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British Child Migration to Australia: History, Senate Inquiry and Responsibilities

Author: Antonio Buti BPE (Hons), Dip Ed, MIR, LLB (Hons) (ANU)
Senior Lecturer, Murdoch University School of Law
Issue: Volume 9, Number 4 (December 2002)

Contents:

Acknowledgement: I would like to acknowledge the research assistance of Max Beckerling and Leeanda Paino in the preparation of this article. I would also like to thank Mary Anne Kenny for reading a draft of this article and providing valuable suggestions. All opinions and errors are, of course, those of the author.

    INTRODUCTION

  1. The practise of child migration[1] from the United Kingdom (UK) to her various colonies, which continued on an organised basis from roughly the early 19th century[2] until the mid 1960's has over the last two years received increased attention by the Commonwealth Parliament of Australia. On the motion of Senator Andrew Murray[3] in June 2000 the Australian Commonwealth Senate referred the issue of child migration to a select committee for report and inquiry. That report, entitled Lost Innocents: Righting the Record[4] was published in August 2001 and the Commonwealth government has responded to its various recommendations by establishing a trust for the now adult victims of the scheme. The Lost Innocents Report builds on previous reports from other parliaments -the Legislative Assembly of the Parliament of Western Australia[5] and the UK House of Commons Health Committee.[6] The matter of British child migrants was also touched on in the Queensland government's initiated inquiry into abuse of children in that State's institutions.[7] Further, legal actions of a civil and criminal nature have taken place, with some successful out of court civil settlements and criminal prosecutions and there is talk of further legal action.[8]

  2. The issue of child migration shares the field of its debate with two other contemporary political issues in Australia. The first of these is that of the so-called 'Stolen Generations', a term used to describe the thousands of Indigenous children removed from their families by the governments of Australia during the course of the first six decades of the twentieth century.[9] The current political debate on that question centres on calls from many quarters for the establishment of a trust fund, a compensation tribunal and the expression of a relevant and meaningful apology from the Commonwealth government.[10] The other issue is the extremely contentious Commonwealth government policy of detaining unaccompanied children seeking to make applications for asylum within Australia.[11]

  3. Whether one is talking about the 'Stolen Generations' or the British child migrants or the current detention of unaccompanied child asylum seekers, the issue of conflict between government policies and State guardianship duties is ever present. That is, did the past policies in relation to the 'Stolen Generations' and British child migrants and do the current policies in relation to unaccompanied child asylum seekers contravene the State's responsibility to children under its care? This article examines this issue in relation to the British child migrants.

  4. In focussing on the British child migration scheme to Australia I examine in some detail the Australian Senate Report, Lost Innocents: Righting the Record. However at times, I also refer to the commentary and findings of the other inquiries and reports mentioned above. Initially, I consider the history of British child migration generally, and British child migration to Australia in particular.[12]

    HISTORY OF BRITISH CHILD MIGRATION

  5. Child migration from Britain had its inception in 16[18] when the first group of 100 children emigrated from the UK to Richmond Virginia. In the early part of the 19th Century, about 440 children were sent to South Africa as a substitute for the slave labour, which had recently been abolished.[13] It was after 1850 however and the amendments to the poor laws of the UK, that the practise became an institution. Approximately 100,000 children were shipped to Canada between 1899 and 1967. The majority of these children were employed in rural areas, the boys as farmhands and the girls as domestic servants.[14]

  6. Some 276 children were shipped to Rhodesia (now known as Zimbabwe) between 1946 and 1956, and a further 500 were sent to New Zealand between 1949 and 1954.[15] Estimates of the number sent to Australia vary dramatically, but the majority of analysts, including the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) believe that about 6,500 children arrived in Australia between the 1912 and 1967.[16] In contrast the UK House of Commons Health Committee report states that from 1947 to 1967 between 7,000 and 10,000 children were sent to Australia.[17] This higher number is possibly the result of including youth immigrants - those over 16 years and under [21] years of age.18 Whatever the actual number, from the mid 1920s Australia superseded Canada as the major receiving country. [19] The major destinations for the children in Australia were Western Australia and New South Wales.[20]

  7. The rationale that underlay the active role played by the government of the UK in this scheme was ostensibly welfarist, although parliamentary extracts show clearly that the ulterior motive of separating the human 'wheat from the chaff' was at work. On presenting a bill to the House of Lords in 1852, the purpose of which was to facilitate the funding of child migration, Lord Shaftesbury, said:

  8. The proposition of it [child migration] would he was sure, be most favourably received in the Colonies, and, when understood, would, he doubted not, be equally acceptable to all who cared for the welfare of the rising generation, who would alike be benefited by it, both those who emigrated and those who remained. 21

  9. There were also economic considerations at play - by removing the children from Britain, the colonies and not Britain would have to cope with the drain on its resources in providing for the children. Then there was also the motivation of populating the colonies with 'good white' British stock.

  10. The children who made up the emigration contingents were generally poor. They were often recruited directly from the streets or were from public or private institutions. The agencies, which dealt with the children, were by and large private charitable and religious organisations, the most significant of which was Barnardo's, a philanthropic protestant group run by Dr Thomas Barnardo. The poor law authorities, which accounted for the public sector involvement in the schemes, had a far less significant role to play, although their capacity for involvement was enhanced in 1850 with amendments to the poor law that allow the poor law authorities under certain conditions to expend money for emigration of 'poor orphan or deserted ' children. [22]

  11. The rationale behind the acceptance of the children by the countries to which they were destined was subject to change. Australian governments' involvement in the schemes before World War II was based on an interest in providing the children with rural farm training. This rationale changed after the war when Australia became conscious of the need to bolster its population - the need to 'populate or perish' - especially with good 'British stock'. This need generated a legislative framework, the Immigration (Guardianship of Children) Act 1946 (Cth) ('IGOC Act') which formed the basis of Australia's post-World War II child migration schemes. Although Australia had become the first choice destination following Canada's withdrawal from the scheme in the mid 1920's, the IGOC Act was the first Commonwealth legislative initiative some 20 years later.

    LEAVING FOR AUSTRALIA: LEGAL ISSUES AND CONSENT

    Sources of Emigration and Regulation of that Practise

  12. The children recruited to the emigration schemes came from two principal sources. The first and more significant were private charitable and religious institutions. Families or single parents unable to care for their children often sought assistance from private organisations rather than have their children admitted to workhouses or state orphanages.[23] These private organisations played the most significant role in the emigration schemes, and most notable amongst them before the Second World War were Barnardo's, Fairbridge and the Catholic Church.

  13. The private organisations frequently lost all contact with the parents of children committed to their care. In that circumstance, the organisation played the role of in loco parentis, and assumed thereby all of the legal rights and duties commensurate with a parental guardian.[24] Before the promulgation of the Children Act 1948 (UK), emigration of these 'lost or abandoned' children was regulated by the Custody of Children Act 1891 (UK). That Act 'implied a right in the voluntary agencies to dispose of children apparently abandoned,' and evidence suggests that the discretion in that regard was loosely used.[25]

  14. In 1948, the Children Act 1948 (UK) provided the Secretary of State with regulatory power over the voluntary agencies and local authorities but no regulations were promulgated in relation to the arrangements and activities of voluntary organisations in emigrating children.[26]

  15. Children committed to state institutions fell under the auspices of the poor laws of the UK. The poor law was amended in 1850 in order to facilitate and streamline child migration schemes that were then at their zenith.[27] The relevant amendment allowed poor law children to be emigrated with the consent of the Poor Law Board and the consent of each child before two Justices of the Peace. The poor laws were further amended in 1930 by the Poor Law Amendment Act 1930 (UK) to allow 'orphans or deserted children' to be brought before two Justices of the Peace where their agreement to migration could be officially recorded.[28]

    'Orphaned or Deserted' and Consent

  16. Two significant legal and evidentiary issues are raised here. The first is; what steps were taken by the sending agencies to ensure that a child was in fact 'orphaned or deserted'? Bean and Melville report that, 'the vast majority of child migrants were not orphans; they were far more likely to have been abandoned, illegitimate or from a broken home. They came from all sorts of backgrounds and classes and were by no means all poor.'[29]

  17. Although not all were poor most were from poor families or considered poor law children. However Bean and Melville are correct in stating that most were not orphans [30] - many children were lied to in this respect.[31] And in relation to whether the child was abandoned or deserted, for some of the period under consideration there was an absence of any external verification of a child's 'abandoned' status; this being essentially left it to the private organisations themselves to deem that a child had been 'deserted for all practical purposes.' [32]

  18. The second question is; what steps were taken to ensure that parental consent, in the case of non-orphaned children, and the children's consent in all other cases, was free and informed? The answer here is somewhat mixed. In some cases, parents did consent to the emigration of their children to Australia but how informed was this consent is open to questioned. In some cases, parents consented on assurances that their children would have a better life in Australia and be well cared for - for many children this turned out to be pure fiction. In some cases children were sent off to Australia without parental consent - even in some cases where the whereabouts of the parents was known. It has been suggested that incidences of failure to obtain parental consent was more frequent pre World War II, when British governmental regulations were more lax.[33]

  19. In relation to consent from the child migrants themselves, it has been stated that the quality of consent must be in questioned as many children were manipulated into consenting by being told stories of great adventures in Australia.[34] It should be added that while the Empire Settlement Act 1922 (UK) required the Secretary of State to approve the emigration of children in the care of local authorities, this was not so in relation to children in the care of voluntary or private organisations.

    Increased Government Involvement

  20. In 1922 the government of the UK promulgated a legislative basis for funding migrant schemes. The Empire Settlement Act 1922 (UK) permitted the government to channel funds to the private organisations involved, and to cooperate financially with colonial governments on schemes mutually agreed upon. The government of the UK remained reliant however on the relatively impotent regulatory legislation already in place, and consequently upon the bona fides of the organisations profiting from the schemes in discharging their duties under those laws. The Empire Settlement Act 1922 (UK) essentially formalised a system already in place, as evidenced by the cooperative, three way funding regime financing the Fairbridge farm school in Pinjarra, Western Australia. There, since 1912, subsidies from the British and Australian Commonwealth governments matched the Western Australian State government's subsidy to each child respectively.[35]

  21. In 1927 the British Secretary of State for Dominions Affairs and the Child Emigration Society reached an agreement on funding:

    AND WHEREAS under the Empire Settlement Act 1922 the Secretary of State may co-operate with private organisations in formulating and carrying out schemes of affording joint assistance to persons who intend to settle in any part of His Majesty's Oversea Dominions.[36]

  22. The Empire Settlement Act 1922 (UK) and 1927 agreement, while perhaps not contributing to a tighter regulatory regime, was significant in entrenching the system of subsidised migration and after-care and adding an element of predictability to the profitability of the schemes. Until 1948, the Australian Commonwealth government's involvement was more or less limited to such ad hoc funding arrangements.

  23. In 1948 the government of the UK proclaimed the Children Act 1948 (UK). That Act ostensibly tightened the migration regulatory regime, by granting the Secretary of State power to 'control the making and carrying out by voluntary organisations of arrangements for the emigration of children.' In addition the Act required the Secretary of State to be satisfied that the parents of each child were consulted before emigration, and if that was not possible, that the child's consent was obtained where feasible. The Secretary of State was obliged to refuse his consent unless satisfied that emigration was in the best interests of the child and that suitable arrangements had been made for the child's reception in the country of destination. It is significant to note that the Secretary for State did not promulgate a single regulation under the auspices of this Act to affect a system more attuned to the rights of parents and their children.

  24. The acquiescent encouragement given by the British government to unregulated and profiteering private organisations throughout the 20th century has been seen by some commentators as 'outsourcing' of the emigration question.[37] While the Children Act 1948 (UK) ostensibly provided official and senior government oversight, the reality was quite different. The West Australian Department of Family and Children's Services, noted in its submission to the Australian Senate Community Affairs References Committee; that the private organisations 'in practise dealt with all decision making processes and procedures in relation to the selection of children, consents and migration arrangements.'[38] In light of this submission, it would seem that procuring the consent of the Secretary of State to the migration of a child was an exercise in formality rather than substance.

  25. This part of the article has dealt with the legal, policy and practical framework governing the sourcing and funding of child migrants, and has for that purpose focussed primarily on the legal landscape of the UK. The article now turns to a consideration of the circumstances on arrival in Australia, with a particular focus on the legal arrangements for guardianship, custody and financing. This section also looks at the allegations of mistreatment and abuse of the immigrant children in Australia.

    ARRIVAL IN AUSTRALIA: GUARDIANSHIP, CUSTODY AND RESPONSIBILITY FOR IMMIGRANT CHILDREN

    Pre-World War II Legislative Arrangements

  26. Before 1948 the legal foundations for child immigration was State legislation and the common law of guardianship. Here, I am using guardianship in its broadest possible common law sense - that is 'the full range of rights and powers that can be exercised by an adult in respect of the welfare and upbringing of a child.'[39] And with these rights and powers go duties - to protect the child from harm, to provide for maintenance, to educate and, to show affection and provide emotional support.[40] Moreover, the overarching principle of guardianship law is that the guardian must always act in the best interest of the child - the first and paramount consideration is the best interest of the child or the welfare of the child.[41]

  27. All States had child welfare legislation that placed the onus on the State to provide for the 'care, management and control' of 'state children'.[42] Although the British Child migrants did not come to Australia pursuant to Australian State legislation, arguably the various State governments and responsible ministers and departments, by accepting the immigrant children, had some duty to ensure the welfare of these children. However, it is the British government and the private organisations that aided or facilitated the migrations to Australia that held as equal or even more of a duty to ensure for the welfare of the children - the British government acted in a permissive way in allowing the emigration to take place. The duty that the British government and the private organisations held was of a guardianship nature and arguably this duty is non-delegable. Of course it was possible for the British government to delegate the implementation of that duty but not the responsibility. And the Australian Commonwealth government and State governments also held guardianship type duties to the child migrants- they aided and abetted the emigration from Britain by receiving the children and providing financial assistance.

  28. It is somewhat difficult to state with clarity and authority the actual mix of responsibility held between the British government, the private organisations involved in the UK and Australia, the Australian Commonwealth government and the various state governments. But what can be said is that as a totality they held guardianship duties, to the British child migrants to Australia - the various governments and organisations by legislation, policy and practice held guardianship, whether legal or actual, over the children. I now turn to look at the legislative arrangements post-World War II, where it was made clear that the Australian Commonwealth government or more accurately, the relevant minister was made the guardian of unaccompanied child migrants.

    Post-World War II Legislative Arrangements

  29. As noted earlier, the Australian Commonwealth government did not legislate on the question of child immigrants until 1946, when the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC) was proclaimed. The Commonwealth is granted power to legislate on the issue of immigration under s51xxvii (immigration and emigration) of the Commonwealth Constitution. By s106 of the Constitution, any inconsistent State legislation is overridden and redundant. This Act placed legal guardianship of each child with the Minister of Immigration from the time of arrival until the child reached 21 years of age. The Commonwealth's prior involvement was limited to ad hoc funding of private organisations' endeavours within Australia, such as the Fairbridge farm at Pinjarra.

  30. Section 6 of the IGOC stated that:

    The Act made further provision for the delegation of these powers

    ...to any officer or authority of the Commonwealth or of any State or Territory of the Commonwealth all or any of the powers and functions under this Act (except this power of delegation) so that the delegated powers and functions may be exercised by the delegate with respect to the matters or class of matters, or the child or class of children, specified in the instrument of delegation. [43]

  31. Shortly after the proclamation of the IGOC, the Minister for Immigration delegated his powers under the Act to State authorities. Those authorities in turn entered into indenture agreements with receiving agencies that took on the role of supervision, care and welfare of the child migrants under the auspices of the IGOC and relevant State welfare legislation. It should be added, that although delegation of the actual care and welfare of the British child migrants took place, this did not equate to delegation of guardianship responsibility - the Commonwealth government retained this, whether in full or in part. Under the common law, a guardian, unlike a parent, cannot delegate their 'parental' authority.[44] However, of course delegation may take place via legislation, but this did not take place.[45]

    Funding Arrangements and the Agencies Involved

  32. As noted above, the public sector organisations (poor law authorities) had a relatively minor role to play in the migration schemes. Before 1940, the overwhelming majority of the 3000 odd children sent to Australia were handled by the Barnardos and Fairbridge societies, private religious philanthropic organisations. For example, Fairbridge had established a rural school at Pinjarra in Western Australia in 1912, which provided a model for the institutions run by Barnardos and the Catholic Church before 1939. The Western Australian government paid a subsidy for each child at Pinjarra that was matched by the government of the United Kingdom and the Australian Commonwealth government. These subsidies provided a significant incentive to continue and expand the scheme. [46]

  33. After the Second World War, the Catholic Church became a major player in the emigration of British children to Australia.[47] It was the success of the Fairbridge and Barnardos schemes that inspired the Catholic Church to become more involved in the British child migrant scheme. The motivations of the Catholic Church's increased involvement is varied but arguably it included the desire to give the children a 'more suitable religious training than that which Fairbridge was giving',[48] and 'to maintain Catholic numbers against the Protestants'.[49] Then there was an additional source of income as the British government provided financial assistance to the Catholic Church to aid the transportation to Australia. As was said by the Western Australian Legislative Assembly Select Committee into Child Migration, '[t]he money which migrant children would bring in was more per head than the State placed boys, the numbers of which were falling anyway.'[50]

    The Practices and Allegations

  34. The picture is not pretty - there are numerous accounts of abuse and harm to children who were part of the mass exodus of unaccompanied child migrants form Britain to Australia during the course of the first six decades of the twentieth century. The history presented by some authors is a litany of physical and sexual abuse and cruelty.[51] Even taking into consideration works that are somewhat polemical, one is still faced with four government or parliamentary inquiries that give credence to claims of maltreatment and abuse.

  35. Both the reports of the Western Australian Legislative Assembly Select Committee into Child Migration[52] and the Queensland Commission of Inquiry into Abuse of Children in Queensland Institutions[53] reflect unsatisfactory institutional treatment of the child migrants and even abuse. The UK Health Committee similarly reports of brutal and harsh conditions at the institutions that housed the child migrants.[54]

  36. The most recent inquiry of the Australian Senate Community Affairs References Committee provides further evidence of harsh conditions, cruelty and abuse.[55] The Senate inquiry received submissions and made conclusion that cast serious doubts on the quality of State and private guardianship provided to the British child migrants to Australia. In many instances the fundamental duty of protecting the child from harm was violated, as children were the victims of cruel and excessive punishment, other physical abuse and sexual abuse and assault.

  37. The Senate inquiry also raises questions in relation to education saying that it was 'so limited or virtually non-existent that some child migrants have progressed through life with minimal literacy skills.'[56] For many this lack of adequate education has placed many British child migrants at a severe disadvantage in later life as far as employment and personal development.[57]

  38. In relation to religious education, little is know apart from the fact that the institutions run by the churches ensured the children had a heavy diet of religious instructions. This in itself, does not necessarily breach any guardianship duty. However, if the child was being educated in a religion contrary to the parents' religion, prima facie there would be a guardianship breach.[58] One can surmise with some confidence that this did take place in some cases but whether this amounted to a breach of guardianship duty would depend on the individual circumstances of the parents and the child and what was in the best interest of the child.

  39. A 1896 British Government Departmental report[59] and Eekelaar[60] both comment that often, the authorities viewed parental contact or interference as a problem and thus if the child was considered an orphaned or a deserted child, parental interference would be severely curtailed. This raises questions in relation to affection and emotional support. There was a 'process of depersonalisation' in which individual identity was crushed and the children were not made to feel good about themselves' their families or background. There appeared to be a deliberate policy of separating siblings and to deny the familial heritage of the children, even going to the extent of lying as to the death of parents.[61]

  40. I commenced this section by referring to a negative story - the evidence and conclusion of various reports and inquiries points in that direction. However as the Australian Senate inquiry reports, there were also positive stories of children being happy in the institutions they were sent to, where they were not subjected to abuse and were well cared for by staff.[62] However, unfortunately this was not the case for many British child migrants - the Australian Senate inquiry concludes that many British child migrants were subjected to physical, sexual and psychological abuse 'and other forms of emotional abuse including depersonalisation, arduous and exploitative work regimes, limited educational opportunity, inadequate food and clothing, and poor after care.[63]

  41. The guardianship of British child migrants that was shared by the governments of the UK, Australia and the private societies was in many cases below standard. Based on the anecdotal evidence and the findings and conclusions of a number of official inquiries a number of guardianship breaches took place.

    ACCOUNTABILITY, RESPONSIBILITY AND JUDGEMENT

  42. Eekelaar comments about the difficulty in passing moral judgment on the proponents and actors in the emigration of British children to the colonies.[64] Eekelaar writes that the proponents of the emigration scheme were motivated:

    in their mission of rescue and the vision of exploiting lands of endless opportunities. In their perception, the children were seen as a kind of raw material, fresh vessels receptive to the influences of the new environment, which would drive out whatever pernicious residue remained in them from the old.'[65]

  43. This has some validity in respect to the decision to remove children to Australia, but even here criticism of that decision can be offered. First, there were other motives behind the scheme other than providing the children with a 'new life' - such as economic rewards to the private societies and churches and providing good 'British stock' to the colonies. Second, as the material conditions of the working class in Australia improved from around the turn of the twentieth century, and a little later in the UK, so did the aspirations of the working class family to improve themselves to the bourgeois middle class family lifestyle. This lead to a change in mainstream child welfare policy, with the emphasis being 'on "rescuing the rising generation" by working through the family, supporting existing families, rather than simply removing their children to an institution.'[66] Removing the children from families, as a last resort seemed to have by-passed the British child migrants, as it did for Aboriginal children. Third, there were expert reports available, especially after World War II, noting the potential harm of separation from family.[67]

  44. Little or no excuse can be made for the maltreatment and abuse many suffered in institutional care - amounting to serious breaches of guardianship duties and a violation of the best interests of the children principle. The physical and sexual abuse that many British child migrants suffer could never 'conceivably be argued as normal for the time.'[68]

  45. The various governments of the UK and Australia and the private societies involved must take responsibility for the guardianship breaches that occurred. The mix of responsibility varied over time, with the Australian Commonwealth and State governments incurring greater responsibility after World War II, as the Minister of Immigration became the legal guardian of the British child migrants. And that responsibility is most directed at the lack of accountability of the system. What I mean here is the lack of adequate supervision of the institutions that 'housed, educated and cared' for these children. As the UK House of Commons Health Committee writes:

    These children were placed in large, often isolated, institutions and were often subjected to harsh, sometimes intentionally brutal, regimes of work and discipline, unmodified by any real nurturing or encouragement. The institutions were inadequately monitored and inspected.[69]

  46. The Australian Senate inquiry also expressed concerned about lack of supervision[70] and concluded that while in some cases quality of institutional inspections was good, in many instances, based on documentary evidence, 'the level of inspections undertaken and the consideration of the welfare of the children in the institution appear to have been at best basic and often deficient.'[71]

  47. This supervision was primarily the responsibility of the State governments, who by agreement with the Commonwealth government, had agreed to perform the guardianship duties that the Minister of Immigration was statutory bound to perform. Thus the Minister of Immigration and the Commonwealth Government had a responsibility to ensure that the State government was performing the guardianship duties it has assigned to them. This was acknowledged by the then Minister of Immigration in 1958 when he wrote to the Manager of Barnardos in New South Wales: 'The law will take its course in this matter, but, as legal guardian of the children, I must be personally concerned in seeing that they are adequately protected from the influences disastrous to their character.'[72] Then the government of the UK had a responsibility to ensure that the Australian authorities properly cared and protected the British child citizens it had agreed to send to Australia. In addition the sending agencies had a responsibility 'to investigate more thoroughly the conditions in which the children were living.'[73]

  48. Moreover, their corresponding Australian organisation, who accepted the children, often placing them in their own institutions, had a responsibility to ensure they were properly cared for. This complex and collective responsibility has been recognised by both the Australian Senate inquiry[74] and the UK Health Committee: 'We regard the circumstances now faced by many former child migrants as the collective responsibility of all the governments and agencies involved in the schemes.'[75]

  49. This lack of accountability and failure to prevent or stop the guardianship breaches in relation to protection, education, affection and emotional support had damaging and enduring effects on many British child migrants. The Australian Senate inquiry comments that while some British child migrants were not subjected to abuse, many others were and they are now suffering from a plethora of psychological, emotional and social problems and the suicide rate of child migrants is 'well above the Australian average.'[76]

  50. Maltreatment and abuse of many British child migrants did take place. The various responsible parties failed in their fundamental duties as guardians to these children. As a result of these breaches and lack of accountability, people suffered damage. This raises the issue of reparations and responses, which I now turn to.

    REPARATIONS AND RESPONSES

  51. The Australian Senate inquiry report, considers the issue of reparations. The focus is not on litigation to obtain reparations, but on a general obligation of those governments and agencies responsible for the child migration scheme providing reparations. The right to reparations for wrongful acts has long been recognised as a fundamental principle of law essential to the functioning of legal systems. In 1961, Justice Guha Roy of India wrote:

    That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable.[77]

  52. Professor Theo van Boven in a study commissioned by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities states:

    In accordance with international law, States have the duty to adopt special measures, where to permit expeditious and fully effective reparations. Reparation shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.[78]

    Even though van Boven's study was undetakrn in the context of violations of human rights as recognised under international law, there is no reason why it cannot be applied to breaches of common law guardianship duties. Guardianship law is a pivotal area in the welfare of children and breaches of the duties of guardianship may have severely damaging consequences - in relation to children, breaches of guardianship duties are a serious wrong that demand appropriate redress.[79]

  53. Regardless of any legal duty to provide reparations to those British Child migrants that have suffered damage as a result of breaches of guardianship duties, there is a moral duty. It is difficult not to refer to morality when discussing the issue of reparations for wrongdoings - for example, human rights law is arguably a legal recognition of moral rights and wrongs. Further we in Australia and for that matter, the UK, live in a democracy governed by the rule of law and values of justice, morality and civility. Australian academic, Damian Grace writes that '[c]ivility begins with good manners and treating others - even strangers and opponents - with respect.'[80]

  54. Surely respect for the British child migrants, by the British government and sending agencies that sent them to Australia, and by the Australian Commonwealth and State governments and receiving agencies, demands acceptance of the wrongs that were inflicted of many in this cohort and provision for reparations - reparations to acknowledge the wrongs and reparation to help the healing and rehabilitation process.

  55. Both the UK Health Committee and the Australian Senate inquiry have recognised the need for the responsible parties to provide some form of reparations. The UK Health Committee writes that the UK Government must accept moral responsibility for passing legislation that allowed the migration scheme to flourish and 'is under a moral and legal duty to display concern for the welfare of former child migrants and to offer them meaningful practical assistance. This will lead the way to a just conclusion to a sorry episode in British History.'[81]

  56. Likewise the Australian Senate inquiry remarks that the same obligation applies to the Australian government, especially for child migrants post World War II where the Immigration Minister was the guardian of the unaccompanied immigrant children. And as I have previously pointed out - the Australian Senate inquiry agrees that irrespective of delegation of guardianship (duties) to the States and their child welfare departments, the Commonwealth government and the Minister of Immigration retained ultimate responsibility.[82] However, the Australian Senate inquiry acknowledges that there 'is a shared responsibility between the British, Australian and Australian State governments, and the sending and receiving agencies.'[83]

  57. The Australian Senate inquiry states that all participants are responsible for responding to the consequences of the child migration scheme. The inquiry made a number of recommendations in relation to responses that in many respects follows the van Boven measures of restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. For examples the inquiry has made recommendations in respect of tracing of family records, counselling, access to personal records, family reunification, financing of travel back to Britain, housing and age care assistance to the child migrants, automatic Australian citizenship for the child migrants, removal of legal barriers to litigation against responsible parties, recognition and regret and apology by responsible parties of the wrongs committed under the child migrant scheme, educative programmes, and establishment of appropriate memorials commemorating former child migrants.[84] The responsible parties both in the UK and Australia had made some form of reparations even prior to the Senate inquiry.

  58. Since the Senate inquiry, the Australian Commonwealth government has responded to most of the recommendations made in Lost Innocents: Righting the Record. Whether the responses and reparations made by the Australian government and other responsible parties are adequate requires further examination and another article. In relation to the most recent inquiry of the Australian Commonwealth Senate Community Affairs references Committee, I reproduce in part the media release of Senator Andrew Murray, the person who initiated the inquiry and a British Child migrant to Rhodesia (as it was then known):

    The Australian Democrats welcome the Federal Government's response to 'Lost Innocents: Righting the Record', the Report of the Community Affairs References Committee Inquiry into child migration. ...

    I applaud the Government's intention to contribute $1 million annually for three-years to establish a travel fund to assist child migrants to visit their country of origin in order to re-establish connections with family members. However, I am concerned that the eligibility criteria for access to the travel fund have not been spelt out. ...

    Senator Murray said he was disappointed by the rejection of the committee's recommendation that child migrants be offered automatic Australian citizenship, with the provision for persons to decline citizenship. ...

    The worst response is the Government's rejection of the recommendation that Francis Paul Keaney's MBE be cancelled. Keaney was a monster and to continue to allow him to sully the list of deserved recipients is a great mistake ... .[85]

    CONCLUSION

  59. This article has explored an historical example of child migration. An historical scheme that allowed thousands of British children to be sent to Australia. Some of these children were orphans, but many were not and some were falsely told they were orphans. Most of the children were from poor backgrounds but whether they were abandoned or destitute was not always clear. The British government allowed them to be sent to Australia often without the consent or genuine consent of the parents and/or the child. There were a number of motives driving the emigration policy - there were some good intentions behind the policies - but there were other motives such as financial reward for the sending and receiving agencies and the racial or nationalistic motivation of populating the colonies with 'good British stock'. After World War II, the Australian government was keener to accept British child migrants to 'populate rather then perish'.

  60. The Australian Immigration Minister via legislation became the guardian of the child migrants. He assumed a number of well-recognised common law guardianship duties - duties that via agreement were delegated to the States. However the Minister of Immigration and therefore the Australian government retained the guardianship responsibility for the children. In fact, all participants in the British child migrant scheme - the British and Australian Commonwealth and State governments on one hand and the sending and receiving private agencies on the other hand - collectively were responsible for the breaches of guardianship duties and the resulting consequences and damages. That responsibility centres on the lack of accountability exercised by all parties - a lack of supervision of the institutions to ensure the children's welfare was being well served and protected - fundamental to the role of a guardian. A number of inquiries in the UK and Australia have followed, tracing the history and the allegations of abuse and maltreatment and the damage to the children and, assigning responsibility and recommending reparations. All responsible parties have made responses to calls for reparations and it remains to be investigated as to how adequate these responses have been and what further action is required.

  61. It is hoped that the story - for many a tragic story - of the British child migrants to Australia will provide some lessons for the future. One is that any government or private organisation must think long and hard before it separates children from their parents, families and cultural heritage. If it is ever the correct thing to do it must be a measure of last resort. Just as important is that governments, their agencies and private organisations that agree to take on the role and responsibilities of guardian must realise the magnitude and importance of that office or position. Guardianship of a child places a person or body in a pivotal position in the protection, education and general welfare of the child. It is a role that cannot be approached without commitment and a motivation to do what is always in the best interest of the child.

NOTES

[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.'

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