander [1982] 150 CLR 615, 633.
[42] For a list of general child welfare legislation refer to Human Rights and Equal Opportunity Commission, above n 10, 600-48.
[43] IGOC, s 5(1)
[44] Above n 40, W Blackstone, 451; WGW White, 234.
[45] See below for further discussion on the mix of guardianship and general responsibility held by the various participants in the British child migrant scheme.
[46] Above n 4, 21.
[47] The Catholics Church had been involved in migration since the 1920s, but it remained a minor role until after World War II.
[48] Above n 5, 34.
[49] B Coldrey, above n 13, 203.
[50] Above n 5, 34.
[51] In particular refer to P Bean and J Melville, above n 13; A Gill, above n 13; BM Coldrey, Francis Paul Keaney and Child Care in Western Australia (Tamanaraik Publishing Melbourne 1992).
[52] Above n 5.
[53] Above n 7.
[54] Above n 6, paras 13 and 73.
[55] Above n 4, 71-105.
[56] Ibid, 73.
[57] Ibid, 73, 98.
[58] Hawksworth v Hawksworth (1871) 6 LR Ch App 539
[59] A Mundella, Report of the Department Committee appointed by the Local Government Board to Inquire into the Existing System for the Maintenance and Education of Children under the Charge of Managers of District Schools and Boards of Guardians in the Metropolis (C 8027 1896 PP XLIII) para 512.
[60] Above n 14, 552.
[61] Above n 4, 74-75; above n 6, para 45.
[62] Above n 4, 71.
[63] Ibid, 105.
[64] Above n 14, 556.
[65] Ibid, 551.
[66] R van Krieken, Children and the State (Allen & Unwin North Sydney 1991) 106.
[67] For example, refer J Bowlby, Maternal Care and Mental Health (World Health Organisation Geneva 1951). A good summary and discussion of the literature is provided in Aboriginal Legal Service of Western Australia (Inc), Telling Our Story (Aboriginal Legal Service of Western Australia (Inc) Perth 1995) 28-65.
[68] Above n 4, 105.
[69] Above n 6, para 13.
[70] Above n 4, 107-110.
[71] Ibid, 110.
[72] Ibid, 114, submission No. 42, additional information 9.4.01, Attachment C (DIMA).
[73] Above n 6, para 47.
[74] Above n 4, 115.
[75] Above n 6, para 92.
[76] Above n 4, 105.
[77] Justice Roy, 'Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?' (1961) 55 American Journal of International Law 863, 863.
[78] T van Boven, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117 (U.N. Doc. E/CN.4/Sub.2/1996/17, 24 May 1996) 2.
[79] Breaches of guardianship law, would in some cases also amount to fundamental breaches of human rights - such as cruel and inhumane treatment. The difficulty in arguing that the UK and Australia governments have to provide reparations pursuant to treaty recognised human rights is that most of the wrongdoings to the British child migrants occurred prior to both governments being signatories to the plethora of international human rights conventions. However, arguably a case can be made that the breaches of guardianship law occurred at a time when certain human rights were recognised even if they didn't have treaty status and thus as a matter of justice, as espoused by Justice Roy of India, redress must be provided.
[80] D Grace, 'The question of an apology: reconciliation and civility' (2001) 7 Australian Journal of Human Rights 77, 78.
[81] Above n 6, para 94.
[82] Above n 4, 115.
[83] Ibid, 121.
[84]
Above n 4, xv-xix, 122-243.
[85] Senator Andrew Murray, Media Release - 'Righting the Record: Democrats welcome Government recognition of child migrant neglect and abuse' (14 May 2002). In relation to Keaney refer to above n4, 116 where he is introduced as follows: 'Brother Francis Paul Keaney was born in Ireland in 1888, emigrated to Australia in 1912 and joined the Christian Brothers in 1916. By 1919 he was a junior staff member at Clontarf. He served a number of terms as principal including at Clontarf 1936-41 and at Bindoon 1942-44 and 1948-54. Brother Keaney is portrayed as possessing a strong, domineering personality, yet capable of being exceptionally charming to outsiders.'