In 2010 the State of South Australia v Lampard-Trevorrow case seemed likely to extend the tort of false imprisonment as it has never been done before.
Above all, this case is linked to one of the darkest chapters of Australian history. What M. Trevorrow (the plaintiff) has been through during his childhood is part of a national tragedy, that is « the stolen generation ».
This case is reminiscent of the plaints of thousands aboriginals childrens taken from their parents in order to be raised in « civilized » white families. This Governement’s paternalist and racial policies last more than half a century between the 1900’s and the 1970’s.
As one of the members of this stolen generation M. Trevorrow decided to go on trial. One of the main issues here is whether he was falsely imprisoned by his legal white tutors or not.
In 1957 M. Trevorrow, aged 13 months, was at the hospital because of gastroenteritis. After he recovered the South Australian government officials placed him in a white family. He was to stay here for ten years while his mother would ask the authorities time and again where her child could possibly be.
In first instance the primary judge held amongst many others griefs (like duty of care, misfeasance in public office…) that the plaintiff had been falsely imprisoned.
False imprisonment is characterized by three main elements : complete restriction of the claimant freedom of movement, the defendant’s intention to do so and an action without lawful authorization.
Complete restriction of the claimant’s freedom of movement doesn’t mean that the person is actually behind bars. It could be interpreted as well as the confinment within a specific area. Besides the restriction of movement also imply that there were no means for the claimant to escape from his captivity At least, the claimant is reasonably unaware of the means of escape.
Here one could argue that, as a child, the plaintiff had no choice but to stay with his white family. He was allowed to go to school and move within the area but he was not able to escape even if he wanted to.
Moreover, it seems obvious that the legal white tutors intended to do so. They were in charge of taking care of the child and in order to do so they were exercising their authority towards him so that he would stay in this area.
But one question remains : the plaintiff was a child and he may even not have known that his legal white tutors were not his natural parents. So he didn’t know himself that he was falsely imprisoned ! Is it possible to bring a suit on this ground ?
The Supreme Court of South Australia responded positively to this question in the first part of the reasoning : « The plaintiff’s awareness of deprivation of liberty is not an element of the tort of false imprisonment. » Even if the cause of this lawsuit seems totally fair and and calling for justice it could imply that all parents are potentially falsely imprisoning their children… which is quite effective regarding to the basics facts but the legal arguments seems quite twisted.
Finally, the Supreme Court of South Australia decided not to extend the notion of false imprisonment stating « However, the care and protection given by the carer of a child is not a deprivation of the child’s liberty in the sense required to constitute false imprisonment. » Indeed the tutors had to take care and protect the children they were in charge of. They were just dealing with him as with a child. That’s why the restriction of the claimant freedom of movement is not relevant in this case.
Subsequently, the third and last element of false imprisonment is the lack of lawful authorization. Whereas according to the historian Peter Read, in 1915 an amendment to the Aborigines Protection Act allowed the authorities to remove an aboriginal children even without the parental consent.
For all thoses reasons it is clear that the tort of false imprisonment is not relevant here.
Fortunately the Supreme Court of South Australia finally granted a 775 000 dollars to M. Trevorrow’s widow on the ground of the government’s negligence.
Finally the struggle for justice has been rewarded. And most of all public recognition for the events pertaining to the « stolen generation ». Indeed on the 13 february of 2008 Prime Minister Kevin Rudd pronounced a sorry speech in Parliament to face Australian history and to bring people together and go forward in the future.
Antonin Malinge (ANMAL89)
ninetenths 
March 17, 2016 at 9:34 am
This case reveals incredibly sensitive matters that unfortunately not only happened in Australia (ie: stolen babies case also arose in south America during the Cold War). It is important that Australia finality apologize to those victimes, and provide proper justice. Appart from criminal prosecutions, it could also be important to give civil remedies. However I don’t think the tort of false imprisonment is the most adequate. As you truly mentionned, the victim’s themselves are not aware of the imprisonment (which is not a requirement). The court’s decision to decide that false imprisonment was not relevant there is a good one, as deciding in the other way could have lead to parents being sued by their children.
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March 17, 2016 at 12:45 pm
I totally agree with Carole’s comment. It’s important to provide a fair justice to those victimes. However, the ground of the government’s negligence seems more proper than the one of false imprisonment for all the reasons you mentionned such as the lawfull authorization.
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March 17, 2016 at 6:48 pm
It’s very difficult not to agree with the reasoning of the Supreme Court in this case. It is clear that the conditions which are required in order to sue for false imprisonment are not fulfilled. Nonetheless, it is also true that it is absolutely necessary to provide these victims with adequate compensation.
As Carole said, the decision to allow the victim’s widow to get damages on the ground of the government’s negligence is a good one. In such a particular context, it seems much more appropriate to use this legal basis than any other ground. It was definitely the action which was conducted by South Australian government officials which finally led to the victim’s situation. Moreover, if the judges had identified the tort of false imprisonment in such a case, it would have been an excessive expansion of this legal notion.
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March 17, 2016 at 9:10 pm
This was a very interesting article. I liked the fact that you first showed how unfair and morally wrong the situation of the plaintiff as a child was. And then later demonstrated that on the contrary, when it comes to legislations and applying the Law; it would be disastrous to take into account such a subjective element.
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March 17, 2016 at 9:30 pm
I should first like to thank you for writing about this historical issue that I personnaly wasn’t aware of. I completely agree with the previous comments related to the more apprropriate legal ground. What’s more, I read about these types of cases that the issue of consent was central in the legal reasoning. In fact, the parental consent was often sought and sometimes given to facilitate these practices of child abductions. Then, the parental consent was argued as a legal justification to refuse compensation. Fortunately, in State of South Australia v Lampard-Trevorrow, the lack of consent of the parents permitted to avoid this supplementary debate.
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March 17, 2016 at 9:52 pm
Thank you for this very interesting article about a subject that has to be known nowadays. The reasoning of the Supreme Court, on a legal point of view, is clearly justified. However, the social justification for taking these childs away from their families withtout their consent is baseless.
In my view, the Supreme court and the government made the right balance between avoiding the extreme expansion of “false imprisonment” and the need for a civil remedy for those victims.
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March 17, 2016 at 10:27 pm
I also agree with the supreme court and the previous comments on the false imprisonment issue.However, granted civil remedies and apologie speech are in my opinion the least but the best Australia can do. Indeed,if it still feels that responsibility aren’t fully assumed I do not think that blaming the foster parents is the right way to obtain justice. We then could imagine blaming the government which did for sure his part in the case, but, it wouldn’t be a good way to unify the country, and identify the right responsible could be quite a difficult task That’s why I think the solution is is the best one even if its not ideal.
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March 17, 2016 at 10:52 pm
I approve of the court’s reasoning.
Regardless of the claim’s legal grounds, the plaintiff’s attorney called attention to the importance of written evidence in securing redress: “The key to Mr Trevorrow’s success […] was the existence of paperwork to support his claim. Inadequate histories and the passage of time made it impossible for many people removed from their families to have their cases heard” (Debelle P. & Chandler J., “Stolen generation payout”, The Age, 2 August 2007).
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March 18, 2016 at 9:34 am
In a deeply theoretical way the court’s reasoning does make sense – the caregivers did not imprison the plaintiff, however, there were human rights violations mostly concerning his mother’s parental rights. The motivation of the reward to mister Trevorow’s widow was in my opinion a symbolic act to show the Australian position regarding it’s history. The court’s position might be understandable in the way that they didn’t want to create a precedent on which parents of children who have been placed in foster homes because of maltreatment could bring a clame against the state.
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